Against Home Rule (1912) Part 10

Four agricultural departments dealt with locusts and cattle plagues, which knew no political boundaries, and which could only be stamped out by the most prompt and determined action. Four systems of law and four organisations for defence secured, as Lord Selborne pointed out in a striking Memorandum (Blue Book Cd. 3564) a minimum of return for a maximum of expense. A native rising in Natal warned South Africans that the mistake of a single Colony might at any moment set the whole of South Africa ablaze with rebellion. In the absence of larger issues local politics in each Colony turned almost exclusively on the racial feud. A comprehensive union alone could bring commercial stability and progressive development, mitigate race hatred, and pave the way to a true South African nationality.

All the weakness in external relations, all the internal friction and impediment to progress, all the bitterness and pettiness of local politics, which marked the absence of union among neighbouring colonies, also characterised the relations of Great Britain and Ireland in the eighteenth century. But there was this difference: the immense disproportion in wealth and power, and the political control exercised by the greater state, caused all the evils of disunion to concentrate with intensified force upon the smaller state. To undo the mischief of eighteenth century disunion required at least a generation. A series of political mistakes and mischances, and a disastrous economic policy, have left the healing task of union incomplete after a century. But renewed disunion to-day would only mean a renewal of old local feuds to the point of civil war, a renewal of old economic friction, in which most of the injury would be suffered by the weaker combatant, the indefinite postponing for Ireland of the prospect, now so hopeful, of national development and social amelioration, a weakening of the whole United Kingdom for diplomacy or for defence. It is a policy which no Dominion in the Empire would dream of adopting--a policy which every Dominion would most certainly resist by force, just as the United States resisted it when attempted, with more than a mere pretext of const.i.tutional justification, by the Southern States.

Now for the "exception which proves the rule": there is one Colonial a.n.a.logy for what would be the position of Ireland under Home Rule, namely, the position of Newfoundland outside the confederation of the other North American Colonies.[57] The a.n.a.logy is only partial, for this reason, that whereas Ireland is almost wholly dependent economically on Great Britain, Newfoundland has little direct trade with Canada, and moreover enjoys a virtual monopoly of one particular commodity, namely codfish, by which it manages to support its small population.

Nevertheless, no one can doubt that with its favoured geographical position, and with its great natural resources, Newfoundland would have been developed in a very different fas.h.i.+on if for the last forty years it had been an integral part of the Dominion. Nor is the loss all on the side of Newfoundland, as the history of even the last few years has shown. In 1902, Newfoundland negotiated a commercial Convention with the United States which, in return for a free entry for Newfoundland fish into the United States, practically gave the Newfoundland market to American manufacturers, and explicitly forbade the granting of any trade preference to the United Kingdom or to Canada. When, fortunately, the American Senate rejected the Convention, Newfoundland embarked on a course of legislative reprisal against American fis.h.i.+ng. But this involved the Imperial Government in a diplomatic conflict which, but for the excellent relations subsisting with the United States, might easily have led to a grave crisis. The inconveniences and dangers which Irish trade policy might lead to under Home Rule can easily be inferred from this single example, all the more if Irish policy should be influenced, as Newfoundland's policy certainly was not, by a bias of hostility to the Empire.

So much for the first confusion, that which would base the case for a _separate government_ in Ireland on the success of _free inst.i.tutions_ in the Colonies, entirely ignoring the whole movement for union, which has made every geographical group of Colonies follow the example of the Mother Country. We must now deal with the second confusion, that which is based on a hazy notion that Home Rule is only a preliminary step to endowing the United Kingdom as a whole with a working federal const.i.tution like that of Canada or Australia. Ireland, in fact, so runs the pleasing delusion, is to be set up as an experimental Quebec, and the other provinces will follow suit shortly. Not all Home Rulers, indeed, are obsessed by this confusion. Mr. Childers, for instance, makes short work of what he calls the "federal chimera," dismissing the idea as "wholly impracticable," and pointing out that Home Rule must be "not merely non-federal, but anti-federal." But the great majority of Liberals to-day are busy deluding themselves or each other, and the Nationalists are, naturally, not unwilling to help them in that task, with the idea of Home Rule for Ireland followed by "Home Rule all round."

The new Home Rule Bill has not yet appeared, but certain main features of it can be taken for granted. It will be a Bill which, save possibly for a pious expression of hope in the preamble, will deal with Ireland only. It will set up in Ireland an Irish legislature and executive responsible for the "peace, order, and good government" of Ireland, subject to certain restrictions and limitations. It will a.s.sign to Ireland the whole of the Irish revenues, though probably retaining the control of customs and excise, and in that case retaining some Irish representatives at Westminster. So far from fixing any contribution to Imperial expenditure from Ireland, it will, apparently, include the provision of an Imperial grant in aid towards Land Purchase and Old Age Pensions. Any such measure is wholly incompatible with even the loosest federal system. A federal scheme postulates the existence over the whole confederation of two concurrent systems of government, each exercising direct control over the citizens within its own sphere, each having its legislative and executive functions, and its sources of revenue, clearly defined. The Home Rule Bill will certainly not set up any such division of government and its functions in Great Britain. Nor will it, in reality, set up any such effective double system of government in Ireland. What it will set up will be a national or Dominion government in Ireland, separate and exclusive, but subject to certain restrictions and interferences which it will be the first business of the Irish representatives, in Dublin or Westminster, to get rid of. Long before Scotland or Wales, let alone England, get any consideration of their demand for Home Rule, if demand there be, the last traces of any quasi-federal element the Bill may contain will have been got rid of.

In a federation every citizen, in whatever state or province he resides, is as fully a citizen of the federation as every other citizen. He not only has the same federal vote, and pays the same federal taxes, but he has the same access to the federal courts, and the same right to the direct protection of the federal executive. In what sense are any of these conditions likely to be true of, let us say, an Irish landlord under this Home Rule Bill? Again, federalism implies that all the subordinate units are in an equal position relatively to the federal authority. Is this Bill likely to be so framed that its provisions can be adapted unchanged to Scotland, Wales, or England? And if they could, what sort of a residuum of a United Kingdom government would be left over? Take finance alone: if every unit under "Home Rule all round" is to receive the whole product of its taxation, what becomes of the revenue on which the general government of the United Kingdom will have to subsist? The fact is that the creation of a federal state, whether by confederation or by devolution of powers, must be, in the main, a simultaneous act. Additional subordinate units may subsequently join the confederation under the conditions of the federal const.i.tution. Backward areas which are unable to provide for an efficient provincial expenditure, over and above their contribution to federal expenditure, may be held back as territories directly controlled by the federal authorities till they are financially and in other respects ripe for the grant of provincial powers. If a federal scheme were really seriously contemplated by the present Government they would have to adopt one of two courses. They would either have to establish it simultaneously for the whole United Kingdom, and in that case limit the powers and functions of the provinces so narrowly as to make it possible for Ireland to raise its provincial revenue without undue difficulty, the rest of Ireland's needs being met by a substantial federal expenditure carried out by federal officials. Or else they might begin by the creation of a federal const.i.tution with considerable provincial powers for England, Scotland, and Wales, keeping back Ireland as a federal territory till its economic and social conditions justified the establishment of provincial inst.i.tutions. The converse policy of treating the case of Ireland as "prior in point of time and urgency,"[58] of giving the poorest and most backward portion of the United Kingdom the whole of its revenue and a practically unfettered control of its territory, is, indeed, "not merely non-federal, but anti-federal."

The truth is that the federal element in this Home Rule Bill, as in that of 1893, will be merely a pretence, designed to keep timid and hesitating Home Rulers in line--a tactical manoeuvre of much the same character as the talk about a reformed Second Chamber which preceded the Parliament Act, and found due burial in the preamble to that Act. In essence the Bill will set up Ireland as an entirely separate state subject to certain restrictions which the Government have no serious intention of enforcing, and the Irish every intention of disregarding, or abolis.h.i.+ng as the outcome of further agitation. For this policy of pretence there is one admirable parallel in our Colonial history--the policy by which "Home Rule" was "given" to the Transvaal after Majuba.

It was the same policy of avoiding expense and trouble, political or military--the policy, in fact, of "cutting the loss"--tricked out with the same humbug about "magnanimity" and "conciliation," about trust in Boer (or Nationalist) moderation when in power, the same contemptuous pa.s.sing over of the loyalists as persons of "too p.r.o.nounced" views, or as "interested contractors and stock-jobbers."[59] It was embodied in a Convention by which the "inhabitants of the Transvaal territory" were "accorded complete self-government, subject to the suzerainty of Her Majesty" under a series of limitations which, if enforced, would have implied a measure of British control in many respects greater than that exercised over a self-governing Colony, and with a number of guarantees to protect the loyalists. The Government was able to "save its face,"

while its hesitating followers were able to quiet their consciences, by the rea.s.suring phrases of the Convention. The Boer Volksraad frankly declared itself still dissatisfied, but ratified the Convention, "maintaining all objections to the Convention ... and for the purpose of showing to everybody that the love of peace and unity inspires it, for the time being, and provisionally submitting the articles of the Convention to a practical test." If any Nationalist Convention in Dublin should accept the new Home Rule Bill, we can take it for granted that it will be in exactly the same spirit, and possibly in almost the same phraseology.[60]

From the first the limitations of the Convention were disregarded. Short of armed intervention there was no machinery for enforcing them, and the Boers knew perfectly well that there was no real desire on the part of an embarra.s.sed Government to raise a hornet's nest by making the attempt. The British resident, with his nominally autocratic powers, was a mere impotent laughing stock. The ruined loyalists left the country, or remained to become the most embittered enemies of the British Government. In three years a new Convention was drafted--an even greater masterpiece of make-believe than the first--which could be expounded to Parliament as a mere modification of certain unworkable provisions, but which the Boers took as a definite surrender of all claims to suzerainty, and as a definite recognition of their position as an "independent sovereign state," bound temporarily by the provisions of a treaty, which could have no permanent force in "fixing the boundary to the march of a nation." So far from being reconciled they were only emboldened to embark on a policy of aggression, which in 1885 involved the British Government in military measures costing nearly as much as would have been required to suppress the whole rising in 1881. For the time being the stagnation and chronic bankruptcy which followed the removal of British rule and the exodus of the loyalists limited Transvaal ambitions. The gold discoveries both increased that ambition by furnis.h.i.+ng it with revenue, and at the same time brought about a close economic intercourse with the neighbouring colonies which, under the political conditions of disunion, was bound to create friction. In the end the policy of make-believe and "cutting the loss" had to be redeemed at the cost of 20,000 lives and of 200,000,000.

Reconciliation, in large measure, has come since. But it has only come because British statesmen showed, firstly, in the war, their inflexible resolution to stamp out the policy of separation, and secondly, after the war, their devotion to the real welfare of South Africa in a policy of economic reconstruction, and in the establishment of those free and equal British inst.i.tutions under which--by the final dying out of a spurious nationalism based on racial prejudice and garbled history--South Africa may become a real, living nation.

The reservations and guarantees which this Home Rule Bill may contain cannot possibly const.i.tute the framework of a federal const.i.tution. All they can guarantee is a period of friction and agitation which will continue till Ireland has secured a position of complete separation from the United Kingdom. At the best the Home Rule experiment would then reduce Ireland to the position of another Newfoundland; at the worst it might repeat all the most disastrous features of the history of "Home Rule" in the Transvaal. At the same time it may be worth inquiring how far there would really be any valid Colonial a.n.a.logy for the introduction of a federal system of "Home Rule all round" if such a scheme had been honestly contemplated. The first thing to keep in mind is that the internal const.i.tution of the Dominions presents a whole gradation of const.i.tutional types. There is the loose federal system of Australia, in which the Commonwealth powers are strictly limited and defined, and all residuary powers left to the States. There is the close confederation of Canada in which all residuary powers are vested in the Dominion. There is the non-federal unitary government of South Africa with a system of provincial local governments with somewhat wide county council powers. There is, lastly, the purely unitary government of the two islands of New Zealand. Each of these types is the outcome of peculiar geographical, economic, and historical conditions. To understand the federal system of Australia it is essential to remember that till comparatively recent times Australia consisted, to all intents, of four or five seaport towns, each with its own tributary agricultural and mining area, strung out, at distances varying from 500 to 1300 miles, along the southern and eastern third of a coast line of nearly 9000 miles looped round an unexplored and reputedly uninhabitable interior. Each of these seaports traded directly with the United Kingdom and Europe in compet.i.tion with the others. With economic motives for union practically non-existent, with external factors awakening a general apprehension rather than confronting Australia with any immediate danger, it was impossible to find the driving power to overcome local jealousies sufficiently to secure more than a minimum of union. The Commonwealth Const.i.tution is a makes.h.i.+ft which, as the internal trade of Australia grows and as railway communications are developed, will inevitably be amended in the direction of increasing the power of the Commonwealth and diminis.h.i.+ng that of the States. In Canada the economic link between Canada proper and the Maritime Provinces was, before Confederation, almost as weak as that of Australia. British Columbia, which it was hoped to include in the Confederation, was then separated by a journey of months from Eastern Canada, and was, indeed, much nearer to Australia or New Zealand. Quebec, with its racial and religious peculiarities, added another problem. That the Confederation was nevertheless such a close and strong one was due both to the menace of American power in the south, and to the terrible example of the weakness of the American const.i.tution as made manifest by the Civil War.

Yet even so, Sir John Macdonald, the father of Confederation, frankly declared the federal const.i.tution a necessary evil--

"As regards the comparative advantages of a Legislative and a Federal Union I have never hesitated to state my own opinions....

I have always contended that if we could agree to have one government and one Parliament ... it would be the best, the cheapest, the most vigorous, the strongest system of government we could adopt."

This also was the view of the framers of the South African Union. The circ.u.mstances of South Africa enabled them to carry it into effect. For all its extent, South Africa is geographically a single, h.o.m.ogeneous country with no marked internal boundaries. It is peopled by two white races everywhere intermixed in varying proportions and nowhere separated into large compact blocks. The immense preponderance and central position of the Rand mining industry makes South Africa practically a single economic system. The very bitterness of the long political and racial struggle which had preceded intensified the argument for really effective union.

If we compare the conditions in the United Kingdom with those of the Dominions it is obvious at once that there is no possible a.n.a.logy with the conditions of Canada or Australia, but a considerable a.n.a.logy with South Africa and New Zealand. The British Isles are but little larger than the New Zealand group, and much more compact and h.o.m.ogeneous. Their close economic intercourse, the presence of two races with a history of strife behind them, but compelled by their inextricable geographical blending to confront the necessity of union, are reproduced in the conditions of South Africa. In so far then as the Colonial a.n.a.logy bears upon the question at all, it cannot be said to be in favour of Federal Home Rule any more than of Separatist Home Rule. The most it can fairly be said to warrant is the establishment of provincial councils with powers akin to those of the South African Councils. For such councils, built up by the federation of adjoining counties and county boroughs, carrying out more effectively some of the existing powers of those bodies, and adding to them such other powers, legislative or administrative, as it may be convenient to bestow on them, a very strong case may be made on the grounds of the congestion of Parliamentary business. But that has nothing to do with Home Rule, either Separatist or Federal.

But if the congestion of Parliamentary business might be appreciably relieved by some such provincial bodies--larger "national" bodies would only duplicate work, not relieve it--the true remedy for the confusion of principles and objectives which, rather than the mere waste of time, is the chief defect of our Parliamentary system, lies in a proper separation of the local affairs of the United Kingdom from the general work of the Empire, in other words, in some form of Imperial federation.

What is needed is not the creation of separate parliaments _within_ the United Kingdom, but the creation of a separate Parliament _for_ the United Kingdom, a Parliament which should deal with the affairs of the United Kingdom considered as one of the Dominions, leaving the general problems of Imperial policy to a common Imperial Parliament or Council equally representative of the citizens of every Dominion. No form of Home Rule can in any sense advance that desirable solution of our Imperial problems. The creation of an additional Dominion in the shape of Ireland would merely add one to the number of units to be considered, and would be contrary to the spirit of the resolution pa.s.sed at the 1897 Conference, that it was desirable "wherever and whenever practicable, to group together under a federal union those Colonies which are geographically united." The problem would be no more affected by the setting up of a federal const.i.tution for the United Kingdom, than it would be if South Africa decided, after all, to give her provinces federal powers, or Australia carried unification by a referendum. The notion that the Dominions could simply come inside the United Kingdom federation, though it sometimes figures in Home Rule speeches, is merely a product of the third form of confusion of ideas previously referred to, and is a sheer absurdity. The terms and conditions of a United Kingdom federation would necessarily differ in almost every respect from those of an Imperial Federation, and a const.i.tution framed for the one object would be unworkable for the other. Nor would it ever be acceptable to the Dominions, which regard themselves as potentially, if not actually, the equals of the United Kingdom as a whole. From their point of view the United Kingdom might almost as well be asked to step inside the Australian Commonwealth on the footing of Tasmania, as that they should be asked to join in, in the capacity of an additional Ireland, Scotland, or Wales, under any scheme of "Home Rule all round."

It should be sufficiently clear from the foregoing a.n.a.lysis that the vague and confused claim that the success of British Colonial policy is an argument for the Home Rule Bill has no shadow of justification. It has been shown, first of all, that the factor of success in our Colonial policy was not the factor of separatism implied in Home Rule, but the factor of responsible government already secured for Ireland by the Union. It has been shown, secondly, that the experience of the Colonies since the establishment of responsible government has in every case forced union upon them, and union in the closest form which the facts of trade and geography permitted of. Colonial experience is thus no argument even for a federal scheme of "Home Rule all round," if such a scheme could possibly result from an Irish Home Rule Bill, which it cannot. The disadvantages and dangers of the contrary policy of disunion have been shown, in their least noxious form in the case of Newfoundland, which has simply remained outside the adjoining Dominion, and in their deadliest form in the case of the Transvaal, where "Home Rule" was given in 1881, as it would be given to Ireland to-day, if the Government succeeded, not from conviction and whole-heartedly, but as a mean-spirited concession, made to save trouble, and under the most disingenuous and least workable provisions. Lastly, it has been made clear that Home Rule cannot possibly a.s.sist, but can only obscure and confuse, the movement for the establishment of a true Imperial Union.

Unionists and Imperialists can choose no better ground for their resistance to Home Rule than the wide and varied field of Colonial experience.

But Colonial experience can give us more than that. It can provide us not only with an immense ma.s.s of arguments and instances against disruption, but with invaluable instances of what can be done to strengthen and build up the Union against all possible future danger of disruptive tendencies. The confederation of Canada was accomplished in the teeth of all the geographical and economic conditions of the time.

Canadian statesmans.h.i.+p thereupon set itself to transform geography, and to divert the course of trade in order to make the Union a reality. The Intercolonial Railway, the Canadian Pacific, the Grand Trunk Pacific, the proposed Hudson Bay Railway, and the Georgian Bay Ca.n.a.l schemes, all these have been deliberate instruments of policy, aiming, first of all, at bridging the wilderness between practically isolated settlements scattered across a continent, and creating a continuous Canada, east and west; and, secondly, at giving that continuous strip depth as well as extension. Hand in hand with the policy of constructing the internal framework of transportation, which is the skeleton of the economic and social life of a nation, went the policy of maintaining a national tariff to clothe that skeleton with the flesh and blood of production and exchange, and, as far as possible, to clothe it evenly. Australia, too, is waking, though somewhat hesitatingly, to the need of transcontinental railways, for the protection of new industries and for the even development and filling up of all her territories. In South Africa the economic process preceded the political. It was the dread of the breakdown of a temporary customs union already in existence that precipitated the discussion of union. And it was the development of the Rand as the great internal market of South Africa, and the compet.i.tive construction of railway lines from the coast, that really decided the question of legislative union against federation. All three instances lead to the same conclusion that union to be really effective and stable needs three things: firstly, a developed system of internal communications reducing all natural barriers to social, political, and commercial intercourse to the very minimum; secondly, a national tariff, protective or otherwise, sufficient at least to encourage the fullest flow of trade along those communications rather than outside of them; thirdly, a deliberate use of the tariff and of the national expenditure to secure, as far as possible, the even development of every portion of the national territory.

In the United Kingdom all these instruments for making the Union real are still unutilised. The system of _laisser faire_ in the matter of internal communications has allowed St. George's Channel still to remain a real barrier. A dozen train-ferries, carrying not only the railway traffic between Great Britain and Ireland, but enabling the true west coast of the United Kingdom to be used for transatlantic traffic, would obliterate that strip of sea which a British minister recently urged as an insuperable objection to a democratic union.[61] To construct them would not be doing as much, relatively, as little Denmark has long since done, by the same means, to unite her sea-divided territory. The creation of a tariff which shall a.s.sist not only manufactures, but agriculture and rural industries, is another essential step. In view of Ireland's undeveloped industrial condition the giving of bounties to the establishment in Ireland of new industries, such as the silk industry, would be a thoroughly justifiable extension of the Unionist policy carried out through the Congested Districts Board and the Department of Agriculture. The diversion to Ireland of a larger part of the general national and Imperial expenditure, whether by the establishment of a naval base, or the giving out of battles.h.i.+p contracts, or even only of contracts for Army uniforms, would also be of appreciable a.s.sistance to Ireland and to the Union. Ireland suffers to-day economically and politically, from the legacy of political separation in the eighteenth century, and of economic disunion in the nineteenth. It is the business of Unionists not only to maintain the legal framework of the Union, but to give it a vitality and fulness of content which it has never possessed.

FOOTNOTES:

[Footnote 54: Speech at Whitechapel, Oct. 10, 1911. There is an almost identical pa.s.sage in Mr. Redmond's article in _McClure's Magazine_ for October, 1910. Sir J. Simon, the Solicitor-General, has since perpetrated the same absurdity (Dewsbury, Feb. 6, 1912).]

[Footnote 55: The usual rhetorical appeal to "What Home Rule has done in South Africa" presents, indeed, a most perfect specimen of the confusion of thought which it is here attempted to a.n.a.lyse. For no sooner had the Transvaal received "Home Rule" (_i.e._ responsible government) than it surrendered the "Home Rule" (_i.e._ separate government) which it had previously enjoyed in order to enter the South African Union. Stripped of mere verbal confusion the argument from the Transvaal a.n.a.logy then runs somewhat as follows: "The Transvaal is now contented because it enjoys free representative inst.i.tutions as an integral portion of a United South Africa; therefore, Ireland cannot be contented until she ceases to be a freely represented integral portion of the United Kingdom!"]

[Footnote 56: Quoted on p. 54.]

[Footnote 57: The position of New Zealand, outside the Australian Commonwealth, is no parallel. New Zealand is almost as far from Australia as Newfoundland is from the British Isles; it differs from Australia in every climatic and physical feature; there is comparatively little trade between them.]

[Footnote 58: Mr. Asquith at St. Andrews, Dec. 7, 1910.]

[Footnote 59: See "The _Times_' History of the South African War," vol.

I. pp. 67 _et seq._]

[Footnote 60: _Cf_. Mr. J. Redmond on the third reading of the Home Rule Bill of 1893. "The word 'provisional,' so to speak, has been stamped in red ink across every page of the Bill. I recognise that the Bill is offered as a compromise and accepted as such.... England has no right to ask from Irish members any guarantee of finality in its acceptance."]

[Footnote 61: Colonel Seely at Newry, December 9, 1911.]

VI

THE CONTROL OF JUDICIARY AND POLICE

BY THE RIGHT HON. J.H. CAMPBELL, K.C., M.P.

The various forecasts, inspired and uninspired, of the new Home Rule Bill which have been given to us, have shed little light upon the future of the Irish Judiciary and Police. The two previous Bills contemplated the handing over of the control of the whole administration of justice in Ireland to the Irish Executive after an interval, in the first case of two years, and in the later Bill, of six years. We may a.s.sume that, whatever period of grace may be allowed to us under the coming measure, it will propose to vest this control in the Irish Government within six years. The interposition of any interval at all will probably be regarded by Ministers as a concession to Unionist fears and as one of the "safeguards" in which the minority will be urged to place its trust.

It must be realised at once that, so far from this interval making the transition from British justice to Irish intrigue easier and more safe, it may have precisely the contrary effect. Once the Irish police are convinced that they are about to be delivered into the hands of the secret organisations who have been the most successful and relentless enemies of public order in Ireland, a paralysis must fall upon the force. During the closing years of the transition, at all events, the Royal Irish Constabulary will be given nominal responsibility for the peace of the country without any opportunity effectually to preserve it.

It would be fairer and better to cast upon puppet nominees of the Ancient Order of Hibernians and the Irish Republican Brotherhood the responsibility and odium of controlling the pa.s.sions that they have helped to raise. The present judges would of course continue to do their duty without fear or favour, but it is impossible that the sentence pa.s.sed upon them and the system of law and government for which they stand could leave their authority unimpaired. We have recently seen in England how easy it may be to stir up popular clamour against judges who administer the law without regard to the prejudices of any political party. Directly the Irish Courts sought to translate the paper safeguards of the Home Rule Bill into practical effect, they would be faced by the violent hostility of an ignorant and excitable a.s.sembly stimulated by an irresponsible and inexperienced executive. The result would be recriminations and friction which must deplorably injure and lower the reputation and prestige of both the Executive and the Judiciary.

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 a.s.sume 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 a.s.sert the authority it has lived by defying to maintaining the independence of the courts and inst.i.tutions 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 munic.i.p.al 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 const.i.tuencies 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 const.i.tuency 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 a.s.sume 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 pa.s.s 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 cla.s.s 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 cla.s.s of offender or abuses the prerogative of mercy in his favour, there is no power in the const.i.tution 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 embarra.s.sment. 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 embarra.s.sment 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 a.s.sizes establishes a precedent which may prove most mischievous. Recent ill.u.s.trations 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 a.s.sumption 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 const.i.tutional 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 pa.s.sed 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 a.s.sent could ever be withheld from an Act const.i.tutionally pa.s.sed 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 a.s.serts 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 const.i.tutional 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.