If the existence of a Federal constitution would of itself supply the cause for discontent, it is of the very nature of such a constitution to supply the occasions of dispute. Nothing can prevent the rise of burning questions about Federal and State rights. Is nullification or secession, or the refusal to pay Federal taxes a State right? If these questions arise, by whom are they to be settled? Suppose they are referred to a Federal Court, say the Privy Council, is it reasonable to fancy that Irishmen or Englishmen, for that matter, will acquiesce in the decision of grave political issues (say the right of the Federal Government to proclaim martial law at Dublin, or the validity of the Land Act) by any tribunal? For when political issues are referred to the decision of a Court the difficulty is great of enlisting public opinion in favour of its decrees. The theory of the constitution and the expectation of the people is that references to the judges will be events of rare occurrence, and that the Bench, when it acts at all, will act only as interpreter of the constitutional pact. Things are certain to turn out far otherwise. The intervention of the tribunals will in one form or another be constantly evoked, and will be evoked to determine the most burning questions of the day. The Constitution of the United States would be unintelligible without reference to a long line of determined cases; its principles are to be found quite as much in the decisions of the Supreme Court as in its Articles. Swiss Constitutionalists have greatly increased as years have gone on the originally limited powers of the Federal tribunal. The statesmen who drafted the Act constituting the Canadian Dominion fancied they could in effect avoid the necessity for judicial interpretation, but a long series of reports proves the futility of their expectation. Each day increases the mass, and it must be added the importance, of the judgments by which the Privy Council determines questions of constitutional law for the Colonies. Moreover, even laymen soon perceive that interpretation means legislation. It is technically correct to say that the Supreme Court of the United States acts only as interpreter of the Constitution, but we must not be deceived by fictions. The Supreme Court has legislated as truly, and perhaps more effectively than Congress. It has achieved, and from the nature of things was compelled to achieve, a feat forbidden to Congress; it has added to or enlarged the Articles of the Constitution. The good fortune of the United States gave to them in Judge Marshall a profound and statesmanlike lawyer, and the judgments of the great Chief Justice have built up the existing Constitution. He may be counted, if not among its founders, at any rate as its main architect. In this instance judicial authority was combined with political wisdom, and Marshall's opinion was, it is said, rejected by the Court in but two cases, and had it in these instances been followed, would have improved the Constitution. Unfortunately, while one may often secure the fairness one cannot ensure the wisdom of the Bench. Judges err; a final Court of Appeal must often give decisions which are or are supposed to be erroneous, i.e., not a just deduction from the facts and principles which the Court is called upon to consider. No historian will, it is likely, now defend the doctrine of the House of Lords about marriage laid down in Reg. v. Millis. Competent authorities question some of the most important ecclesiastical judgments given by the Judicial Committee of the Privy Council. The decision in the Dred Scott Case, whether right or wrong, did not approve itself to eminent lawyers in the United States. One of the decisions of the Supreme Court in the Legal Tender Cases must have been wrong; whether the last was sound is open to debate. It is when a Court gives what is thought to be an erroneous decision on matters exciting the feelings of large classes that the difficulty of obtaining acquiescence in its judgments is palpable. The judges decided, and it is quite possible decided rightly, that Ship Money was a legal exaction, and that the Crown's dispensing power was authorized by law. Popular opinion branded the judges as sycophants and traitors. Chief Justice Taney and his colleagues decided in effect, and from a legal point of view may have been right in deciding, that slavery was recognised by the Constitution of the United States. Their decision was denounced by the best men in the Union as infamous. The Privy Council have laid down doctrines on matters of ritual which are held to be erroneous by a large body of the clergy, and Ritualists have gone to prison rather than treat the judgment of the Privy Council as of moral validity. Clergymen are not perhaps the most reasonable of mankind, but they are not more unreasonable than political enthusiasts. How then is it possible to expect that a Federal tribunal would command an obedience not yielded willingly to the laws of the Imperial Parliament? Englishmen, indeed, might, it is possible, acquiesce in the ruling of Federal judges, and this for two reasons: they are a legally-minded nation; and (what is of far more consequence) a Federal Court must represent in the main the opinions of the Federal Government—that is, of Great Britain. But it is idle to suppose that Mr. Parnell and Mr. Parnell's followers would find it easier to respect an Imperial or Federal tribunal than to bow to the will of the Imperial Parliament.
Home Rulers would, moreover, soon discover a reason for resistance to the Federal Court or the Federal Government, which from their point of view would be a perfectly valid reason. The Federal Government would, in effect, be the Government of England; the Federal Court would in effect be a Court appointed by the English Government. In a Confederacy where there are many States, the Government of the Federation cannot be identified with even the most powerful of the States; it were ridiculous to assert that the Government at Washington is only the Government of New York under another name. Where a Confederacy consists in reality, if not in name, of two States only, of which the one has at least four or five times the power of the other, the authority of the Confederacy means the authority of the powerful State. "Irish Federalism," if in reality established, would soon generate a demand from Ireland, not unreasonable in itself, under the circumstances of the case, that the whole British Empire should be turned into a Confederacy, under the guidance of a general Congress. Thus alone could Ireland become a real State, the member of a genuine Confederation. Hence arises a new danger. Apply Federalism to Ireland and you immediately provoke demands for autonomy in other parts of the United Kingdom, and for constitutional changes in other parts of the British Empire. Federalism, which in other lands has been a step towards Union, would, it is likely enough, be in our case the first stage towards a dissolution of the United Kingdom into separate States, and hence towards the breaking-up of the British Empire. This is no future or imaginary peril; the mere proposal of Home Rule, under something like a Federal form, has already made it an immediate and pressing danger. Sir Gavan Duffy, by far the ablest among the Irish advocates of Home Rule, predicts that before ten years have elapsed there will be a Federation of the Empire.[[37]] A majority of Scotch electors support the policy of Mr. Gladstone, and forthwith a most respectable Scotch periodical puts forward a plan of Home Rule for Scotland. Canon MacColl already suggests that we should make tentatively an experiment capable of development into a permanent system on the lines of the American Constitution, and make it not only in Ireland, but also perhaps gradually in Scotland, and even in Wales.[[38]] It is unnecessary to discuss Canon MacColl's argument at length. When he tells his readers that "the Constitution which Mr. Gladstone desires to create in Ireland is modelled on the system existing in the great colonies of the Empire; there are certain variations and some novelties in the Irish scheme, but these are the lines on which it is drawn;" he ventures a statement on which, as a lawyer, I need make but one comment. It is a statement as erroneous and misleading as can be any assertion made in good faith by a writer who must be presumed to have studied the measure of which he is speaking. When the same authority asks why should a system which imparts strength to America, to Austria, and to Germany, disintegrate and ruin the British Empire, he raises an inquiry which does not admit of an answer, since it assumes the identity of things which are radically different. The system which may or may not impart strength to Austria is no more the system which imparts strength to America, than the system which imparts strength to England is the same as the system which does or does not impart strength to Russia. To lump under one head every policy which can by any straining of the terms be brought under the heads of "Federalism" or "Home Rule," is neither more nor less absurd than to classify together every Constitution which can be called a monarchy.
But while I write these pages a more significant indication of this danger has appeared. Mr. Gladstone's own method of interpreting his own past utterances makes it the duty of his critics to weigh well not only his direct statements, but his suggestions; and there is, I think, no possible unfairness in construing the language of his pamphlet on the Irish Question as an intimation that he already entertains, if he does not favour, the idea of applying the Federal principle to Scotland and to Wales.[[39]] Federalism is the solvent which, if applied to one part of the United Kingdom, will undo the work not only of Pitt, but of Somers, of Henry VIII., and of Edward I. Meanwhile, the one prediction which may be made with absolute confidence is that Federalism would not generate that goodwill between England and Ireland which, could it be produced, would, in my judgment at least, be an adequate compensation even for the evils and the inconveniences of the Federal system.
To the view of Federalism here maintained there exist one or two objections, so obvious that without some reference to them my argument would lack completeness.
Federalism, it is urged, has succeeded in Switzerland and in America; it may, therefore, succeed in the United Kingdom.
If the general drift of my argument does not sufficiently answer this objection, two special replies lie near at hand. In the case both of Switzerland and of America, a Federal Constitution supplied the means by which States, conscious of a common national feeling, have approached to political unity. It were a rash inference from this fact, that when two parts of one nation are found (as must be asserted by any Home Ruler) not to be animated by a common feeling of nationality, a Federal Constitution is the proper means by which to keep them in union. The more natural deduction from the general history of Federalism is, that a confederation is an imperfect political union, transitory in its nature, and tending either to pass into one really united State, or to break up into the different States which compose the Federation.
If, again, the example either of America or of Switzerland is to teach us anything worth knowing, the history of those countries must be read as a whole. It will then be seen that the two most successful confederacies in the world have been kept together only by the decisive triumph through force of arms of the central power over real or alleged State rights. General Dufour in Switzerland, General Grant and General Sherman in America, were the true interpreters and preservers of the constitutional pact. This undoubted fact hardly suits the theories of Irish Federalists.
Nor ought we to stop at this point. Citizens of the Union filled with justifiable pride at the success of the American Constitution assume that a Federal Government is in itself absolutely the best form of government, that in any country where it can be adopted it must be an improvement on the existing institutions of the land, and that as compared with the constitutional monarchy of England federalism exhibits no special faults from which English constitutionalism is free. This assumption is perfectly natural; it resembles that absolute faith in the virtues of the British Constitution which reached its culminating point when Burke's intimate friend and pupil, Gilbert Elliott, himself no mean statesman, went to Corsica to establish a miniature copy of English Parliamentary institutions. But in each case a faith which is natural will also be pronounced by any candid judge to be unfounded. Federalism has in its very essence, and even as it exists in America, at least two special faults. It distracts the allegiance of citizens, and what is even more to the present point, it does not provide sufficient protection for the legal rights of unpopular minorities. There is not, and never was, a word in the Articles of the Constitution forbidding American citizens to criticise the institutions of the State. An American Abolitionist had as much right to denounce slavery at Boston, or for that matter at Charlestown, as an English Abolitionist had to denounce slavery in London or Liverpool. It were ridiculous to maintain that the right was one which either Lloyd Garrison or his disciples were able to exercise. Mr. Godkin[[40]] has repeated with perfect fairness the tale of the persecutions suffered by Prudence Crandall in Connecticut because she chose in exercise of her legal and moral rights to educate young women of colour. Mr. Godkin apparently draws, as I have already pointed out, from the fact an inference—which I confess myself not well able to follow—against all attempts to enforce an unpopular law. The more natural conclusion is that the Federal Government was not able to protect the rights of individuals against strong local sentiment. This moral at any rate has an obvious application to any scheme of Federalism for Ireland.
The experience of Canada, again, is adduced to prove that a Federal constitution is compatible with loyalty to the British Crown. Why should an arrangement which produces peace, prosperity, and loyalty across the Atlantic not be applied to Ireland?
The answer is, that the case of Canada is as regards Federalism irrelevant. Canada is not part of a British Federation. The Dominion as a whole is simply a colony, standing essentially in the same relation to England as Victoria or New South Wales. The laws of the Parliament that meets at Ottawa need the Royal sanction, or, in other words, may be vetoed, or rather not approved, by the English Ministry of the day. The Act itself on which the existence of the Canadian constitution depends is an Act of the British Parliament, and cannot be modified by any other authority. The British Parliament is supreme in Canada as throughout the British dominions; and Canada sends no representatives to the British Parliament. The provinces, no doubt, which compose the Dominion are under an Act of Parliament a Federation; but the dangers and difficulties of Federalism are to a great extent avoided by the supremacy of the British Crown. These difficulties, however, do arise. If any one will study the "Letellier case," he will soon perceive that Canada has exhibited the germ of the conflict between the central authority of the Dominion and the "State right" of the provinces; he will also perceive that the conflict was determined by a reference to the English Ministry, who in effect gave judgment in favour of the Dominion. The example of Canada suggests, if anything, that Irish difficulties might be solved by turning Ireland into a colony without representatives in the Imperial Parliament.