Chapter II · —The New Constitution (continued 2)

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.

As though, however, the Restraints were not enough to cause first irritation and then agitation, the financial provisions contemplated by the Bill are in themselves certain to generate, not future, but immediate discord.

Of the financial arrangements instituted under the new constitution, my purpose is to say very little. My object is not to show that Mr. Gladstone's financial calculations are wrong, or that they are ruinous to Ireland or unfair to England. All this is for my present purpose immaterial. My aim is to insist that, in their very nature, they are a cause of conflict; and that they bring the interest, and, even more, the sentiment, of Ireland into direct opposition with the power of England.85

All the customs payable at every Irish port are to be regulated, collected, and managed by, and to be paid into, the Exchequer of the United Kingdom. Not a penny of these customs benefits Ireland; they are all—and this is certainly the light in which they will appear to most Irishmen—a contribution to the revenue of the United Kingdom, that is, of England. If every taxable article were smuggled into Ireland, so that not one pound of Irish customs were paid to the English treasury, the Imperial power would lose, but the Irish State would gain. Ireland would be delivered from a tax which will soon be called a tribute. If, moreover, Ireland continues to be treated as financially a part of the United Kingdom, then free smuggling, which is free trade, would make Ireland a free port, where might be landed untaxed the goods required by the whole United Kingdom. It is easy to see how the English revenue would suffer, but it is equally easy to see that Irish commerce might flourish. If I am told that the ruin of the British revenue may be averted by the examination of goods brought from Ireland to Great Britain—this, of course, is so. But then freedom of trade within the United Kingdom is at an end. We are compelled, in substance, to raise an internal line of custom houses; we abolish at one stroke one great benefit of the Treaty of Union.

The mode, again, in which the customs are levied outrages every kind of national sentiment. Coast-guards, custom-house officers, and gaugers are never popular among a population of smugglers; they will not be the more beloved when every custom-house officer or coastguard is the representative of an alien power, and is employed to levy tribute from Ireland.

Another leading feature of the financial arrangements is the charging upon the Irish Consolidated Fund of various sums rightly due and payable to the Exchequer of the United Kingdom.86 They are made a first charge upon the revenue of Ireland. They are to be paid in the last resort upon the order of the Lord Lieutenant, acting as an Imperial officer. The necessity for some arrangement of this kind is clear. Millions have been lent to Ireland, and these millions must be repaid. But if the need for some such arrangement be certain, its desperate impolicy is no less certain. England and Ireland, the English Government and the Irish Government, are brought into direct hostile collision. The rich English Government appears in the light of an imperious creditor the Irish Government stands in the position of a poverty-stricken debtor. Note, and this is the point which should be pressed home, that in all confederations the difficulty of exacting the money needed by the federal government from any state of the confederacy has been found all but insuperable. Study the history of the thirteen American colonies between the time of the acknowledgment of their independence by England and the formation of the United States. This has been termed 'the critical period' of American history. The colonies were united by recollections of common suffering and of common triumph, they were not divided by race or religion; no State aspired to separate nationality, yet they drifted rapidly towards anarchy; they were discontented at home, they were powerless abroad, above all, they nearly made shipwreck on the financial arrangements. Congress was never able, for the satisfaction either of national needs or of national honour, to obtain fair contributions from the different States.87

Already, further, before the Home Rule Bill has passed from the hands of the House of Commons Mr. Gladstone's very moderate demands, as they seem to Englishmen, are held by some Irish Nationalists to be outrageous.88 The difference, moreover, is not a matter of calculation, to be settled by accounts and balances, or disposed of by auditors. No one can read the statements of Nationalists such as Mr. Redmond or Mr. Clancy without seeing that the real difference of view lies very deep. These typical Nationalists do not regard the United Kingdom as a nation. Ireland is the nation. They doubt what is her interest in the British Empire; they believe, and already hint, that the financial arrangements between the two countries cannot be treated as a mere pecuniary transaction. Ireland has been overtaxed and overburdened. She has claims for compensation. All the feelings or convictions which inspired hatred of Irish landlords are already being aroused with regard to the Imperial power. A campaign against tribute may become as popular as a campaign against rent. The two campaigns indeed have a close affinity; a large portion of the tribute is in reality payment in respect of rent, and the instalments which an Irish farmer pays to buy his land will, to him at any rate, appear rent or tribute payable to Great Britain. The rent or tribute will be collected under the new constitution by the Irish Government.89 No Irish Ministry will relish the position of collector. It would have been difficult for a landlord to collect rent after his agent had publicly announced that it was excessive and unjust. Yet a landlord could dismiss his agent; the English Cabinet cannot dismiss the Irish Government. It is certain too that the Irish Ministry will not find the collection of rent easy. Should the Irish Government state that the rent is iniquitously high, and refuse to collect it, what will be the position of the British Ministry? It must either set the constitution aside or undertake for itself the collection of rent in opposition to, or, at any rate, unaided by, the Irish Executive and the Irish Parliament. No more odious task was ever undertaken by a government. Suppose, however, that things do not come to the worst, the financial arrangements of the Bill ensure that Ireland will soon demand modifications of its provisions. Opposition is a probability, discontent is a certainty.

Ireland is provided under the new constitution with the readiest means of nullifying the Restrictions. The Irish Cabinet and its servants can at any moment reduce an unpopular law to a nullity. Even in England a resolution of the House of Commons may be enough to turn a law into a dead letter. The Imperial Cabinet at this moment could go very near making the Vaccination Acts of no effect, and by declining to have troops sent to Hull could, as I have already pointed out, give victory to the Trades Unionists. Nor is it necessary that the Cabinet should decline sending forces to Hull for the support of the law. An intimation that persons accused of intimidation would either not be prosecuted at all, or if prosecuted and convicted, would be pardoned, would be sufficient of itself to make the strike successful. In no country could the Executive do more to render laws ineffectual than in Ireland. The Irish Cabinet might by mere inaction render the collection of rent impossible; they might, as I have already pointed out, give tacit encouragement to smuggling. If the people regarded a coastguard as an enemy, if he and his family were left severely alone, if he were often maltreated and occasionally shot, his position might be a difficult one, even if supported by the whole force of the state. But if smuggling were regarded as no crime, if the smuggler were looked upon as the patriot who deprived an alien power of a revenue to which England had no right, it is clear that nothing but the energetic support of all the central and local authorities in the country could give a revenue officer the remotest chance of victory in his contest with smugglers. But suppose the national government were apathetic, suppose that the Irish Ministry looked with favourable eye on the diminution of English revenue; suppose that no Irish official gave any aid to a custom-house officer; suppose that, if a British coastguardsman were murdered, Irish detectives made no effort to discover the wrong-doer; and that when the culprit was discovered the Irish law officers hesitated to prosecute; suppose that when a prosecution took place the Attorney-General showed that his heart was not in the matter, and that the jury acquitted a ruffian clearly guilty of murder, is it not as clear as day that smuggling would flourish and no customs be collected? In the same way the Irish Ministry might by mere apathy, by the very easy process of doing nothing, nullify the effect of judgments delivered by the Exchequer judges, and the Irish Ministry would show very little ingenuity if they could not without any open breach of the law impede the carrying out of executions against the goods of persons whom popular feeling treated as patriots.

The Irish Executive might, as already pointed out,90 easily raise an Irish army. Drilling countenanced or winked at by the Irish Ministry could never be stopped by the British Government. Prussia at the period of her extreme weakness, and under the jealous eye of Napoleon, sent every Prussian through the ranks. Bulgaria raised an army while pretending to encourage athletic sports. The value of the precedent is not likely to escape an Irish Premier.

The Irish Parliament cannot legally repeal a single provision of the constitution, but an Irish Parliament might render much of the constitution a nullity. The Parliament might pass Acts which trenched upon the Restrictions limiting its authority. Till treated as void such statutes would be the law of the land. Such voidable Acts, and even parliamentary resolutions,91 would go like a watchword through the country and encourage throughout Ireland popular resistance to Imperial law. A profound observer has remarked that people do not reckon highly enough the importance at a revolutionary crisis of any show or appearance of legality.92 Revolution acquires new force when masked under the form of law. This is a point which Englishmen constantly overlook. They know the moral influence of leagues and combinations; they do not reflect that a Parliament or House of Commons in sympathy with resistance to Imperial demands would possess tenfold the moral authority of any National League. Note too that the Irish Ministry and the Irish Parliament would play into one another's hands, and would further be strengthened by their Irish allies at Westminster, as also by the Irish electoral vote in England.

For the true stronghold of the Irish Government lies, under the new constitution, at Westminster.93

There they would command at least eighty votes: the Irish members could still, as now, and far more effectively than now, coerce under ordinary circumstances any Ministry disposed to enforce the rights of the Imperial Government, or, in other words, of England.

Take a concrete case to which I have already referred.94 Irish farmers who have purchased under the Ashbourne Act grow weary of paying instalments which are equivalent to rent. The Irish Cabinet refuses to collect the rent; it urges its absolute inability to pay the sums due to the Imperial Exchequer and asks for remission. Meanwhile the Irish House of Commons passes a resolution supporting the conduct of the Irish Government. The British Ministers are stern, and reject the request of the Irish Cabinet. The Cabinet at Dublin retire from office. No successors can be appointed who command the support of the Irish Parliament. The Lord Lieutenant advises the Government at home that things have come to a deadlock and that a dissolution will change nothing. Thereupon the Irish members at Westminster begin to move; they threaten general hostility to the British Ministry.

They proffer their support to the Opposition. It may of course happen that the British Ministry can, like the Unionist Government of 1886, defy the Opposition and the Irish members combined. If so the English Cabinet can risk a constitutional conflict in Ireland, though it is a conflict likely to end in disturbance or civil war. But judging the future by the past the eighty members will hold the balance of power. If so their course is clear. They expel from office the Ministers who have protected the rights of the Imperial Government. A weak Ministry depending on Irish votes rules, or rather is ruled, at Downing Street. Every one knows how, under the supposed conditions, the affair will end. There will be a transaction of some sort, and we may be certain that such a transaction will be to the advantage of the Irish Government, and will weaken or discredit Imperial or English authority. We come round here to the root of the whole matter. Were the Restrictions on the power of the Irish Parliament real and easily enforceable, were the obligations imposed upon or undertaken by the Irish people obligations of which an English Ministry could at once compel the fulfilment, Restrictions and obligations alike would be rendered futile and unreal by the presence of the Irish members at Westminster. Every Home Rule scheme which can be proposed is impolitic and is as dangerous as Separation; but the most impolitic of all possible forms of Home Rule is the scheme embodied in the Bill of 1893. Its special and irremediable flaw is the retention of the Irish members at Westminster. This governs and vitiates all the leading provisions of the new constitution. Under its influence every conceivable safeguard, the supreme authority of Parliament, the veto, the legal restrictions on the competence of the Irish legislature melt away into nothing.

They are some of them capable of doing harm, they are none of them capable of doing good.

Cast a glance back at the leading features of the new constitution.

The Imperial Parliament remains in form unchanged, and retains the attribute of nominal sovereignty. But in Ireland the Imperial Parliament surrenders all, or nearly all, the characteristics of true and effective power; it retains in fact in Ireland nothing more than the right to effect under the semblance of a legal proceeding a revolution which after all must be carried out by force. For practical purposes it has no more power at Dublin than it has at Melbourne, i.e. it retains at Dublin scarcely any real power whatever.

For the sake of this nominal and shadowy authority the Imperial Parliament is itself transformed into a strange cross between a British Parliament and the Congress of an Anglo-Irish Federation.

The Irish Executive and the Irish Parliament become under the new constitution the true and real Government of Ireland. But the Irish Government and the Irish people are fettered by Restrictions which would not be borne by the Government or the people of a self-governing colony. These Restrictions are ineffective to bind, but they are certain to gall, and if taken together with onerous financial obligations to Great Britain, which whether just or not must have an air of hardness, and with the habitual presence in Ireland of a British army under the direction of the British Executive, lay an ample foundation for the most irritating of conflicts.

The new constitution, lastly, places in the hands of the Irish people ample means for constitutional or extra-constitutional resistance to Imperial, or in fact to English, power, and almost ensures the success of Ireland in any constitutional conflict. The presence of the Irish members at Westminster saves, or proclaims, the nominal sovereignty of the Imperial Parliament; but their presence in truth makes this sovereignty unexercisable, and therefore worthless, and while increasing the apparent power ensures the real weakness of England.