A Leap in the Dark / A Criticism of the Principles of Home Rule as Illustrated by the / Bill of 1893

by A. V. Dicey

Notes

[1.]

Its technical title as given in the Bill is the Irish Government Act, 1893.

See Annual Register, 1893 (New Series), p. 180.

See especially pp. 39, 40, 41-43 post.

My readers are earnestly recommended to study Mr. Cambray's Irish Affairs and the Home Rule Question. It brings the history of the Home Rule movement well up to date, and strengthens almost every argument against Home Rule to be found in A Leap in the Dark. The notes in square brackets are new.

References made in this treatise to the Home Rule Bill are, unless otherwise stated, made to the Bill as ordered to be printed by the House of Commons, February 17, 1893. A Leap in the Dark was published months before the Bill was sent up as amended to the House of Lords.

This is true of both of Mr. Gladstone's Home Rule Bills, and must necessarily be true of any Bill which satisfies even for a time the wishes of Home Rulers.

I have substituted New Zealand for Victoria as the example of a typical self-governing colony; the position of Victoria has since 1900 been complicated by the country having become a State of the Australian Commonwealth or Confederation.

See Dicey, Law of Constitution (7th ed.), ch. iii. pp. 136-140. Compare Mill, Rep. Government, ch. xvii.

For the sake of convenience I throughout this treatise refer to the 'Bill to amend the provision for the government of Ireland' under its popular name of the Home Rule Bill, 1893, or simply the Bill. See the Bill in Appendix.

Bill, clause 5.

(The constitutional history of Victoria affords a curious illustration of what will certainly happen in Ireland.) In Victoria the Legislature, though not termed a Parliament in the Constitution Act, 18 & 19 Vict. c. 54, has assumed, under a Victorian Act, the title of the Parliament of Victoria. See Jenks, Government of Victoria, p. 236. Who can doubt that the Irish Legislature will, by an Irish Act, give itself the title of the Parliament of Ireland? I have therefore throughout these pages called the Irish Legislature the Irish Parliament. Few things are more absurd and more noteworthy than the deliberate refusal of English Gladstonians to call the Irish Parliament by its right name. They are willing to create an Irish Parliament; they are not willing to admit that they have created it. See debates of May 9, in The Times, May 10, 1893.

See Bill, clauses 19, 27, 28, 30.

Bill, clauses 3, 4.

Bill, clause 2.

This will perhaps be disputed. Trial by jury, it will be said, is saved by the expression 'due process of law,' in clause 4, sub-clause (5). But this contention is, in my judgment, unfounded, and its validity must in any case be held open to extreme doubt.

See Bill, clauses 10-19, and note especially clause 12, sub-clause (I).

Ibid, clauses 14-16.

Ibid, clause 12, sub-clause (3).

I am aware that to this statement moderate Gladstonians may take exception. What may be the effect of the preamble which reserves the supreme authority of Parliament or of Bill, clause 33, which recognises the right of the Imperial Parliament to legislate for Ireland will be most conveniently considered in the next chapter. In this chapter, be it noted, I am concerned only with the constitution as it is intended to work, and most Gladstonians will admit that as long as the Government of Ireland, including in that expression both the Cabinet and the Parliament, keeps within the terms of the Act, it is not intended that the British Cabinet or Parliament shall, except in certain excepted cases, intervene in Irish affairs.

All the provisions which under clause 9 of the Home Rule Bill, 1893, in its earliest form, were intended to restrain Irish Peers, or members representing Irish constituencies, from deliberating or voting on any Bill or motion the operation of which should be confined to Great Britain, were swept away by the Gladstonian majority before the Home Rule Bill was sent up to the House of Lords. The unfairness of giving to Ireland a Parliament intended to legislate on all, or nearly all, Irish affairs, and at the same time retaining eighty Irish members at Westminster with full power to legislate on all English and Scottish affairs, secured in 1895 the enthusiastic approval by the British electorate of the rejection of the Home Rule Bill of 1893 by the House of Lords.

See Bill, clause 5 (1).

Bill, clauses 22, 23.

'The Imperial Parliament was supreme, but he held the passing of the Home Rule Bill, reserving certain subjects to the Imperial Parliament and committing others to the Parliament of Ireland, as amounting to a compact which would be observed by men of common sense that there would be no capricious or vexatious interference by this Parliament with an action within the appointed sphere of the Parliament of Ireland. If such interference were attempted, the presence in this Parliament of eighty Irish members—a number which had been found to be sufficient to initiate an Irish constitution—would be found sufficient to protect an Irish constitution when it was given.'—Mr. Sexton, Feb. 13, 1893, Times Parliamentary Debates, p. 318.

For evidence that the power of the Imperial Parliament is intended under the new constitution to be subjected to at any rate a moral limit, the reader should note particularly the terms of the Home Rule Bill, clause 12, sub-clause (3).

Thus little, if anything, is said in these pages on the constitution 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 constitution. 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 constitution so much as conditions which affect the prudence or justice of creating the new constitution.

Bill, 1893, Preamble, and clauses 33, 37.

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 pass 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 passing into law repeal the Criminal Law and Procedure (Ireland) Act, 1887, 50 & 51 Vict. c. 20. But if, after the Home Rule Bill passed 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.

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 assuredly 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.)

Mr. Sexton, 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.

Feb. 13, 1893, Times Parliamentary Debates, p. 303.

April 14, 1893, ibid. pp. 439, 440.

Feb. 14, 1893, ibid. pp. 340, 341, 343.

Bill, clause 12, sub-clause (3).

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 Constitution (7th ed.), note 3, p. 65.

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 constitution. 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.

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 constitution, 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 passage 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 disfranchisement of rotten boroughs did or did not form a principle of the measure.

Compare Report of Special Commission, pp. 18, 19.

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

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.

i.e. in 1893.

Mr. Morley at Newcastle, The Times, April 22, 1886.

Now Lord Morley of Blackburn.

i.e. in 1893, and as they continue to be in 1911.

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.]

See p. 43, ante.

See Motley's speech, Times, April 22, 1886.

See Bill, Third Schedule.

This is at any rate the opinion of Mr. Redmond expressed in the Nineteenth Century, Oct. 1892.

Bill, clause 9, sub-clause (3).

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 passed solely by virtue of the Irish vote is, on its becoming an Act, good law, in spite of its having been passed in violation of the constitutional rule laid down in clause 9, sub-clause (3), that an Irish member shall not be entitled to deliberate or vote on any Bill the operation of which is confined to Great Britain.

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.'

23 Geo. III. c. 28.

The reader, in order to understand this account of the proposed constitution of 1886, should remember that under that constitution there were in effect, though not in name, constituted 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 constitution. 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.

Unionist Delusions, pp. 6-9.

The following passage 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 classes of subjects are discussed.' (E. A. Freeman, 'Irish Home Rule and its Analogies,' 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.

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

If there were reason to expect (which there is not) that the Home Rule Bill would pass 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 Assembly 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 Constitution (7th ed.), App. p. 480.

See Bill, clause 14.

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.

See Home Rule Bill, 1893, clause 35, p. 214, post.

'I am not suggesting for a moment that we are going to set up in Ireland two independent and separate Executives. I think the granting of Home Rule in any intelligible sense would be entirely incomplete if it were not supplemented by the granting of executive power, and in my judgment the Executive in Ireland is intended to be and must be dependent upon and responsible to the Irish Legislature in Irish affairs. But that does not in the least prevent the retention in the Crown of the executive government of the United Kingdom, as it provided in this Bill such executive authority as is necessary for the execution of the Imperial laws' (sic). Mr. Asquith, April 14, 1893, Times Parliamentary Debates, p. 440. Compare Hansard, vol. xi. same date, p. 348.

Bill, clause 30.

This is technically expressed in the Bill by the provision that 'the two forces [viz. the Royal Irish Constabulary and the Dublin Metropolitan Police] shall, while they continue, be subject to the control of the Lord Lieutenant as representing Her Majesty.' As to the military or naval forces of the Crown, the Bill contains no provision, but it cannot, it is submitted, be doubted that they will remain subject to the Imperial Government, and, except with the sanction of the Imperial Government, will not be subject to the control of the Irish Executive.

See Bill, clauses 1-5, and as to the Restrictions on its legislative power, see pp. 80-110, post.

See two excellent articles in the Spectator of February 25 and March 4, 1893.

Of course all these statements are to be taken subject to the Restrictions placed on the powers of the Irish Legislature by Bill, clauses 3, 4, pp. 197, 198 post.

These Restrictions, or safeguards, deprive Ireland of powers in fact possessed by the Legislature of any self-governing colony, and I believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893, clause 3, sub-clause (3) (p. 197, post,) as it appears in the original Bill, with the same clause as amended by the House of Commons and sent up to the House of Lords. The original clause forbids the Irish Parliament to make any law in respect (inter alia) of 'naval or military forces or the defence of the realm.' The clause as amended by the House of Commons forbids the Irish Parliament to make any law in respect of '(3.) Navy, Army, Militia, Volunteers, and any other military forces, or the defence of the realm, or forts, or permanent military camps, magazines, arsenals, dockyards, and other needful buildings, or any places purchased for the erection thereof.' In 1893, Unionists and Gladstonians alike were determined that on no pretence whatever should an Irish Parliament be allowed to raise an Irish army, even of volunteers. The very name of 'volunteers,' and the history of 1780-82, explain and justify their prudence.

Clause 4, sub-clause (1) to (4).

For the details of the Restrictions contained in clauses 3 and 4 the reader should study carefully the terms of the Bill itself. See Bill, in Appendix.

In more than one case it is pretty clear that the Restrictions are in themselves ineffective. Take these instances:—

1. The Restrictions do not really prevent the drilling of an armed force. The Act which makes drilling illegal is a statute of 1819, 60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and cannot (it is submitted) be repealed by the Irish Parliament. But this statute of 1819 might easily be evaded, for by sec. 1 meetings for training and drilling may be allowed by any two Justices of the Peace. The Irish Executive might, and probably would, appoint plenty of justices who were willing to allow training and drilling. The men thus trained and drilled could not, I conceive, technically be made a volunteer force, but they might, for all that, be a very dangerous armed body.

2. It is not certain what is the real effect of the provisions whereby no 'person may be deprived of life, liberty or property without due process of law.' Does it, for example, preserve a right to trial by jury? I doubt whether it does. American judgments on the same words in United States Constitution, Amendments, art. 14, would of course have no legal authority in the United Kingdom, and there is a special reason why they often could not be followed. No process would (it is submitted) be considered in an Irish or British Court as not a 'due' process, for which a parallel could be found in the legislation of the Imperial Parliament. But the Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no other enactment, took away the right to trial by jury in cases of trial for treason, murder, etc.

3. Private property might still in fact be taken without just compensation. The Privy Council would not apparently have to consider whether in any given case property was taken without just compensation, but whether a particular law was a law whereby it might be taken without just compensation. Suppose, for example, Sir James Mathew and the commissioners who sat with him were constituted by an Irish Act a Court for determining what compensation should be given for the taking of certain property for public use, and the Act itself provided that just compensation must be given. It is very doubtful how far the Privy Council could treat the Act as invalid, or could in any way enter upon the question whether just compensation had been given. Yet it is plain that such a Court might give very far from just compensation, say to Lord Clanricarde.

Constitution, art. i sect. 10.

See Mr. J. Morley, April 18, 1893, Times Parl. Deb., p. 500.

See Bill, clause 5, sub-clause (3). The language of this clause disposes of the contention put forward by at least one Gladstonian candidate at the last general election [i.e. of 1892], that the veto must of necessity be exercised under the control of the British Cabinet; an arrangement too futile for an ardent Gladstonian to contemplate as possible is therefore actually enacted in the Government of Ireland Bill.

It is to be presumed that the Crown, or in effect the British Cabinet, does not in the case of Ireland retain the power of 'disallowance' under which the Crown occasionally annuls colonial Acts which have received the assent of a colonial Governor. The power to disallow an Irish Act which, though not unconstitutional, has worked injustice, might be of advantage. But in truth the parliamentary methods for enforcing the Restrictions or safeguards are utterly unreal; they do not repay examination; whether there be two sham modes of enforcement, or one, must be to a sensible man a matter of indifference. As to the disallowance of Acts see Rules and Regulations published for the use of the Colonial Office, chap. iii.; Legislative Councils and Assemblies, Rules 48-54; British North America Act, 1868, sections 55-57; England's Case against Home Rule (3rd ed.), p. 33. [Compare Dicey, Law of Constitution (7th ed.), pp. 111-114.]

The appeal to the English Privy Council, both under clauses 19, 22, and 23 of the Bill, appears to be in each case an appeal to the Judicial Committee of the Privy Council. [The particular provisions contained in the Home Rule Bill, 1893, as to an appeal to the Privy Council, etc., are now of little direct importance, but they are worth study as showing the extreme difficulty of providing any satisfactory body for acting as a Court called upon to decide the numerous constitutional questions, as to the legislative power of an Irish Parliament, which must be raised under any Home Rule Act whatever.]

See Bill, clause 23.

See Tocqueville, Démocratie en Amérique, i. chap. viii. pp. 231-250; Bryce, American Commonwealth, ii. (1st ed.) p. 45; ibid. i. ch. 23.

Compare England's Case against Home Rule (3rd ed.), pp. 257, 258.

Compare Bill, clauses 19, 22, pp. 206, 209, post.

Bill, clause 19, sub-clause(4).

Clause 19, sub-clause (5). The whole of the provisions as to the Exchequer Judges are extremely obscure. The jurisdiction and the powers of the Court, should it ever be formed, will need to be defined by a special Act of Parliament. There are special laws regulating the action of the Federal Judiciary both in the United States and in Switzerland. As the matter at present stands the jurisdiction of the Exchequer Judges and of the Privy Council as a Court of Appeal from them may apparently be thus described.

It extends to all legal proceedings in Ireland which

(i) are instituted at the instance of or against the Treasury or Commissioners of Customs, or any of their officers, or

(ii) relate to the election of members to serve in [the Imperial] Parliament, or

(iii) touch any matter not within the powers of the Irish Legislature, or

(iv) touch any matter affected by a law which the Irish Legislature have not power to repeal or alter.

It is possible that sub-clause (4) gives the Exchequer Judges a much wider jurisdiction than is intended by the authors of the Home Rule Bill, and the strictures which have been made on this sub-clause deserve attention. My purpose, however, is not to criticise the details of the Home Rule Bill or to suggest amendments thereto. Its fundamental principle is, in the eyes of every Unionist, unsound, and the Bill itself therefore unamendable. My object is simply to describe and criticise the general constitutional provisions of the Bill and to show their bearing and effect.

Compare England's Case (3rd ed.), pp. 258, 259.

See England's Case (3rd ed.), pp. 214-218.

See Home Rule Bill, clause 3, sub-clause (7) (p. 198, post), and compare same clause slightly amended, in Bill, as sent up to the House of Lords, sub-clause (8).

These strictures on the financial arrangements which were to exist between England and Ireland apply directly to the Home Rule Bill as introduced into the House of Commons, but they are less applicable to the Bill as amended, more or less in favour of Ireland, before the Bill was sent up to the House of Lords. Compare clause 10 of the original Bill with clause 11 of the Bill as amended and brought up to the House of Lords.

Bill, clauses 14, 15, and 16. [Compare with these clauses of the original Bill clauses 13, 14, 15, and 16 of the Bill as amended before being sent to the House of Lords.]

See Fiske, Critical Period of American History, chs. iii. and iv.

See, e.g., letter of Mr. Clancy, M.P., on the Financial Clauses of the Home Rule Bill, Manchester Guardian, April 4, 1893.

Bill, clause 15.

See pp. 72 and 82, ante.

See pp. 79, 80, ante.

Souvenirs de Alexis de Tocqueville, p. 63.

The reader should note the history of the insurrection in Ticino during 1891. It is quite clear that the Liberals of Ticino who had distinctly broken the law were more or less comforted or protected by the Liberal party in the Swiss Federal Assembly. Compare Hilty, Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen Eidgenossenschaft (Jahrgang 1891).

See p. 103, ante. [The force of this illustration has been increased by every Land Act passed since 1893. 'The Imperial Exchequer [i.e. in effect Great Britain] has made a free grant of £17,000,000 towards furthering land purchase; moreover to that end it has expressed its willingness to pledge its credit to the amount of £183,000,000 of which over £35,000,000 has already been raised. The Imperial Exchequer looks to the Irish tenant purchaser for the interest and sinking fund on that loan.'—Cambray, Irish Affairs, p. 214.]

J. M'Carthy, April 10, 1893, Times Parliamentary Debates, p. 354. No part of these quotations is italicised in the report.

J. M'Carthy.

Mr. Sexton.

Mr. Gladstone, April 21, 1893, Times Parliamentary Debates, p. 565.

At Bodyke, June 2, 1887, Mr. M. Davitt said:—'Our people, however, who so leave Ireland are not lost in the Irish cause, for they will join the ranks of the Ireland of retribution beyond the Atlantic; and when the day shall again come that we have a right to manage our own affairs, the sun may some day shine down upon England when we here in Ireland will have the opportunity of having vengeance upon the enemy for its crimes in Ireland.'—Freeman's Journal, June 3, 1887. See 'Notes on the Bill,' published by the Irish Unionist Alliance, p. 368. These expressions were used after the union of hearts.

'But all these matters are, as it were, minor details. They all sink into comparative insignificance before the one great demand—and I almost apologise for mentioning them—because I want you to concentrate your attention on the one great demand which we make, and the one unalterable statement we intend to adhere to, that whether guilty or innocent, these men, according to their lights and their consciences, were trying to serve Ireland; that any of them who were guilty were driven into this course by the misgovernment of Ireland, and the oppression of Ireland by an outside power, and that if we are asked to settle this Irish question, if we are asked to let peace reign where discord and hatred reign at present, there must be no victims—that if there is to be peace there must also be amnesty. I don't discuss the question of guilt or innocence. For the sake of argument I will say that there are some men in jail who are guilty. They must come out as well as the innocent, because their guilt is due to misgovernment in the past.'—Mr. Pierce Mahony, Irish Independent, April 5. See 'Notes on the Bill,' p. 423. 'There is no use in deceiving ourselves upon this matter; we would be fools if we thought that in the next few weeks, or within the next few months, we would succeed in getting our brethren out of prison. I don't believe we will; ... but I am convinced of this, that there is not a man amongst them who will ever be called upon to serve anything like the remainder of his sentence. I am convinced that in a short time—and the extent of its duration depends upon other circumstances—every one of these men will be restored to liberty if only we conduct this agitation with determination, with resolution, and I would say above all with moderation and with wisdom.'—Mr. John Redmond, M.P., Dublin Irish Independent, April 5. See 'Notes on the Bill,' p. 424.

See Mill, Representative Government, 1st ed. p. 300.

Of course I do not for a moment dispute the legal right of Parliament to repeal all or any of the articles of the Treaty of Union with Ireland. I am writing now not upon the law, but upon the ethics of the constitution. My contention is, that, as things stand, the undoubted assent of Great Britain (or even perhaps of England, in the narrower sense) is morally requisite for the repeal or at any rate for the remodelling of the Treaty of Union. Note that Ireland would stand morally and logically in a stronger position if demanding Separation than when demanding a revision of the Act of Union. An example shows my meaning. A, B, and C form a partnership. A is by far the richest, and C by far the poorest of the firm. C finds the terms of partnership onerous. He may have a moral right to retire, but certainly he cannot have a moral, and would hardly under any system of law have a legal, right to say, 'I do not want to leave the firm, but I insist that the terms of partnership be remodelled wholly in my favour.' Nor again is it conceivable that B and C by uniting together could in fairness claim to impose upon A disadvantages the burden of which he had never intended to accept.

See pp. 22-31, ante.

'But who proposed that Ireland should be anything else than an integral part of the United Kingdom (Ministerial cheers), or rather of the Empire?' (Opposition cheers).—Mr. Sexton, April 20, 1893, Times Parliamentary Debates, p. 522. The confusion of ideas and the hesitation implied in Mr. Sexton's expressions are noteworthy.

England adhered with absolute fidelity to her renunciation of the right to legislate for Ireland. Whatever were the other flaws in the Treaty of Union, it was no violation either of 22 Geo. III. c. 63, or of 23 Geo. III. c. 28. The worst features of the method by which the Act of Union was carried would have been avoided had the English Parliament resumed the right to legislate for Ireland. The Treaty of Union depends on Acts both of the British and of the Irish Legislature. This is elementary but has escaped the attention of Mr. Sexton (see Times Parliamentary Debates, Feb. 13, 1893, p. 319), whose investigations into the history of his country are apparently recent.

"The plan that was to be proposed was to be such as, at least in the judgment of its promoters, presented the necessary characteristics—I will not say of finality, because it is a discredited word—but of a real and continuing settlement."—Mr. Gladstone, Feb. 13, 1893, Times Parliamentary Debates, p. 303.

See Mr. Gladstone's Irish Constitution, Contemporary Review, May, 1886, p. 616.

'I have told you candidly my sentiments. I think they are not likely to alter yours.... But hereafter they may be of some use to you, in some future form which your commonwealth may take. In the present it can hardly remain; but before its final settlement it may be obliged to pass, as one of our poets says, "through great varieties of untried being," and in all its transmigrations to be purified by fire and blood.'—Burke's Works, ii. (ed. 1872), p. 517, 'Reflections on the Revolution in France.'

As to the general causes of the strength of the Home Rule movement in England, and the general considerations in its favour, see England's Case against Home Rule (3rd ed.), ch. iii. and iv. pp. 34-127. From the opinions expressed in these chapters I see no reason for receding.

Mr. M'Carthy, April 10, 1893, Times Parliamentary Debate, 353.

[May 6, 1882. Now twenty-nine years back.]

Every one should read Mr. Lecky's letter of April 4, 1893, addressed to the Belfast Chamber of Commerce, and printed in the Chamber's Reply to Mr. Gladstone's speech. It deals immediately not with the relations between England and Ireland, but with the alleged prosperity of Ireland under Grattan's Constitution. But in principle it applies to the point here discussed, and I venture to say that every page of Mr. Lecky's History of England in the Eighteenth Century which refers to Grattan's Parliament bears out the contention, that no inference can be drawn from it as to the successful working, as regards either England or Ireland, of the legislature to be constituted under the Home Rule Bill.

Add also that steamboats and railways have practically, since the time of Grattan, brought Ireland nearer to England, and Dublin nearer to London. At the end of the last or the beginning of this century a Lord Lieutenant was for weeks prevented by adverse winds from crossing from Holyhead to Dublin. Mr. Morley can attend a Cabinet Council at Westminster one afternoon and breakfast next morning in Dublin.

With the conclusions as to Home Rule of my lamented friend Mr. Freeman it is impossible for me to agree. But for that very reason I can the more freely insist upon the merit of his paper on Irish Home Rule and its Analogies as an attempt to clear up our ideas as to the meaning of Home Rule. He, for instance, points out that the relations between Hungary and Austria do not constitute the relation of Home Rule and afford no analogy to the relation which Home Rulers propose to establish between Great Britain and Ireland. See The New Princeton Review for 1888, vol. vi. pp. 172, 190.

A Gladstonian who thinks the case of the Channel Islands in point, would do well to get up the facts of their history. They were no more 'given' a constitution by England than, as most Frenchmen believe, they were conquered from France. See Mr. Haldane, April 7, 1893, Times Parliamentary Debates, p. 333.

They have now (1911) led to political separation, happily without the need for civil war.

See further on this point, Home Rule as Federalism, England's Case against Home Rule (3rd ed.), pp. 160-197, and for Home Rule as Colonial Independence, ib. pp. 197-218.

Then the Chief Justice of the Supreme Court of the United States.

See 'Andrew Jackson,' American Statesmen Series, p. 182.

Hilty, Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen Eidgenossenschaft (Jahrgang 1891), p. 377.

For the story of Kavanagh, Hanlon, and Smith, and their attempted landing at Melbourne, see England's Case (3rd ed.), p. 207.

Mr. Gladstone, February 13, 1893, Times Parliamentary Debates, p. 307.

An eminent and very able Gladstonian M.P. once said in my presence, in effect, for I cannot cite his actual words, that the difference between Gladstonians and Unionists was a difference in their judgment of character or of human nature. He touched I believe far more nearly than do most politicians the root of the differences which divide the authors and the critics of our new constitution.

Report of Special Commission, pp. 54, 55.

Ibid. pp. 53, 119.

Ibid. pp. 119, 120.

Report of Special Commission, p. 120.

Ibid.

This Committee Room was the scene of the desertion of Parnell by the majority of his former followers.

'The crime of the Land League was a trifle compared to the crime of the landlords.'—Mr. Sexton, April 20, 1893, Times Parliamentary Debates, p. 525.

Bryce, American Commonwealth (1st ed.), ii. pp. 190, 191.

Compare ibid. ii. p. 618.

'Carnot me dit avec cette niaiserie que les démocrates honnêtes ne manquent guère de mêler à leur vertu: "Croyez-moi, mon cher collègue, il faut toujours se fier au peuple." Je me rappelle que je lui répondis assez brusquement: "Eh! que ne me disiez-vous cela la veille du 15 mai?"'—Souvenirs de Alexis de Tocqueville, p. 196.

The whole gist of this chapter applies to the state of England in 1911 with greater force than even to its condition in 1893. Home Rule will be carried, if at all, only by a House of Commons freed from the authority of the House of Lords, and from the need of an appeal to the people.

Now sixty-one years.

If any one wishes to see the difference between local self-government and Home Rule, let him compare the Bill for the extension of self-government in Ireland, brought in by the late Ministry, with the Home Rule Bill. The Local Government Bill went very far, some persons may even maintain dangerously far, in creating and in extending the authority of local bodies in Ireland. But it was not Home Rule, or anything like Home Rule. The most extended Local Government Bill and the most restricted Home Rule Bill differ fundamentally in principle. The one in effect denies, the other in effect concedes, a separate national government to Ireland.

See pp. 119-121, ante.

The Bill is printed as it was originally presented to the House of Commons.