England's Case Against Home Rule Part 10

130, 131.)

"I laid down, I say, five essential conditions, from which it appeared to me we could under no circ.u.mstances depart. These were the essential conditions under which in our opinion the granting of a domestic Legislature to Ireland would be justifiable and wise--first, that it must be consistent with Imperial unity; secondly, that it must be founded upon the political equality of the three nations; thirdly, that there must be an equitable distribution of Imperial burdens; fourthly, that there should be safeguards for the minority; and, fifthly, that it should be in the nature of a settlement, and not of a mere provocation to the revival of fresh demands, which, according to the right hon.

gentleman, exceeded all reasonable expectation and calculation." (Speech of Mr. Gladstone, 13th April, 1886, '_The Times_ Parliamentary Debates,'

p. 256.) Let it be observed that when Mr. Gladstone speaks of the unity of the Empire he means the sovereignty of Parliament, for in the same speech from which these extracts are taken he says, "The unity of the Empire rests upon the supremacy of Parliament and on considerations much higher than considerations merely fiscal." ('_The Times_ Parliamentary Debates,' p. 132.)

[32] Dicey, 'Law of the Const.i.tution,' lecture iv. Parliamentary Sovereignty and Federalism.

[33] A singular instance of the attempt to dissolve a country into States deserves notice. In 1852 a const.i.tution was devised for New Zealand, under which the country was to be governed by a central legislature and subordinate provincial governments and councils. This artificial federation was of short duration; the provincial governments were in 1875 abolished by an Act of the General a.s.sembly.--Todd, 'Parliamentary Government,' pp. 320-322.

[34] See Dicey, 'Law of the Const.i.tution,' 2nd ed., pp. 35-79.

[35] _Contemporary Review_, vol. xii., p. 908.

[36] _Contemporary Review_, vol. xli., p. 921.

[37] 'Mr. Gladstone's Irish Const.i.tution,' _Contemporary Review_, May, 1886, p. 616.

[38] 'Arguments for and against Home Rule,' by the Rev. Malcolm MacColl, M.A., p. 71.

[39] 'The Irish Question,' by the Right Hon. W.E. Gladstone, pp. 36, 37.

[40] 'American Home Rule,' by E.L. G.o.dkin, _Nineteenth Century_, June, 1886, pp. 793, 802.

[41] See Todd, 'Parliamentary Government in the British Colonies,' pp.

274-303, and especially p. 281, as to the position of the colonial troops in Victoria.

[42] See Tarring, 'Chapters on the Law relating to the Colonies,' pp.

79-85.

[43] See Dicey, 'Law of the Const.i.tution,' pp. 105, 106.

The somewhat complicated principles which govern what is popularly called the right of veto on Bills pa.s.sed by Colonial Legislatures, are thus stated in the 'Rules and Regulations' published for the use of the Colonial Office, Chapter III., Legislative Councils and a.s.semblies, Rules 48-55:--

"48. In every Colony the Governor has authority either to give or to withhold his a.s.sent to laws pa.s.sed by the other branches or members of the Legislature, and until that a.s.sent is given no such law is valid or binding.

"49. Laws are in some cases pa.s.sed with suspending clauses; that is, although a.s.sented to by the Governor they do not come into operation or take effect in the Colony until they shall have been specially confirmed by Her Majesty, and in other cases Parliament has for the same purpose empowered the Governor to reserve Laws for the Crown's a.s.sent, instead of himself a.s.senting or refusing his a.s.sent to them.

"50. Every Law which has received the Governor's a.s.sent (unless it contains a suspending clause) comes into operation immediately or at the time specified in the Law itself. But the Crown retains power to disallow the Law; and if such power be exercised at any time afterwards, the Law ceases to have operation from the date at which such disallowance is published in the Colony.

"51. In Colonies having Representative a.s.semblies the disallowance of any Law, or the Crown's a.s.sent to a reserved Bill, is signified by Order in Council. The confirmation of an Act pa.s.sed with a suspending clause is not signified by Order in Council unless this mode of confirmation is required by the terms of the suspending clause itself, or by some special provision in the const.i.tution of the Colony.

"52. In Crown Colonies the allowance or disallowance of any Law is generally signified by despatch.

"53. In some cases a period is limited, after the expiration of which Local Enactments, though not actually disallowed, cease to have the authority of Law in the Colony, unless before the lapse of that time Her Majesty's confirmation of them shall have been signified there; but the general rule is otherwise.

"54. In Colonies possessing Representative a.s.semblies, Laws purport to be made by the Queen or by the Governor on Her Majesty's behalf or sometimes by the Governor alone, omitting any express reference to Her Majesty, with the advice and consent of the Council and a.s.sembly. They are almost invariably designated as Acts. In Colonies not having such a.s.semblies, Laws are designated as Ordinances, and purport to be made by the Governor with the advice and consent of the Legislative Council (or in British Guiana of the Court of Policy).

"55. In West Indian Islands or African Settlements which form part of any general Government, every Bill or Draft Ordinance must be submitted to the Governor-in-Chief before it receives the a.s.sent of the Lieutenant-Governor or Administrator. If the Governor-in-Chief shall consider any amendment indispensable, he may either require that amendment to be made before the Law is brought into operation, or he may authorize the officer administering to a.s.sent to the Bill or Draft on the express engagement of the Legislature to give effect to the Governor-in-Chief's recommendation by a supplementary Enactment."

The effect of these Regulations may be best understood by taking the following supposed case as an example of their operation.

The Houses of the Victorian Parliament pa.s.s a Bill legalising the marriage of a widower with his deceased wife's sister.

i. The Governor refuses his a.s.sent. The Bill is lost and never becomes law.

ii. The Governor a.s.sents to the Bill on the 1st of January. It thereupon becomes an Act, and law in Victoria.

iii. The Crown disallows the Act on the 1st of April. The disallowance is published in Victoria on the 1st of May. From the 1st of May the Act ceases to be law in any part of the British Dominions, but marriages made under it between the 1st of January and the 1st of May are valid.

iv. The Crown allows the Bill. It thereupon becomes an Act which continues in force in Victoria until it be repealed either by the British Parliament or by the Victorian Parliament.

v. The Bill contains a clause that it shall not come into force unless and until allowed by the Crown within two years of its pa.s.sing. It is not so allowed, it never comes into force, or in other words never becomes law.

The point to be noted is that the Crown, or in reality the Colonial Office, has and often exercises the power of placing a veto upon any Colonial law whatever.

[44] Compare 'Victorian Parliamentary Paper,' 1883, 2 S., No. 22, and the _Times_ of September 27, October 2, 5, 10, 12, 15 and 18, 1883.

[45] See Todd, 'Parliamentary Government in the Colonies,' p. 283.

[46] Todd, p. 283.

[47] See, e.g., a letter by Mr. Lecky in the _Times_ of January 13, 1886.

[48] See pp. 221, 222, _post._

[49] See a letter in the _Spectator_ of January 2, 1886, on 'Home Rule or Separation,' by Mr. J. Cotter Morison.

[50] See p. 197, _ante._

[51] _The Times_, May 5, 1886.

[52] Under the political arrangements connecting the two countries, it was practically impossible that the two crowns could by legal means be separated without the a.s.sent of the English Parliament. George III. was necessarily a member both of the English and of the Irish Parliaments; and it is inconceivable that as King of Ireland he should have a.s.sented to a bill pa.s.sed by the Irish Houses of Parliament which was strenuously opposed by the English Houses of Parliament. The madness of the King raised a case not provided for by the Const.i.tution, and the accidental difference of opinion between the English and Irish Houses of Parliament, as to the Regency, has been treated as possessing more importance than from a const.i.tutional point of view belonged to it.

[53] See Appendix for the Government of Ireland Bill. It is there printed in extenso. The clauses which mainly concern the points discussed in the following pages are printed in italics. Readers who wish to understand my comments on the Gladstonian Const.i.tution, should study the Bill itself. I am anxious to call attention to its words, because I am quite aware that on more than one point the interpretation put by me upon its provisions will be disputed by supporters of Mr.

Gladstone's policy. My interpretation is, I believe, sound, but it would be unfair not to give my readers the opportunity of judging for themselves as to its soundness.

[54] Criticism of particular provisions was made the easier by the fact that hesitations of statesmans.h.i.+p betrayed themselves throughout the Bill in blunders of draughtsmans.h.i.+p. The very heading of the Bill is a misdescription, and involves confusion of ideas. The expressions "status of the Crown," "Executive Government," "Imperial Parliament," are from a legal point of view open to severe criticism; and the subst.i.tution of the name "Irish legislature" or "Legislature of Ireland" for the plain intelligible term Irish Parliament, involves something like political cowardice. For errors of this kind, though in one sense errors of draughtsmans.h.i.+p, official draughtsmen are, it must in fairness be remembered, no more responsible than is an amanuensis for the erasures and blots which mar a letter written or re-written to suit the contradictory views of a writer who does not quite know his own meaning and is not anxious to put his meaning into plain words. (See for some excellent criticisms on the Government of Ireland Bill two letters in the _St. James's Gazette_ of 20th and 22nd April, 1880 signed II.)

[55] My statement that the Government of Ireland Bill repeals the main provisions of the Act of Union is made, not because I antic.i.p.ate that the Bill if pa.s.sed would lead to a repeal of the Union, but because it is my opinion that the Bill if pa.s.sed would, as a matter of law, repeal the provisions of that Act, under which the United Kingdom is represented in one and the same Parliament to be styled the Parliament of Great Britain and Ireland. The effect of the Bill would be in very general terms that Ireland would be represented in a Parliament which contained no English or Scotch representatives, and Great Britain would be represented in a Parliament which contained no Irish representatives.

Occasionally and for one definite purpose, and no other, namely for the purpose of modifying the terms of the Gladstonian Const.i.tution, a Parliament might be convened which contained representatives from England, Scotland, and Ireland. By what name any one of these a.s.semblies might be called is a matter of indifference; but that either the British Parliament which contained no Irish representatives, or the Irish Parliament which contained no English or Scotch representatives, or the exceptional and only occasionally convoked body whose one function is to modify a single Act of Parliament, could be considered by any lawyer the "one and the same Parliament" in which the United Kingdom is now represented, is in my judgment all but incredible. If, however, the term "repeal" causes offence or misunderstanding, let us subst.i.tute the word "modify," which, however, I believe to be less accurate. The lay reader ought to be reminded that "Statutes may be repealed either by express words contained in later Acts of Parliament, or by implication," and that "a repeal by implication is effected when the provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier enactment that the two cannot stand together" (Wilberforce, 'Statute Law,' p. 310). My contention is that the Government of Ireland Bill would on becoming law be so inconsistent with portions of 39 & 40 Geo. III. cap. 67, as to amount to a repeal thereof. (For a statement of an opposite opinion, see Mr. Gladstone's pamphlet on the Irish Question pp. 38, 39.)

[56] The Government of Ireland Bill, clause 7.

[57] See the Government of Ireland Bill, clauses 1, 9.

[58] See the Government of Ireland Bill, clause 7.

[59] _Ibid_., clause 25.