WE return to Mr. Dicey's masterly book, to show how
he deals with the proposal to allow Ireland a Colonial Constitution like the Constitution of Victoria, and finally with the partly
Colonial and partly Federal plan proposed last summer under Mr. Gladstone's Bill.
The Colonial plan is the one which Mr. Dicey rightly prefers to any other form of Home-rule, considering it the least likely to keep us in constant trouble with Ireland, and the most likely to induce the British people and Government to let Ireland alone, except so far as it is absolutely essential for Imperial interests that she should be restrained. In other words, the Colonial form of Home-rule is the form in which Home-rule approaches most nearly to absolute independence. Nevertheless, though Mr. Dicey prefers this to any other form of Home-rule, —assuming, of course, that the idea of any contributions from Ireland to Great Britain for common expenses were absolutely dropped, otherwise, indeed, the analogy to the Colonial inde- pendence of Victoria or New South Wales would fail,—he is very confident that it would not succeed in its object of rendering the relations between Ireland and England smooth and easy. In the first place, if the Colonial precedent were to hold, British troops would at once be withdrawn. Now, if in the case of Ireland this were not done, the Colonial precedent would not be followed, while the mere presence of British troops in Ireland would give rise to all sorts of difficulties between the two Governments and the two peoples. "If any one doubts this," writes Mr. Dicey, "let him read the correspondence between Mr. Molten() and Sir Bartle Frere, and substitute for the Premier of the Cape Colony the name of Mr. Parnell, and for Sir Bartle Frere the name of the Lord-Lieutenant who might be unfortunate enough to hold office in Ireland after Mr.
Parnell became Premier of the Cabinet." The truth is, that the proximity of Ireland to Great Britain, and still more the legacy of the past, which, as a matter of fact, makes Great Britain really responsible for so much that is perverse in the destiny of Ireland, and which renders it impossible for Ireland to regardthe past as wiped out, or to consider the proposed Con- stitution as an absolutely new departure, make the case of Irish Home-rule so wholly different from that of Colonial indepen- dence (least of all, in such a Colony as Victoria), that it is quite impossible to imagine either that Ireland would accept our veto on, her legislation as Victoria accepts it, or that England would look on at or overlook Irish legislation, as England looks on at or over- looks the legislation of Victoria. The two peoples have been and are too closely mixed up in the same affairs, to be separated in this way. It is now far easier for them to be drawn closer, however reluctantly, than to be divided again by a Constitutional gulf. As Mr. Dicey justly says, the Home Government, though it may veto the legislation of a self-governed Colony, cannot effectually interfere with its administration ; and yet by its administration alone Ireland might effectually carry out a policy wholly distinct from that required by its laws :—
"Given courts, an army, and a police controlled by the leaders of the Land League, and it is easy to see how rents might be abolished and landlords driven into exile without the passing by the Irish Parliament of a single Act which a Colonial Secretary could reason- ably veto, or which even an English court could hold void under the- provisions of the Colonial Laws Act. It is indeed probable that wild, legislation at Dublin might provoke armed resistance in Ulster. Bat a movement which, were Ireland an independent nation, might ensure- just government for all classes of Irishmen, would, if Ireland were a colony, only add a new element of confusion to an already intolerable state of affairs. Imagine for a moment what would have been the position of England if Englishmen had been convinced that Riel, though technically a rebel, was in reality a patriot, resisting the intolerable oppression of the Dominion Parliament, and you, may form some slight idea of the feeling of shame and disgrace with which Englishmen would see British soldiers employed Co suppress the revolt of Ulster against a Government which, without English aid, would find it difficult to resist or punish the insurgents. The most painful and least creditable feature in the history of the United . England's Case against Home-rule. By A. V. Veep, B.C.L., Vineriau Peo- fessor of English Law n the University of Oxford. London : J. Hurray. States is the apathy with which for thirty years the Northern States tolerated Southern lawlessness, and even now indirectly support Southern oppression." (p. 211.)
And, further, the attempt to restrict the legislation of Ireland would, in the present condition of Irish sentiment, keep up a continual irritation most fatal to the reconciliation desired :—
"The restrictions on the authority of the Irish Parliament would, one cannot doubt, be, as safeguards for the authority of the Imperial Government, absolutely illusory. But they would be intensely irritating. Irish leaders would wish, and from their own point of view rightly wish, to carry through a revolutionary policy. The Imperial Government would attempt, and from an English point of view rightly attempt, to arrest revolution. Every considerable legis- lative measure would give ground for negotiation and for under- standings—that is, for dissatisfaction and for misunderstanding. There would be disputes about the land laws, disputes about the army, disputes about the police, disputes about the authority of Imperial legislation, disputes about the validity of Irish enact- ments, disputes about appeals to the Privy Council. To say that all these sources of irritation might embitter the relation between England and Victoria, and that, as they do not habitually do so, one may infer that they will not embitter the relation between England and Ireland, is to argue that institutions nominally the same will work in the same way when applied to totally different circumstances. Victoria is prosperous; Ireland is in distress. Victoria takes pride in the Imperial connection ; the difficulty in dealing with Ireland consists in the fact that large bodies of Irishmen detest the British Empire. Victoria has never aspired to be a nation ; the best side of Irish discontent consists in enthusiasm for Irish nationality. Above all this, there has never been any lasting fend between England and her Australian dependencies ; the main ground in favour of a funda- mental change in the constitutional relations of Ireland and England is the necessity of putting an end at almost any cost to traditional hatred and misunderstanding generated by centuries of misgovern- ment and misery. If, as already pointed out, the source of this misery, so far as it can be touched by law at all, is a vicious system of land tenure, it is in vain to imagine that the misfortunes of Ireland can be cured by any mere change of constitutional forms. Grant, however, for the sake of argument, that the passion of nationality is the true ground of the demand for Homerule ; grant, also, in defiance of patent facts, that the autonomy of a dependency satisfies the sensibilities of a nation ; still, it is idle to fancy that a system based, like our scheme of Colonial Government, on friendly
understandings and the habitual practice of compromise, can regulate the relations of two countries which are kept apart mainly because they cannot understand one another, and can neither of them admit the necessity of mutual concessions. Moreover, a scheme of nominal subjection combined with real independence has the one great defect that it does not teach the lessons which men and nations learn by depending on their own unassisted and uncontrolled efforts. No one learns self-control who fancies he is controlled by a master." (p. 212- 214.)
Thus powerfully does Mr. Dicey sketch the inapplicability of the least hopeless of the forms of Home-rule,—that of Colonial independence,—to the existing relations of England and Ireland.
When Mr. Dicey comes to the solution proposed by Mr. Gladstone during last summer, he only echoes, we think, the conviction of the majority of Liberals, as well as of the majority of the people at large, in declaring it a most ingenious com- promise between the Colonial plan and the Federal plan, but one which has so many of the irritating elements of both as to be absolutely out of the question. His argument on the subject of the
alleged supremacy of the British Parliament (when deprived of its Irish Members), and the legal power of that Parliament to overrule Irish legislation, seems to us quite unanswerable. It is certain, as he points out, that whatever legal supremacy there might have been given to the British Parliament without the resummoning of its Irish Members, it was certainly not in- tended that such legal supremacy should ever be used except in case of the Irish Parliament having exceeded the power granted it under the new Constitution. To attempt to override Irish legislation without the Irish Members, would have been simply bad faith, unless it could have been shown that the Irish Parliament had first broken faith with us. But that would in general be the very matter in dispute between us. The Irish Parliament would maintain that it had done no more than the Constitution permitted. If the British Parliament took the other view, it would still be a debateable matter, and the attempt to override what an Irish Legislature had done with- out hearing the apology of the Irish Members, would be held in Ireland the last indignity we could inflict on that country. Very weighty is Mr. Dicey's contention that the reservation to the British Parliament of the legal right given in Mr. Gladstone's scheme to override the Irish Parliament, without resnmmoning the Irish Members, would be not a new security, but a fresh
"No doubt a breach of the Constitution by the Irish Parliament might be remedied by the use of the sovereignty reserved to the British Parliament. But it is difficult even then to see the great advantage of this reservation. In any case in which England
would be morally justified in setting aside the terms of the high Parliamentary contract, she would be equally justified in suspending the Constitution by the use of force. The em- ployment of power becomes the more not the less odious because it is allied, or seems to be allied, with fraud. The miserable tale of the transactions which carried the Treaty of Union teaches at lease one indisputable lesson,—the due observance of legal formalities will not induce a people to pardon what they deem to be acts of tyranny, made all the more hateful by their combination with deceit. For the British Parliament to renounce the exercise whilst retaining the name of sovereignty is the very course by which to ran a great risk of damaging the character without any certainty of increasing the power of Parliament." (p. 251.)
What Mr. Dicey says on the proposed Irish tribute is even more weighty still :—
" If the tribute is exacted, we may be sure that it will have to be exacted in the long.run by British officials supported by a British army. Laws, we are told, which are otherwise just, are hated in Ireland because they bear a foreign aspect, and come before the Irish people in a foreign garb. If this assertion be not true, then the whole case for Home-rule falls to the ground. If this assertion possess even partial truth, then it applies with far greater force to- tribute than to law. It is almost an absurdity to suppose that people who hate good laws because they may be termed English will not detest a heavy tax which not only may be called, but in reality is, a tribute to England. It is well to remember that a ' pub- lican ' was a tax-gatherer, and that Roman publioana were far more hated than Roman Judges or Roman law. If England gives Irelandl semi-independence, and at the same time makes Ireland pay tribute, all the conciliatory effects of Home-rule will be lost. If Home-rule is to have even a bare chance of producing in Ireland the content- ment of Victoria, Ireland, the poorest of all civilised countries, must be freed from Imperial taxation, which would not be totem ed by the richest of our colonies. To this conclusion the advocates and the- opponents of Home-rule may, I think, both come without grave dis- satisfaction. Of all the sacrifices by which Ireland might be bene- fited, that sacrifice which England should make with the least regret is sacrifice of revenue. If, however, it be assumed, as the supporters. of the Government of Ireland Bill must assume, that justice requires the contribution by Ireland of three or four millions annually to Imperial expenditure, then the Gladstonian Constitution, if it provides for the satisfaction of the claims of Great Britain, does so at the cost of keeping alive Irish discontent. Nor is it at all certain that the payment of the tribute could in effect be easily secured. The practical working of the Constitution might well be that Great Britain. were impoverished and Ireland were angered." (pp. 252-254.) Then, what is the security under Mr. Gladstone's Constitution. that those rights of British subjects about which British pride will be most sensitive, will be respected P- " An Irish executive will immediately on coming into existence be called upon to deal with cases which will severely test its sense of justice. Landlords cannot at once be banished like vermin from Ireland; landlords, as long as they exist, must, I presume, have some rights. Is there any security under the Gladstonian Constitution, that the rights—rights, be it remembered, of British subjects, which ought to be neither more nor less sacred than the rights of a British subject in London or Calcutta—will be protected by an executive of Land Leaguers ? There is, I answer, none whatever. To distrust the justice of an Irish Government is not, be it remarked, to show any special distrust of Irish nature. The Irish leaders are of neces- sity revolutionists, and, it must be added, revolutionists of no high character. Revolutionists on accession to power do not lay aside the revolutionary temperament, and this temperament may have every other virtue, but it knows nothing of the virtue of justice. The Gladatonian Constitution withdraws Ireland from the control of the Government of the United Kingdom, which with all its faults must of necessity possess more impartiality than can a Ministry formed out of the leaders of any Irish faction. The Gladatonian Constitution therefore does leave unpopular classes or individuals exposed to considerable risks of injustice at the hands of the Irish Government." (pp. 254-255.) Further, what was under Mr. Gladstone's Bill the security for- putting in force the judgment pronounced by the Privy Council that an Irish law was unconstitutional ?— " A. sues X. in an Irish Court, X. bases his defence on some Act passed by the Irish Parliament. The Privy Council pronounce the Act void, as being opposed to some provision of the Constitution, and give a judgment in favour of A., under which he has a right to recover £10,000 against X. Here it will be said the whole matter is settled. The law was unconstitutional ; the law has been treated as void ; A. has obtained judgment ; A.'s rights are secured. This would be all that was required, but for one consideration. The object of the plaintiff in an action is to obtain not judgment, but pay- ment or execution. What are the means by which judgments of the Privy Council may be put in force where they happen not to be supported by Irish opinion, and are opposed, it may be, to the decisions of the Irish Courts ? The answer is simple : the Conatitation provides no means whatever. The Federal tribunals of America possess in every State officials of their own, and are supported in the main by American opinion. The Americans are, moreover, to use their own expression, a law-abiding people.' Yet, for all this, the judgment of the Supreme Court may be worth little if it trans across State sentiment, and if the President should happen to sympathise with State rights. A citizen of colour was unlawfully imprisoned in Georgia ; he applied for a habeas corpus. The application ultimately came before Chief Justice Marshall, and the writ was granted. The traditional comment of
President Jackson is noteworthy : 'John Marshall has given his judg- ment, let him enforce it if he can.' The Executive would not assist the Court, and the Supreme Court was powerless." (pp. 258-259.)
Indeed, Mr. Dicey seems to us to prove, with a moral power which hardly falls below the convincingness of mathematical demonstration, that the compromise between Federalism and Colonial independence proposed by Mr. Gladstone had but one redeeming feature, and that was the one feature which rendered it unpopular with the Liberal Party,—the restora- tion of unity and strength to the British Parliament by
the elimination of the Irish obstructors. That feature, 4iowever, it had in common with the far less hopeless scheme of Colonial independence, and in common, let us add, with a solution which seems to us,—bad as it is,—greatly superior even to Colonial independence, namely, complete separa- tion. Complete separation would be a frightful calamity. But it would at least administer a tonic to the Irish sense of respon- sibility, and would wean Great Britain effectually from that feeling that she is bound to interfere, which so attenuates the Irish sense of responsibility. Separation seems to us a remedy for our quarrels with Ireland that is certainly worse than the disease, but not nearly so dangerous a remedy, nevertheless, as those half-and-half remedies discussed in this book, of which Colonial independence is only the least hopeless because it most nearly resembles complete separation. We can hardly express too strongly our sense of what the community owes to Mr. Dicey for his most lucid and masterly volume.