I would suggest that the constitutional legality of this proposed tribunal be submitted to the judges for their opinion.
It is not for the Government, in matters of this kind, to initiate extra-constitutional proceedings and methods. One can imagine an excited Parliament or inflamed public opinion forcing such proceedings on a Government. In this case there is no such pressure. The first duty of a Government would be to resist being driven outside the lines of the Constitution. In no case, except when public safety is involved, can they be justified in taking the lead. They are the chief guardians of the Constitution. The Constitution is violated or strained in this country when action is taken for which there is no reasonably analogous precedent. Considerations of this kind ought to influence powerfully the present Government.
It is said that the honour of the House of Commons is concerned. This is an empty phrase. The tribunal, whatever its decision, will not prevent the Irish constituencies from returning as representatives the parties implicated. In such an event the honour of the House of Commons could only be vindicated by repeated expulsion, followed by disfranchisement. Does any reasonable person contemplate such a course?
The proceedings of the tribunal cannot be final. In the event of a decision to the effect that the charges are not established, proceedings for libel against the newspaper might be resorted to, the newspaper being placed under a most grossly unjust disadvantage. In the event of a decision to the contrary effect, a criminal prosecution would seem to be imperative. Regarded from the high ground of State policy in Ireland such a prosecution would probably be replete with danger and disaster.
These reflections have been sketched out concisely. If submitted to a statesman, or to anyone of great legal learning and attainments, many more and much graver reflections would probably be suggested.
I do not examine the party aspects of the matter; I only remark that the fate of the Union may be determined by the abnormal proceedings of an abnormal tribunal. Prudent politicians would hesitate to go out of their way to play such high stakes as these.—R. H. S. C.
July 17, 1888.
1890
Æt. 41
Nearly two years had passed since these words were written. During all that time Lord Randolph Churchill kept silence. The Government persevered in their courses. The Bill for the Special Commission was driven swiftly through the House of Commons by guillotine closure. The Judges slowly unravelled the vast tangle of evidence and ethics which had been thrust upon them. Not until the fiftieth sitting of the court was the letter reached which was the reason for the whole proceeding. Then there was an acceleration. In two days a wretched man was proved a forger. In five days he was dead. The only charge that gave birth to the Commission perished by the pistol-shot that destroyed Pigott. The other allegations, melancholy and voluminous as they were, useful as they may have been for political controversy, revealed only the bitterness of the national and racial struggle; and expressed in the language of the victorious party a condemnation of methods of political warfare, more or less lawless, certainly deplorable, but essentially characteristic of revolutionary movements, open or veiled.
The report of the Commission came before the House of Commons on March 3, 1890. In spite of every effort to broaden the issue and to escape from narrow and definite charges of murder, which had been disproved, to general charges of lawlessness and disloyalty which required no proof, the impression produced in the country was adverse to the Government. The party orator dilated on the heinous conduct of the Irish members. The plain man stopped short at Pigott. Ministers had stained the cause of the Union by unconstitutional action and had allowed others to stain it by felony. Lord Randolph’s private letters reveal from time to time the abhorrence with which he regarded the whole transaction. The by-elections attested the opinion of the public. There was too much truth in Parnell’s savage accusation:[69] ‘You wanted to use this question of the forged letters as a political engine. You did not care whether they were forged or not. You saw that it was impossible for us under the circumstances, or for anybody under the circumstances, to prove that they were forgeries. It was a very good question for you to win elections with.... It was also a suitable engine to enable you to obtain an inquiry into a much wider field and very different matters, an inquiry which you never would have got apart from these infamous productions.’