Here then we have the machinery of the Imperial, or Federal, Judicature. To put the matter simply, the Restrictions imposed on the Irish Parliament depend for their effectiveness on judgments of the Privy Council enforced by the Exchequer Judges.
Consider how the whole arrangement will work.[82] The theoretical operation of the scheme is clear enough. A sues X in an Irish Court, say, to simplify matters, before the Exchequer Judges, for £1,000 due to A for rent. X bases his defence on an Act of the Irish Parliament, drawn by Irish statesmen, and approved presumably by Irish electors. A questions the constitutionality of the Act. The Exchequer Judges are divided in opinion. The matter at last comes before the Privy Council. The Privy Council pronounce the Act void, and give judgment in A's favour. He has a right to recover the £1,000 from X. The whole question in theory is settled. The law is unconstitutional, the law is void; A has obtained judgment. But can the judgment be enforced? This is the essential question; for the object of a plaintiff is to obtain not judgment but payment or execution. What then are the means for enforcing the judgment of the Privy Council when it is not supported by Irish opinion, when it sets aside an Act of the Irish Parliament, and when it may possibly be opposed to the decision, in a similar case, of an Irish Court? The means are the action of the Sheriff. What if the Sheriff is a strong Nationalist, and makes default? The only thing to be done is to appoint an officer empowered to carry out the decree of the Court. Of course if the Irish Ministry are bent on enforcing the judgment, if the Exchequer Court, whose judgment, it may be, has been overruled, is zealous in supporting the authority of the Privy Council, if the Irish people are filled with reverence for tribunals which are really English Courts, all will go well. But Mr. Gladstone himself cannot anticipate that novel constitutional machinery will work with ease, or that on the passing of the Home Rule Bill the disposition, the traditional feelings, and the sympathies of the Irish populace will be changed. Suppose that A is Lord Clanricarde; suppose that X is an evicted tenant. It is not common sense to believe that the judgment in his lordship's favour will as a matter of course take effect. At the present moment the Irish Courts, backed by the whole authority of the Imperial Government and the Irish Executive, often find a difficulty in enforcing their judgments. Will English Courts find it easy to give effect to a judgment in Ireland if the Irish Executive and its servants stand neutral or hostile? What if the Irish House of Commons turn out as unwilling that force should be used for enforcing the decree of the Privy Council as are some English Radicals that force shall be employed for the protection of free labourers against Trades Unionists? What if the officer of the Court is in fact some bailiff trembling for his own life? He may, I am told, call in the military. Of his authority to do this I am not quite sure. He must, I suppose, in the first instance apply to the Irish Home Secretary. The Irish Minister pressed by the opposition turns a deaf ear to the appeal of the bailiff. Application must then be made in some form or other to the English Ministry. The Imperial Cabinet will think more than once before horse, foot, and artillery are, against the wish of the Irish Government, put in movement to enforce the judgment of a British Court, and to obtain £1,000 for Lord Clanricarde. The matter will have become serious; the dignity of the Irish nation will be at stake; the complaints of the plaintiff will be drowned by the indignant clamours of eighty members at Westminster. The essential principle of the new constitution is that there shall be but one Executive in Ireland. The moment that the British Government intervenes to support the judgment of British Courts, we have in Ireland two hostile Executives. We tremble on the verge either of legal revolution or of civil war. An English Cabinet, I suspect, will hardly enforce the unpopular rights of a hated plaintiff by use of arms.
Why, it will be said, assume that the Irish Government and the Irish people will not enforce the law? The assumption, I answer, is justified not only by the history of Ireland, but by general experience. In all federations, even the best ordered, difficulties constantly arise as to the sphere of the Federal Government and the State Governments, and as to the enforcement of judgments delivered by Federal Courts. The authority of the federal tribunals has not always been easily enforced even in the United States. Serious difficulties hamper the action of the Swiss federal authorities. Even in England enthusiasm or conviction occasionally triumphs over legality. English clergymen are at least as reasonable as excited politicians, yet Ritualists have not invariably submitted to the authority of the Privy Council. Why should Irishmen be more reasonable than other men? In Ireland we are trying an entirely novel and dangerous experiment; we are fostering the spirit of nationality under the forms of federation. The Privy Council, hide the matter as you will, represents British power. If Ireland is a nation, the Government of Great Britain is an alien Government; the judgments of the Privy Council are the judgments of an alien Court, and reason forbids us to expect more submission to the decisions of an alien tribunal than to the laws of an alien legislature.
Suppose, however, that British judgments are enforced by the British army. Is this a result in which any Englishman or Irishman could rejoice? Can we say that the new constitution works well when its real and visible sanction is the use of British soldiers? The plain truth is that arrangements for legally restraining the Irish Parliament within the due limits of its powers must be ineffective and unreal and, if the principle of Home Rule be once admitted, the widest must be the wisest form of it. Colonial independence is better for Ireland and safer for England than sham federalism.[83]
Grant, however, that the judgments of the Privy Council can be enforced more easily than I suppose, still even Gladstonians would admit that the proper working of the new constitution depends on two presumptions. The one is that the Irish people are under no strong temptation to oppose the Restrictions or to throw off the obligations imposed upon the Irish Parliament or Government. The other that they possess no ready means for nullifying these Restrictions or obligations.
Each of these assumptions is false.
Restraints ineffective for the protection either of British interests or of individual freedom may be intensely irritating to national sentiment.
The limitations imposed on the powers of the Irish Parliament, or, in other words, of the Irish people, are opposed to the spirit of nationality and independence which Home Rule, it is hoped, will appease or satisfy. They will be hateful therefore not only to that multitude whom Gladstonians call the Irish people, but to every Irishman who is bidden by Gladstonians to consider himself a member of the Irish nation.
The Irish are a martial race; they excel in the practice, and delight in the pageantry, of warfare, but they are forbidden to raise a regiment or man a gunboat. They cannot legally raise a regiment of volunteers, they cannot save their country from invasion. Will they permanently acquiesce in restraints not imposed on the Channel Islands? Irishmen, Unionists no less than Home Rulers, are mostly Protectionists, and believe that tariffs may give to Ireland, not indeed a 'plethora of wealth,' for of this no man out of Bedlam except Mr. Gladstone dreams, but reasonable prosperity. Vain to argue that Protection is folly. Englishmen think so, and Englishmen are right. But English doctrine is not accepted in Germany, in France, in the United States, or in the British Colonies; why should Irishmen be wiser than the inhabitants of every civilised country, except England? The fact, in any case, cannot be altered that most Home Rulers are Protectionists, and that many of them desire Home Rule mainly because they desire Protection for Ireland. Yet Protection, at any rate in the form of a tariff, they cannot have.[84] Take again the Restrictions imposed on the endowment of religion. All English Nonconformists, and many English Churchmen, hold these Restrictions to be in themselves politic and just. But the one strong reason for the concession of Home Rule is that Irishmen disagree with English notions of policy and of justice. No one can assign any reason why Irish statesmen, Catholics or Protestants, might not feel it a matter of duty or of policy to endow the priesthood, to level up instead of levelling down, to enter into some sort of concordat with Rome. It is a policy which is distasteful to English Nonconformists and to most Irish Protestants. But under a system of Home Rule, at any rate, English Nonconformists have no right to dictate the policy of Ireland. There is not the remotest reason why Restrictions on the endowments of religion and the like should not be hateful to Irishmen.
The limitations, in short, on the competence of the Irish Parliament are inconsistent with the fundamental principle of Gladstonian statecraft. It is a policy we are told of trust in the people, the limitations are dictated by distrust of the Irish people; Home Rule is to be granted in order that Irishmen may give effect to Irish ideas; the Restrictions are enacted to check the development of Irish ideas, and to impose English ideas upon the policy of Ireland.