The Framework of Home Rule

by Erskine Childers

It is a grave difficulty that there is no public opinion in Ireland as to the form of the Irish Constitution. That is an almost inevitable result of political conditions past and present. Violent intestinal antagonisms are not favourable to constructive thought. The best men of a country, working in harmony, are needed to devise a good Constitution, and if any Irishman could succeed in convening a Conference like that which created the South African Union, he would be famous and honoured for ever in the annals of the future Ireland. That Conference, we must remember, was itself the result of the grants of Home Rule two years previously, and these grants in their turn were greatly facilitated by the co-operation of Britons and Dutchmen.[73] Canada, in 1840, is a warning of the errors made in constructing a Constitution without such co-operation. Eventually it had to be torn up and refashioned. The best way of avoiding any such error in Ireland's case is to expel the spirit of distrust which animated the framers of the Canadian Union Act of 1840.

C.

So much for the spirit in which we should approach the problem, and I pass to the consideration of the problem itself. What is to be the framework of Home Rule? I take it for granted that there must, in the broad sense, be responsible government, that is to say, an Irish Legislature, with an Irish Cabinet responsible to that Legislature, and, through the Lord-Lieutenant, to the Crown. So much is common ground with nearly all advocates of Home Rule, for I take it that there is no question of reverting to anything in the nature of the abortive Irish Council Bill of 1907.[74] But agreement upon responsible government does not carry us far enough. What are to be the relations between the subordinate Irish Parliament and Government, and the Imperial Parliament and Government?

We immediately feel the need of a scientific nomenclature. In popular parlance, two possible types of Home Rule are recognized—"Federal" and "Colonial." Both, of course, may be "Colonial," because there are Colonial Federations as well as Colonial Unitary States. But, nomenclature apart, the two possible types of Irish Home Rule correspond to two distinct types of subordinate Constitution. The "Colonial" type is peculiar to the British Empire, the other is to be found in many parts of the world—the United States, for example, and Germany, and Switzerland.

Let us examine these types a little more closely, confining ourselves as far as possible to the British Empire, past and present, because within it we can find nearly all the instruction we need. As I showed in my sketch of the growth of Colonial Home Rule, all the Colonies now classed as self-governing, together with the American Colonies before their independence, were originally unitary States, subordinate to the Crown, each looking directly to Great Britain, possessing no constitutional relation with one another, and gradually obtaining their individual local autonomies under the name of "Responsible Government." New Zealand and Newfoundland alone have maintained their original individualities, and their Constitutions, from an historical standpoint, are the best examples of the first of the two types we are considering. Now for the Federal type. Very early in the history of the American Colonies (in 1643) the New England group formed amongst themselves a loose confederation, which was not formally recognized by the British Government, and which perished in 1684. In the next century the War of Independence produced the confederation of all the thirteen Colonies, but this was little more in effect than a very badly contrived alliance for military purposes, and it was a keen sense of the inadequacy of the bond that stimulated the construction of the Great Constitution of 1787, the first Federal Union ever devised by the English-speaking race. All the States combined to confer certain defined powers upon a Federal Parliament, to which each sent representatives, and upon a Federal Executive whose head, the President, all shared in electing. At the same time, each State preserved its own Constitution and the power to amend it, with the one broad condition that it must be Republican, and subject to any limitation upon its powers which the Federal Constitution imposed.

Eighty years elapsed before any similar Federal Union was formed by Colonies within the British Empire. As we have seen, all the various North American Colonies which received Constitutions in the last quarter of the eighteenth century, and all the Australasian Colonies similarly honoured in the nineteenth century, were placed in direct relation to the British Crown and in isolation from one another. Upper Canada had no political ties with Lower Canada, Nova Scotia none with New Brunswick, Victoria none with Tasmania. Several abortive schemes were proposed at one time or another for the Federation of the North American Colonies, but the first measure of amalgamation, namely, the union of the two Canadas in 1840, was a step in the wrong direction, and bore, as I have shown, a marked resemblance, particularly in the motives which dictated it, to the Union of Great Britain and Ireland. It was a compulsory Union, imposed by the Mother Country, and founded on suspicion of the French. So far from being Federal, it was a clumsy and unworkable Legislative Union of the two Provinces, which lasted as long as it did only because the principle of responsible government, established in 1847, covered a multitude of sins. The somewhat similar attempt in Australia in 1843 to amalgamate the two settlements of Port Phillip, afterwards Victoria, and New South Wales, at a time when each had evolved a distinct individuality of its own, was defeated by the strenuous opposition of the Port Phillip colonists, and revoked in 1850.

Meanwhile, all aspirations after Federation in the outlying parts of the Empire were discouraged by the home authorities. The most practical plan of all, Sir George Grey's great scheme of South African Federation in 1859, was nipped in the bud. Canada eventually led the way. The failure of the Canadian Union brought about its dissolution in 1867 by the Provinces concerned, under the sanction of Great Britain (an example of really sensible "dismemberment"), and their voluntary Federation as Ontario and Quebec, together with Nova Scotia and New Brunswick, under the collective title of the Dominion of Canada, and the subsequent inclusion in this Federation of all the North American Provinces with the exception of Newfoundland.

Note, at the outset, that this Federation differed from that of the United States in being founded on the recognition of an organic relation with an external suzerain authority—an authority which the Americans had abjured in framing their independent Republic. In the matter of constitutional relations with Great Britain, the Dominion of Canada now assumed, in its collective capacity, the position formerly held by each individual Province, and still held by Newfoundland. Direct relations between the individual Provinces of the Federation and the Mother Country practically ceased, and were replaced by a Federal relation with the Dominion. Provincial Lieutenant-Governors are appointed by the Dominion Government acting in the name of the Governor-General, not directly by the British Government,[75] and, although in constitutional theory the Crown, as in every least fraction of the Empire, is the sole and immediate source of executive authority, and an indispensable agent in all legislation, not only in the Dominion, but in the Provinces,[76] in actual practice the only organic connection left between a Province and Great Britain is the right of appeal directly to the King in Council, that is, to the Judicial Committee of the Privy Council, without the intervention of the Supreme Court of Canada.

So much for the external relations of the Dominion. In respect to the domestic relations between the Provinces and the Dominion, the Federal principle used in Canada is fundamentally the same as that which obtains in the United States and in every true Federation in the world, whether Monarchical or Republican, whether self-contained, like the United States, Germany, and Switzerland, or linked, as in the British Empire, to a supreme and sovereign Government centred in London. Each Province, as in every genuine Federation, is an imperium in imperio, possessing a Constitution of its own, and delegating central powers to a Federal Government. The nature and extent of the powers thus delegated or reserved, and the character of the Federal Constitution itself, vary widely in different Federations, but we need not consider these differences in any detail. Let us remark generally, however, that the powers of the Canadian Province are much smaller than those of the American State, and that what lawyers call "the residuary powers"—that is, all powers not specifically allotted—belong to the Dominion, whereas in the United States and Switzerland they belong to the State or Canton.

The Australian Commonwealth of 1900 came into being in the same way as the Dominion of Canada, by the voluntary act of the several Colonies concerned—Victoria, New South Wales, Tasmania, South Australia, Western Australia, Queensland—under the sanction of the British Crown and Parliament. New Zealand stood out, and remained, like Newfoundland, a unitary State directly subordinate to Great Britain. Nor, in the matter of relations with the Mother Country, were the federating Colonies merged so completely in the Commonwealth as the Provinces of Canada in the Dominion. The Canadians had not only to construct the Dominion Constitution, but new Constitutions for two of the federating Provinces—Ontario and Quebec—and it was natural, therefore, that they should identify the Provinces more closely with the Dominion. The Australians, having to deal with six ready-made State Constitutions, left them as they were, subject only to the limitations imposed by the Commonwealth Constitution. One of the results is that the State Governors are still appointed directly by the British Government, not by the Commonwealth. This constitutional arrangement, however, has no very practical significance. The right of appeal direct from a State Court to the King in Council, without the intervention of the High Court of Australia, remains, as in Canada, the only direct link between the individual States and the British Government.