The first thing necessary for securing public and private liberty in a country like Ireland, where party feeling runs high and internal disputes have a bitterness from which more fortunate countries are free, is a strong independent and impartial administration of the law. This can only be secured by freeing the Courts from any kind of interference or control on the part of the Executive, and by ensuring that the whole armed forces of the Executive should be at the disposal of the Courts for executing and enforcing their decrees. Let us only assume a case to arise after the statutory period had elapsed, such as is now of frequent occurrence in the Irish Courts. The Land Judge, for instance, or the Judge of the Court of Bankruptcy, finds it necessary to order the arrest of the chairman and secretary of a local branch of the United Irish League for interfering by gross intimidation with a sale under the order of his Court. The case excites a good deal of local feeling and the arrests can only be effected by the employment of a large force of armed police. The question is raised on a motion for adjournment in the Irish House of Commons. The majority of the members owe their seats to the intervention of the United Irish League, many of them—perhaps most—have themselves been in similar conflicts with the Court. The result is that Ministers have to choose between a refusal of the police and expulsion from office. Once the Government could decide which decrees of the Judiciary it would enforce and which it would not, the technical immovability of the Judges would be irrelevant, since the real control of justice would be vested, not in the courts but in the executive Ministers in Dublin Castle. The very existence of the limitations and safeguards foreshadowed in the coming Home Rule Bill would naturally tempt the Irish Government to adopt a policy which would reduce to a minimum the effective power of these restraints upon the popular will. The most obvious way of attaining this result would be to keep the police, and with them the judicature, in a position of greater dependence upon the Executive than is consistent with the supremacy of law and the safety of private rights and individual freedom.
We must remember that the men who would have the control of the new Irish Government would be those who have spent the greater part of their lives in violent conflict with the attempts of the Irish Courts to secure respect for the elementary rights of property and of personal freedom in Ireland. Power which has been won by the open violation of every principle of English law, is not likely either to assert the authority it has lived by defying to maintaining the independence of the courts and institutions which have been its deadliest opponents. The corruption of judicial authority and prestige in Ireland will be accomplished by entrenching the Executive behind large and shadowy discretionary powers, and also by manipulating the personnel and jurisdiction of the judges and magistracy throughout the country. The most deplorable movement in modern Nationalism is the attempt to introduce into Irish politics the worst methods of American political corruption. There have recently sprung into prominence in Ireland two societies which are in some respects the most sinister, the most immoral, and the most destructive of those which have corrupted and infected public life in the country. These two—the Ancient Order of Hibernians and the Irish Republican Brotherhood—have in common the secrecy of their operations and the destructiveness of their aims. Their influence is marked not only by despotic and tyrannical government, but, what may be even more mischievous from the point of view of the community, by the deliberate persecution and suppression of all independent thought. Those who have watched the proceedings of the Dublin Corporation have felt the increasing strength of an influence proceeding from Belfast—an influence which is threatening to control the whole course of Nationalist politics in Dublin and the south. The forces of influence, combination, and intimidation which forced the Budget on a reluctant Ireland and routed the Roman Catholic Hierarchy over the Insurance Bill will not be disbanded under Home Rule. On the contrary, they are now being exercised so as to enable the Board of Erin to absorb the older organisations and to place in the hands of its leaders—or rather in those of a single man—the nomination of most, if not all, the representatives of the Nationalist party in Ireland. Mr. Joseph Devlin, who seeks to build this vast power, is a politician of American ideals and sympathies, and under the guidance of his organisation politics in Ireland would be shaped after the model of Tammany Hall rather than that of St. Stephen's. The party which appoints the municipal officers of Dublin in secret caucus, meeting for reasons which are never avowed and after debates which are never published, is only waiting to extend its operations. Even now it is notorious that the magistrates' bench in Ireland is regularly and systematically "packed" whenever licensing or agrarian cases are under discussion. The scandalous inaction of the present Irish Executive in reference to cattle driving and other forms of organised intimidation, the failure to enforce the law and the absolute immunity which the present Chief Secretary has persistently allowed to Nationalist Members of Parliament and paid organisers in incitement to outrage and intimidation, have paralysed the administration of justice and disheartened and disgusted the Judiciary, the Magistrates, and the Police. But under Home Rule the measure of protection which is still afforded by a strong and independent Bench would be removed. The Resident Magistrate would be as much under the heel of the caucus as the local justice; the Recorder's Bench and even the High Court would be constantly subjected to influences of a mischievous and incalculable kind. Whatever may be said against the present occupants of the Judicial Bench, their integrity and fairness have never been seriously questioned. Since the days when the Irish judges issued a writ of habeas corpus for the release of Wolfe Tone, while the Irish Rebellion was actually in progress, they have consistently held an even balance between the two parties. Their learning, their impartiality and their wit have rightly made Irish judges respected throughout the world. Their reputation and their services alike demand that they shall not be set aside wantonly or without consideration. But there is no doubt that Home Rule must mean the end of the Irish Bench as we have seen it in history. The men who have been proud to represent the British Crown would resent with indignation the idea that they should become the tools of the Hibernian caucus. They realise that the judges who oppose the lawless will of popular ministers will have to face obloquy and perhaps direct attack in the Irish Parliament. Even if the concurrence of both Houses in the Irish Parliament were made necessary for the removal of judges, it would not adequately safeguard their independence. The lower House would be composed of the men whom Nationalist constituencies already return to Parliament—excitable, fierce partisans, always ready to subordinate private convictions to the exigencies of party discipline. Nor would there be in Ireland under Home Rule any power or influence, either of property or station, sufficiently strong to furnish a constituency which would return a senate representing interests, opinions, or desires substantially distinct from those of the more powerful House elected upon the wider suffrage.
The situation has been strongly complicated by the promulgation of the Motu Proprio decree, and the refusal of the authorities of the Roman Catholic Church to say definitely whether it applies to Ireland or not. We may assume that, if Archbishop Walsh could have given a categorical denial to the statement that the decree must operate in Ireland under Home Rule, he would have done so. The decree Motu Proprio forbids any Roman Catholic to bring his priest or bishop into court under pain of excommunication. The Roman Catholic Church has made many similar efforts during history to oust the jurisdiction of the ordinary courts, and each attempt has had to be sharply and sternly resisted by the civil authorities of Roman Catholic countries. We need not discuss how much there may be said from a theological standpoint for the decree; we are only concerned to show that it raises pretensions which no State can possibly permit to be recognised. There have been too many attempts, successful and unsuccessful, to oust the jurisdiction of the King's Courts in Ireland, for this new attempt to be viewed with equanimity. The United Irish League has set up courts which try men for imaginary offences committed during the exercise of their ordinary civil rights, and pass illegal sentences and inflict illegal punishments. Under the reign of Liberal Governments the writ of these courts runs where the King's writ cannot run, and the law of the League has been allowed in great measure to supersede the law of the land. We have also an increasing force in Irish Nationalism which seeks to paralyse the government of Ireland by means of the general or sympathetic strike. This organisation seeks to establish courts in Ireland in opposition to the ordinary law courts, and to enforce their decrees by means of illegal intimidation and outrage. The people of Ireland have therefore been familiarised with the idea of courts competing in authority with those of the King's Government. Supposing under Home Rule the Judiciary proved less pliable than was expected or desired, the development of such competing authorities would be facilitated by a complaisant Cabinet in Dublin. But of all attempts to over-ride the authority of law this conspiracy to exempt ecclesiastical persons from its scope is the most insidious and dangerous. The existence of a class of men answerable for their actions, not to any domestic tribunal, but to a foreign ecclesiastical court, cannot now be tolerated by any self-respecting Government. Yet it is not easy to see how an Irish Cabinet could refuse to make, by executive if not by legislative action, what is now the law of the Church eventually the law of Ireland. Against this danger no safeguards can be devised. If the Administration refuses to put the law into effective operation against a certain class of offender or abuses the prerogative of mercy in his favour, there is no power in the constitution to coerce it. A few years ago we saw in Ireland the extraordinary spectacle of persons being prosecuted for cattle-driving and similar offences, while those who openly incited them to crime escaped with impunity. We saw judges from the Bench complaining in vain that the real offenders were not brought before them, and criticising openly the negligence and partiality of the Crown. If the Nationalists, whose influence then paralysed the aims of the Government, ever get supreme control of the Executive, we are certain to see these abuses revived on a still more shocking scale. The operation of the new decree places the Roman Catholic minister or law officer who is called upon to administer justice under the terms of his oath in a position of cruel embarrassment. As a law officer it might be his duty to order the prosecution of some clerical offender; as a Roman Catholic compliance with his duty to the State must entail the awful consequences of excommunication. It needs no elaboration to show that what may be a grave embarrassment under the rule of impartial British Ministers, must under a local Irish Government develop into a danger to the State. A case recently tried at the Waterford Assizes establishes a precedent which may prove most mischievous. Recent illustrations in Ireland of the working of the Temere decree have secured for it a sort of quasi-legality and provided a great argument to those devout Churchmen who, under Home Rule, would naturally desire to carry the process a further step.
We have proceeded on the assumption that the Irish Parliament would—formally, at least—confine itself within the limits prescribed by the law of its creation. But it is necessary at least to contemplate the possibility that it would prove less complaisant. The safeguards and limitations inserted in any Act of the kind must of necessity be couched in general terms. The constitutional history of the United States and other countries is full of cases showing how difficult it is to define in practice where the border line between intra and ultra vires comes. It is the custom of all Governments, if there is any possible room for debate as to their competence to take any particular line of action, to give themselves the fullest benefit of the doubt, and the Irish Government is unlikely to prove any exception to the rule. When the Judicature and all the forces of Executive Government, except the direct command of troops, is in their hands, the laws passed by the Irish Parliament could be put in force in Ireland. The British Government could not intervene except by acts which would amount to open war between the two countries. We must remember that this enforcement of Irish laws by Irish police in spite of the decisions of a "foreign" Government at Westminster is openly advocated and contemplated by the large and active section of the Nationalists who have adopted as their watchword the motto "Ourselves alone" (Sinn Fein). Nothing could be more futile than the idea that the judgments of the Judicial Committee of the Privy Council would ever be accepted as final by the Nationalist majority, or that the royal assent could ever be withheld from an Act constitutionally passed by the Irish Legislature, without precipitating a crisis. The result of applying the veto of the House of Lords in England to the measures of Liberal Ministers was the agitation for removing the veto. The Nationalists took part in that agitation and have learned its lesson. Directly the British Government asserts its technical right of veto, a similar agitation to get rid of all obnoxious restraints would arise in Ireland.
If anything could increase the danger of friction, it would be the scheme favoured by Mr. Erskine Childers and other Liberals of submitting constitutional questions to the decision of the British Privy Council reinforced by Irish judges. Either these judges would concur in verdicts given against the pretensions of the Irish Parliament or they would not. If they did concur, there would be a fierce outcry against the right of judges appointed under the Union Government to nullify Acts of the Irish Legislature. But if they did not concur, the patriotic indignation with which a decision over the heads of the Irish representatives would be received is easy to foresee. It would be a matter of the greatest difficulty to enforce any such decision when the Irish Government, supported by an agitation in the country, refused to be bound by it. The situation thus created has no parallel in the case of the colonies. In Canada or Australia, where the legislative power is divided between federal and provincial Parliaments, a decision that the one legislature is incompetent affirms the competence of the other. Both legislatures have on the spot proper means of enforcing, by judicial and executive authority, decisions which are within their powers. The case of Ireland is fundamentally different. There can be no half-way house between keeping Ireland a partner in all our legislative and judicial activities, or giving to her with a separate Executive uncontrolled and unchecked rights of internal sovereignty.
VII
THE ULSTER QUESTION
BY THE MARQUIS OF LONDONDERRY, K.G.
In the Home Rule controversy to-day Ulster occupies the place of public interest. Lord Rosebery upon one occasion committed himself to the opinion that, before Home Rule was conceded by the Imperial Parliament, England, as the predominant member of the partnership of the three kingdoms, would have to be convinced of its justice.[62] He did not foresee that the party of which he was then the leader would, under duress, abandon even the pretence of consulting the "predominant partner," much less be guided by its wishes. But it has come to pass: and Ulster alone remains the stumbling-block to the successful issue of the plot against the Constitution. By Ulster we do not mean, as Mr. Sinclair points out, the geographical area, but the district which historical events have made so different in every respect from the rest of Ireland.