In round numbers, nearly 24 millions have actually been advanced under the old Acts prior to 1903, and up to March of this year (1911) a further sum of 42¼ millions had actually been advanced under the Wyndham Act of 1903 and the Birrell Act of 1909.[158]
That makes a total of 66½ millions actually advanced to 165,133 tenants up to March of 1911, covering the purchase of nearly 6 million acres of land, or nearly a third of the total agricultural area of Ireland. The tenants of the land are now quasi-freeholders, and will eventually be complete freeholders. In addition, agreements for the purchase of properties by 150,490 tenants, under the Wyndham and Birrell Acts, at a total price of 46½ millions, for 4½ million acres, were pending in March, 1911, though the sale and vesting were not yet completed. The properties represented by these agreements will be duly transferred in the course of the next few years, though the congestion of business is very great.
That will make a total of 113 millions advanced to 315,623 tenants for the purchase of 11 million acres under all Acts up to and including that of 1909. Now, how much more will be required? We have only one recent official estimate—that made by the Land Commission in 1908 for the Treasury Committee which sat to consider the crisis in Land Purchase. It did not pretend to give an accurate forecast, but only to estimate the maximum amount which would be needed, on the assumption that all unsold land would eventually be sold at the average price reached under the Act of 1903.[159] It is certain that the amount so calculated, covering as it does all classes and descriptions of agricultural land, and including land farmed by the landlord himself, as well as short-term pasture tenancies,[160] will considerably exceed the actual requirements. Some of the unsold land, especially of the pasture land, will never need to be sold; nor is the average purchase price likely to remain permanently as high as that obtained under the Act of 1903.
Still, this speculative estimate gives us an outside figure which is useful. The conclusion from it is that 95 millions may be required to finance all future sales initiated under the Act of 1909.
But if we want to know how much cash may be wanted, dating from March, 1911, onwards, to finance Land Purchase, we must add the 46½ millions needed for sales now agreed upon, and waiting to be carried through, but not yet completed. That brings the total to 141½ millions.
For the reasons given above, I think we might very well strike off 20 from the 95 millions of future sales, and so reduce the total to 121½ millions.
Two further questions remain to be considered: (1) Can we assume that in the future purchase will proceed smoothly? (2) Who pays for the machinery of Land Purchase, and what is the security for the money advanced?
1. The Act of 1909 is still young. At the end of March, 1911, applications had been lodged for the direct sale of 5,477 holdings at a price of £1,623,526, representing an average of 20-8 years' purchase, and negotiations were in progress for the purchase by the Congested Districts Board of estates worth another 1½ millions. Total, a little over 3 millions—a substantial amount of business in view of the artificial acceleration caused by events in 1907 and 1908, the subsequent reaction, and the enormous arrears of business still remaining to be cleared up.
We should naturally expect a slight check to purchase under the Act of 1909, since the inducement both to landlord and tenant is less. The tenant would be inclined to hold out for a lower price because his annuity is higher (though signs of this check are not yet apparent), and the landlord is paid in a stock whose market price seems to be slowly but steadily falling. It is now (November, 1911) at 86¼. On the other hand, the wise change in the allocation of the bonus places a much-needed premium on sales of poor land at low prices, and reverses the process by which a wealthy landlord of good land sometimes obtained the largest reward for submission to sale.[161] Moreover, there is constant pressure towards purchase owing to the better financial position of the purchasing tenant over the non-purchasing or judicial tenant, while the fear in the landlord's mind of further periodical reductions in the judicial rents tends to induce him to meet this pressure halfway.
Still, there is a point beyond which such pressure might not be strong enough to carry on voluntary Purchase, especially if the 3 per cent, stock continued to fall. Wide powers of compulsion,[162] covering considerably more than a third of Ireland, and including the poorest areas, where purchase is most needed, already exist under the Act of 1909. Some think that general compulsion will be needed. Other well-informed men count with confidence on completing all the necessary part of the purchase of Irish land in from twelve to fifteen years under the existing system. On the other hand, it is necessary to contemplate the possible need for universal compulsion.
2. Cost of the working of Land Purchase, and security for the money advanced. It is just as well to make these points perfectly clear, in view of the legends which obtain circulation about the "giving" of British money for the purchase of Irish land.
The cost of the Land Purchase machinery falls at present on the taxpayers of the whole United Kingdom, including, of course, those of Ireland. It amounted in 1909-10, as I showed in the last chapter, to £414,500, and for 1911 the estimate is £544,395. This sum includes the administrative cost of the Land Commission and Estates Commissioners, the temporary losses on flotation caused in financing, under the Act of 1909, the balance of agreements made under the Act of 1903, and the bonus to landlords.
The Treasury, in their returns estimating the revenue and expenditure of various parts of the United Kingdom, debit the whole of this sum against Ireland, and, moral responsibility apart, I regard it as necessary that, under Home Rule, Ireland should assume both the cost and the management of Purchase.
Apart from the annual vote I have mentioned, Land Purchase pays for itself. The security for the individual holders of the Guaranteed Land Stock by means of which the purchase money is raised is the Consolidated Fund of the United Kingdom, but the Consolidated Fund has never been called upon for a penny, either for interest or capital, and never will be.
At present the initial security of the Government which controls the Consolidated Fund—in other words, the initial security of the United Kingdom taxpayers—is the Irish rates; for the grants in aid of Irish local taxation still form a guarantee fund chargeable with the unpaid annuities of defaulting tenants, though they have escaped the liability for losses on the notation of stock at a discount. The ultimate security is the purchased land itself; for, in the last resort, a defaulting tenant who, it must be remembered, is a State tenant, can be sold up. But the really important security is the tenant himself. The Irish tenants, treated properly, pay their debts as honestly and punctually as any other class of men in the world. Annuities in arrear are negligible. The last Report of the Land Commission shows that out of two million pounds of annuities due from 165,133 purchasing tenants, and close upon another two millions of interest (in lieu of rent) upon holdings agreed to be purchased by 150,490 tenants—a total of nearly four million pounds—only £28,084 were uncollected on March 31 last. The cases of hopeless default, leading to a sale of the land, were only fifty-four. Not a penny has actually been lost.
The State, then, or, if we choose so to put it, the United Kingdom taxpayers, are safe from loss, and make a good investment. There has never been the faintest symptom of a strike against annuities, and the only cause which could conceivably ever suggest such a strike would be the irritation provoked by a persistent refusal to grant Home Rule. Even that possibility I regard as out of the question, because there is a sanctity attaching to annuities which it would be hard to impair. Still, to speak broadly, it is true that Home Rule will improve a security already good, and that Home Rule, with financial independence, will make it absolutely impregnable.
Let me sum up.
More than half the agricultural land of Ireland is sold to the tenants, or agreed to be sold. Eleven million acres out of 18¾ million acres have changed hands, or will soon change hands; 315,623 out of 554,060 occupiers now pay annuities or interest in lieu of rent, to the amount of nearly 4 million pounds. In regard to value, out of a total value of 208 millions for the whole agricultural land of Ireland, 66½ millions have actually been advanced for purchase, 46½ millions are due to be advanced under signed agreements; and, on the extreme estimate of the Land Commission, based on the supposition that all the remaining land will ultimately be sold, 95 millions more will have to be advanced. Total future liability on the extreme estimate, 141½ millions; or, if we take the more moderate and reasonable figure I suggested, 121½ millions.
Now, two conditions must be laid down—
1. Purchase ought to continue.
2. Cheap Imperial credit is necessary for it.
These conditions ought not to entail, beyond a strictly limited point, the continued control of Purchase by the Imperial Government. That step, as I suggested at p. 221, might involve Imperial control over (1) the Congested Districts Board; (2) the whole work of the Land Commission, outside Purchase, and all Irish land legislation; (3) the Irish police; because the power of distraint for annuities, the last resource of the creditor Government, rests, of course, with the arm of the law.
Any one of these consequences, as I have urged, would be inconsistent with responsible government in Ireland.
What are the objections to Irish control over Purchase, with its corollary, Irish payment of the running costs of Purchase? Two distinct interests have to be considered: (1) That of the British taxpayer; (2) that of the landlord.
1. If we carry out the plan I have advocated, the British taxpayer, as soon as he ceases to contribute to the diminishing subsidy suggested at p. 284 in order to meet the initial deficit in the national Irish balance-sheet, will cease to contribute anything towards the running costs, landlord's bonus, and flotation losses of a Purchase operation for the necessity of which Great Britain, in the past, was in reality responsible. Great Britain is under a moral obligation to continue to support Land Purchase with her national credit, which is indispensable. She is also entitled to demand whatever reasonable conditions she thinks fit, for example, a share in the nomination of Land and Estates Commissioners; while any new legislation will, in the ordinary course, need her assent. The security, as I said above, will be impregnable. The purchasing tenant would become the tenant of the Irish State. The Irish Government, as a whole, instead of the individual annuitants, would, of course, be responsible to the Imperial Government, would collect the annuities itself, and bear any contingent loss by their non-payment. To repudiate a public obligation of that sort would be as ruinous to Ireland as the repudiation of a public debt is to any State in the world.
In point of fact, the Irish Government would find it good policy to popularize Irish Land Stock in Ireland. At present prices the 3 per cent, stock is among the cheapest and safest in the world, and would return to the farmer thrice as much interest as the average bank deposit which he now favours.
Mercifully, there is no exact historical precedent for such a case as Ireland, though, on a small scale, Prince Edward Island is an instructive parallel.[163] But if precedents, in the shape of guaranteed loans to self-governing Colonies, are needed, they exist. The most relevant and recent is the Imperial guaranteed loan of 35 millions made to the Transvaal by Mr. Balfour's Government in 1903 after the great war. Why it should be a heresy to do for Ireland what we did for the Transvaal, I am at a loss to conceive. The loan became, of course, an obligation of the Colony when it received Home Rule, and in 1907 a further guaranteed loan of 5 millions was authorized, of which 4 millions has been issued. Like Irish Land Stock, these loans are secured on the Consolidated Fund; but I do not think a fear is now suggested that the Consolidated Fund is in danger on that account. Prophecies of that sort were common enough in the mouths of those who opposed Transvaal Home Rule, but they did not long survive its enactment.
Another precedent is a guaranteed railway loan to Canada in 1873 of £3,600,000, which is just now becoming redeemable, while the Crown Colony of Mauritius received a guaranteed loan of £600,000 in 1892. The British and Irish taxpayers have also made themselves responsible for £9,424,000 on account of Egypt; £6,023,700 on account of Greece; and £5,000,000 on account of Turkey. The total nominal amount of the guaranteed loans to countries, colonial or foreign, outside the United Kingdom is £63,647,700. The total amount outstanding on March 31, 1911, was £59,474,200, and the Government holds securities only to the value of £4,800,556 against these liabilities, leaving the net liability of the taxpayer at £54,673,644.
The net liability of the taxpayer at the same date on account of Irish Guaranteed Land Stocks of all descriptions was £65,764,054.[164] Ireland has a claim to Imperial credit far superior to any of the Colonies, dependencies, or foreign Powers mentioned, and the credit should not entail control, or the representation of Ireland at Westminster.
Incidentally, it goes without saying that Ireland, in common with the Colonies, should receive the very valuable privilege of having independent loans raised by herself inscribed at the Bank of England, and made trustee securities.
2. It may be argued that the Congested Districts Board and the Land Commission, and through them Irish statesmen, may be subjected to local pressure hostile to the landlord's interests, and that the Irish Government would feel itself more free for social and other reforms if the land question were placed legally outside their purview. My answer is, in the first place, that Great Britain would cease to lend if her conditions were unfulfilled; in the second place, that in this, as in all matters, we are bound to place faith in the self-respect and sense of justice of a free Ireland—in its common prudence, too; for it would be a disaster whose magnitude is universally recognized in Ireland if any course were to be taken which prevented the landlord class from joining in the great work of making a new Ireland. Fair treatment of the landlords by a free Ireland, as distinguished from fair treatment at the hands of an external authority, would do more than anything else to bring about a reconciliation. That is human nature all the world over.
II.
MINOR LOANS TO IRELAND.
It remains only to refer briefly to two other cases where Ireland benefits from Imperial credit.
(1) The Labourers (Ireland) Act of 1906 sanctioned the advance of money through the Land Commission to Rural Councils for building labourers' cottages—a class of loans previously made by the Public Works Commissioners of Ireland. £3,111,816 had been advanced under this head on March 31, 1911, and £1,138,184 had been applied for. The money is raised by guaranteed 2¾ per cent, stock in the same way as the money for Land Purchase.
(2) In addition, there are the loans granted by the Irish Commissioners of Public Works. In their capacity as lenders, which is only one of a multitude of capacities, the Commissioners are really a subordinate branch of the Treasury, and fulfil the same function as the Public Works Loans Commissioners in Great Britain. They lend principally to local authorities for all manner of public works and public health requirements, also to private individuals, mainly for the improvement of land, and, to a small extent, to Arterial Drainage Boards and to railways. They get their money from the National Debt Commissioners, and in 1909-10 issued loans to the amount of £293,233—a figure which shows a considerable reduction on that of the previous two years.[165] The total amount of 35,000 outstanding loans on March 31, 1910, was £9,608,110, of which between two-thirds and three-quarters were due from local authorities. The interest varies, as in Great Britain, from 2¾ to 5 per cent., according to the nature of the security, and in 1909-10 averaged £3 10s. 6d. Most of the loans are secured on local rates, where the interest payable is either 3½ or 3¾ per cent., according to the period of the loan; others on undertakings such as harbours; and others on the land for the improvement of which the money is borrowed.
Here, then, are two small and secondary problems. Under Home Rule Ireland will have no claim to further Imperial credit for loans of either of the above classes. On the other hand, there is no reason why the Treasury, if it pleases, and on its own terms, should not lend as before, though not directly, as it virtually does now, but indirectly, by loan to the Irish Government. The security will be just as good, and probably better. If a negligent Local Government Board under Irish control sanctions reckless loans by local authorities, and a negligent Irish Government advances for such loans money borrowed from Great Britain, the Irish Treasury will suffer. Such eventualities need not seriously be considered. The analogy with the Transvaal and Canada loans, which were mainly for public works, is very close.
CHAPTER XV
THE IRISH CONSTITUTION[166]
I have dealt with the major issues of Home Rule. The exclusion or retention of Irish Members at Westminster, and the powers—above all, the financial powers—of the Irish State, are the two points of cardinal importance. As I have shown, they are inseparably connected, and form, in reality, one great question.
I have endeavoured to prove that from whatever angle we approach that central issue, whether we argue from representation to powers, or from powers to representation, and whether the particular powers we argue from be financial, legislative, or executive; whether we place Irish, British, or Imperial interests in the forefront of our exposition—we are led irresistibly to the colonial solution—that is, to the cessation of Irish representation at Westminster, coupled with a concession to Ireland of the full legislative and executive authority appropriate to that measure of independence, and, above all, with fiscal autonomy.
All the other provisions of the Bill are secondary. They may be divided into two categories, which necessarily overlap:
1. Provisions concerning Ireland only.
2. Provisions defining the Imperial authority over Ireland.
The structure of the Irish Legislature, the position of the Irish Judiciary, the safeguards for minorities, the provision made for existing servants of the State, the statutory arrangements, if any, for the future reorganization of the Irish Police—these and other questions are of great intrinsic importance, and need the most careful discussion; but they are altogether subordinate to those we have already considered. If it be over-sanguine to hope, in Ireland's interest, that they will be discussed in a calm and dispassionate way, we can at least demand that those provisions belonging to the second category, which present no appreciable difficulty, will not excite bitter and barren disputes like those of 1893.
It is not within the scope of this volume to discuss exhaustively the secondary provisions of the Bill, or to suggest the exact statutory form which those provisions, major or minor, should take. In this chapter I shall deal briefly with matters which I have hitherto left aside, and incidentally give more precision to the points upon which I have already suggested a conclusion, in both cases indicating, so far as possible, the most useful precedents and parallels from other Constitutions. The result will be the rough sketch of a Home Rule Bill.
PREAMBLE.
"Whereas it is expedient that without impairing or restricting the supreme authority of Parliament, an Irish Legislature should be created, etc." So ran the opening sentence of the Home Rule Bill of 1893. The words I have italicized are harmless but superfluous. They have never appeared in the Constitutions granted to Colonies, even at periods when the Colonies were most distrusted. Nothing can impair the supreme authority of Parliament.
EXECUTIVE AUTHORITY.
In all parts of the Empire, power emanates from the Sovereign, and is wielded locally in his name.
Section 9 of the British North America Act of 1867 runs as follows: "The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen." Similar words are used in the South Africa Act of 1909, and in the Commonwealth of Australia Constitution Act of 1900. Curiously enough, these were Acts to legalize the Federation, or Union, of separate Colonies, and were passed at a time when the principle embodied needed no affirmation. In earlier Acts for granting Colonial Constitutions, the principle was taken for granted, and implied in numerous provisions, but not stated explicitly. The most recent unitary Constitution, that of the Transvaal (Section 47), was even more reticent, though the principle was none the less clear. The point is unimportant, and the words used in the Home Rule Bills of 1886 and 1893 (Clauses 5 and 7 respectively), modified to meet a change of Sovereign, will serve very well: "The Executive power in Ireland (or the Executive Government of Ireland) shall continue vested in His Majesty...."
Thereon follow the provisions for delegation of the Royal authority, first to the Sovereign's personal Representative in Ireland, and then through him to the members of the Irish Executive. The simpler these provisions are, the better. What we know as responsible government has never been defined in any Act of Parliament. The phrase "responsible government" has only once appeared in any Constitution—namely, in the preamble of the Transvaal Constitution granted in 1906, and even then no attempt was made at definition, though certain sections, like certain sections in the Australian Constitutions of 1855 and in the later Federal Acts, inferentially suggested features of responsible government.
The system is two-sided. Ministers are responsible on the one hand to the King direct, as in Great Britain, or to the King's Representative, as in the Colonies, and, on the other hand, to the elected Legislature. Ireland will resemble a Colony in being a dependent State under a Representative of the King—namely, the Lord-Lieutenant. This personage, corresponding to the Colonial Governor, will also have to act in a dual capacity. On the one hand he will be responsible to the King, or, virtually, to the British Cabinet, and, on the other hand, he will be bound by an unwritten law to nominate for the Government of Ireland persons acceptable to the elected Legislature, and in Irish matters to act by their advice in all normal circumstances.
Let us dispose first of the relation of the Ministers and of other public officials to the Legislature. There will be no question, presumably, of giving statutory power to this relation. It is an unwritten custom—(1) that Ministers must be members of one branch of the Legislature; (2) that they must hold the confidence of the elected branch; (3) that, as a Cabinet, they stand or fall together; and, lastly, (4) that all non-political officials are excluded from the Legislature. The first and the last of these conventions have taken legal form in some isolated cases;[167] the other two appear in no statute that has yet been framed.[168]
Neither have the functions in practice exercised by the Ministry or Cabinet, nor the relations which in practice exist between it and the King's Representative, ever had statutory definition. Whatever form the Home Rule Bill takes, it cannot give legal precision to these things. The King's Representative always nominates an Executive Council—that is, a Cabinet to "advise" him in the Government, and whether, as in the Bill of 1893, that Council is called an Executive Committee of the Privy Council of Ireland by analogy with the Dominion of Canada, where it is the "King's Privy Council for Canada," or whether it is merely an Executive Council is immaterial. That it is, nominally, the constitutional duty of the King's Representative (like that of the King himself) to perform executive acts on the advice of his Ministers is never stated expressly. He is always, and generally in the text of the Constitution, vested with the power of summoning, proroguing, and dissolving the Legislature, and of giving or withholding the Royal Assent to Bills. He also, by unwritten law, wields the prerogative of Pardon, and appoints all public servants; and in all these cases, except in the case of appointing non-political officials, he occasionally has to act on his own personal responsibility.
This personal responsibility cannot be distinguished in practice from his responsibility to the Crown, which appoints and can remove him. Cases have arisen where the Governor of a self-governing Colony has written home for special guidance on some specific point, and where the answer given has been that he must act on his own responsibility, or follow the advice of his Ministers. All Colonial Governors, however, whether or not their powers are defined in the Constitution, are appointed by Commission from the Crown with powers defined in Letters Patent and Instructions as to their exercise. These Letters Patent and Instructions are not of much importance in the case of a self-governing Colony where responsible advice so largely controls the action of the Governor. Sometimes the executive powers given by Instructions to the Governor are indirectly alluded to in the Constitution, as in the South Africa Act of 1909, where, by Clause 9, under the head of "Executive Government," the Governor-General is "to exercise such powers and functions of the King as His Majesty may be pleased to assign to him." In the Australian and Canadian Acts of 1900 and 1867 respectively, the words do not appear. I name this point because in Clause 5 of the Home Rule Bill of 1893, and Clause 7 of the Bill of 1886, a similar course was taken in providing that the Lord-Lieutenant should "exercise any prerogatives, or other executive power of the Queen, the exercise of which may be delegated to him by Her Majesty." The words are not strictly necessary. The Lord-Lieutenant will, of course, have his Letters Patent and Instructions, but the powers of the Crown are theoretically absolute. If the Crown, acting under responsible British advice, should wish to defy the Irish Legislature, it could do so whatever the terms of the Bill.
Naturally, there will be certain Imperial and non-Irish matters in which the Lord-Lieutenant will act primarily under the orders of the British Cabinet, and the Departmental British Minister primarily responsible for Irish-Imperial matters would be the Home Secretary.[169]
The question may be raised, as in 1893 (July 3, Hansard), whether a staff of Imperial officials ought not to be set up to conduct any Imperial business which has to be done in Ireland, on the analogy of the Federal staff in the United States. I hope Mr. Gladstone's answer will still hold good—that no such staff is needed; that the Irish officials will be responsible, and ought, on the Home Rule principle, to be trusted, as they are trusted in the Colonies.
The Royal Assent to Bills is always a matter for express enactment in the Constitution, but here the "instructions" of the Governor, and even his personal "discretion," have generally been alluded to in recent Constitutions, whether conferred by Act or Letters Patent. The typical form of words is that the Governor "shall declare his Assent according to his discretion, but subject to His Majesty's instructions."[170] The Home Rule Bill of 1893 left out reference to "discretion," and, on the other hand, is, I think, the only document of the kind in which the "advice of the Executive Council" has ever been expressly alluded to, although the practice, of course, is that the Assent, normally, is given or withheld on that advice. The Transvaal Constitution of 1906 (Section 39) was unique in prescribing that special instructions must be received by the Governor in the case of each proposed law, before the Assent is given. I hope that will not be made a precedent for Ireland. Such precautions only irritate the law-makers, and serve no useful purpose.
Colonial Governors, besides the power of Assent and Veto, may "reserve" Bills for the Royal pleasure, which is to be signified within two years. Moreover, Bills which have received the Governor's Assent may be disallowed within one or two years.[171] Neither of these provisions appeared in the Home Rule Bills of 1886 and 1893, and neither appear to be strictly necessary, owing to the proximity of Ireland. Whatever is done, we may hope that the practice now established in Canada, where the Federal Government never disallows a provincial law on any other ground than that it is ultra vires, and, a fortiori, the similar practice as between Great Britain and the Dominions, may be imitated in the case of Ireland.
To sum up, the terse and simple words of the Bill of 1886 really enunciate all that is necessary:
"7.—(1) The Executive Government of Ireland shall continue vested in (Her) Majesty, and shall be carried on by the Lord-Lieutenant on behalf of (Her) Majesty with the aid of such officers and such council as to Her Majesty may from time to time seem fit.
"(2) Subject to any instructions which may from time to time be given by (Her) Majesty, the Lord-Lieutenant shall give or withhold the assent of (Her) Majesty to Bills passed by the Irish Legislative Body, and shall exercise the prerogatives of (Her) Majesty in respect of the summoning, proroguing, and dissolving of the Irish Legislative Body, and any prerogatives the exercise of which may be delegated to him by (Her) Majesty."
LORD-LIEUTENANT AND CIVIL LIST.
The restriction as to the religion of the Lord-Lieutenant will, of course, be removed. There is no reason why his term of office should be limited by law. His salary, payable by Ireland, should perhaps be stated in the Act, as in the case of Canada and South Africa, though not in that of Australia. Australia, on the other hand, has a statutory Civil List, and a fixed Civil List was an invariable feature of the old Constitutions given to self-governing Colonies. Canada and South Africa are under no such restrictions, and it would be very inexpedient to impose them upon Ireland.
LEGISLATIVE AUTHORITY.
The Irish Legislature will be given power, according to the historic phrase, "to make laws for the peace, order, and good government of Ireland," subject to restrictions afterwards named. That the laws should be only "in respect of matters exclusively relating to Ireland or some part thereof" goes without saying, and need not be copied from the Bill of 1893 (Clause 2). Nor need the superfluous proviso in the same clause be reproduced, asserting the "supreme power and authority of the Parliament of the United Kingdom." The supreme power becomes none the more supreme for such assertions. Clause 2 of the Bill of 1886 is simple and decisive:
"2. With the exceptions of and subject to the restrictions in this Act mentioned, it shall be lawful for (Her) Majesty (the Queen), by and with the advice of the Irish Legislative Body, to make laws for the peace, order, and good government of Ireland, and by any such law to alter and repeal any law in Ireland."
With the restrictions on the powers of the Legislature I dealt fully enough in Chapter X.,[172] and I need only summarize my conclusions:
1. Reservations of Imperial Authority.—The Irish Legislature should not have power to make laws upon—
- The Crown or a Regency.
- Making of War or Peace.
- Prize and Booty of War.
- Army or Navy.
- Foreign Relations and Treaties (excepting Commercial Treaties).
- Conduct as Neutrals.
- Titles and Dignities.
- Extradition.
- Treason.
- Coinage.
- Naturalization and Alienage.
Reservation of the nine subjects included in the bracket is implied, without enactment, in all colonial Constitutions, but in the Irish Bill it is no doubt necessary that all reserved powers should be formally specified.
All powers not specifically reserved will belong to the Irish Legislature, subject to those restrictions, constitutional or statutory, which in matters like Trade and Navigation, Copyright, Patents, etc., bind the whole Empire.
Section 32 of the Bill of 1893, borrowed from the Colonial Laws Validity Act, will no doubt be applied.
2. Minority Safeguards.—This point, too, I dealt with in Chapter X.[173] Let the Nationalist Members come forward and frankly accept any prohibitory clauses which the fears of the minority may suggest, provided that they do not impair the ordinary legislative power which every efficient Legislature must enjoy. Almost every conceivable safeguard for the protection of religion, denominational education, and civil rights was inserted in the Bill of 1893, including even some of the "slavery" Amendments to the United States Constitution. The list may require revision—(a) in view of the recent establishment of the National University, and the disappearances of all apprehension about the status of Trinity College, Dublin; (b) in regard to an extraordinarily wide Sub-clause (No. 9) about interference with Corporations; (c) in regard to the words, "in accordance with settled principles and precedents," which appeared in Sub-clause (No. 8) (Legislature to make no law "Whereby any person may be deprived of life, liberty, or property without due process of law[174] in accordance with settled principles and precedents," etc.). A debate on this question may be found in Hansard, May 30, 1893. The words italicized were added in Committee on the motion of Mr. Gerald Balfour, though the Attorney-General declared that they gave no additional strength to the phrase "due process of law," while they certainly appear calculated to provoke litigation. Sir Henry James appeared to think that they made the suspension of the Habeas Corpus Act ultra vires. If that is their effect, there is no reason why they should be inserted. Even a Canadian Province, whose powers are more limited than those of the subordinate States in any other Federation, has "exclusive" powers within its own borders over "property and civil rights,"[175] and can, beyond any doubt, suspend the Habeas Corpus Act, if it pleases.
The same superfluous words appeared in Sub-clause (No. 9) about Corporations.
THE IRISH LEGISLATURE.[176]
As I urged in Chapter X., this is a subject in which large powers of constitutional revision—much larger than those contained in either of the Home Rule Bills—should be given to the Irish Legislature itself, corresponding to the powers given by statute to the self-governing Colonies, and to the powers always held by the constituent States of a Federation. In the Bill itself it would be wisest to follow beaten tracks as far as possible, and not to embark on experiments. Present conditions are, unhappily, very unfavourable for the elaboration of any scheme ideally fit for Ireland.
A Bi-Cameral Legislature.—Working on this principle, we must affirm that Ireland's position, without representation in the Imperial Parliament, would certainly make a Second Chamber requisite. Three of the Provinces within the Federation of Canada (Manitoba, British Columbia, and Ontario) prefer to do without Second Chambers—so do most of the Swiss Cantons—but all the Federal Legislatures of the world are bi-cameral, and all the unitary Constitutions of self-governing Colonies have been, or are, bi-cameral.
The Upper Chamber.—One simple course would be to constitute the Upper Chamber of a limited number of Irish Peers, chosen by the whole of their number, as they are chosen at present for representation in the House of Lords. Historical and practical considerations render this course out of the question, though some people would be fairly sanguine about the success of such a body in commanding confidence, on the indispensable condition that all representation at Westminster were to cease. It has been membership, before the Union of an ascendency Parliament, and after the Union of an absentee Parliament, which has kept the bulk of the Irish peerage in violent hostility to the bulk of the Irish people. Those Peers who seek and obtain a career in an Irish popular Legislature—to both branches of which they will, of course, be eligible—will be able to do valuable service to their country. The same applies to all landlords. Now that land reform is converting Ireland itself into a nation of small landholders, who, in most countries, are very Conservative in tendency, the ancient cleavage is likely to disappear. Indeed, an ideal Second Chamber ought perhaps to give special weight to urban and industrial interests, while aiming, not at an obstructive, but at a revising body of steady, moderate, highly-educated business men.
We have to choose one of two alternatives: a nominated or an elective chamber. The choice is difficult, for second chambers all over the world may be said to be on their trial. On the other hand, nothing vital depends upon the choice, for experience proves that countries can flourish equally under every imaginable variety of second chamber, provided that means exist for enabling popular wishes, in the long-run, to prevail. The European and American examples are of little use to us, and the widely varied types within the Empire admit of no sure inferences. Allowance must be made for the effect of the Referendum wherever it exists (as in Australia and Switzerland), as a force tending to weaken both Chambers, but especially the Upper Chamber of a Legislature. It does, indeed, seem to be generally admitted, even by Canadians, that the nominated Senate of the Dominion of Canada, which is added to on strict party principles by successive Governments, is not a success, and it was so regarded by the Australian Colonies when they entered upon Federation, and set up an elective Senate. The South African statesmen, who had to reckon with racial divisions similar to those in Ireland, compromised with a Senate partly nominated, partly elected, but made the whole arrangement revisable in ten years.[177]
It would be desirable, perhaps, on similar grounds of immediate policy, to let those who now represent the minority in Ireland have a deciding voice in the matter. No arrangement made otherwise than by a free Ireland herself can be regarded as final, and I suggest only that a nominated Chamber would be the best expedient at the outset, or in the alternative a partly nominated, partly elected Chamber.
If and in so far as the Upper Chamber is elective, should election be direct or indirect? There is a somewhat attractive Irish precedent for indirect election, namely, the present highly successful Department of Agriculture, whose Council and Boards the County Councils have a share in constituting,[178] and I have seen and admired a most ingenious scheme of Irish manufacture for constructing the whole Irish Legislature and Ministry on this principle. But the objections appear to be considerable. Local bodies in the future should not be mixed up in national politics. That has been their bane in the past. Besides, the principle of indirect election is under a cloud everywhere, most of all in the United States. Australia rejected it in 1900, and the South Africans, while giving it partial recognition in the Senate, made the expedient provisional.
The Lower House.—The Lower House might very well be elected on the same franchise and from the same constituencies as at present, subject to any small redistributional modifications necessitated by changes of population. This is certainly a matter which Ireland should have full power to settle for itself subsequently.
Lord Courtney's proposals for Proportional Representation[179] merit close consideration and possess great attractions, especially in view of their very favourable reception from Nationalists in Ireland. My own feeling is that such novel proposals may overload a Bill which, however simply it be framed, will provoke very long and very warm discussion. If the system were to be regarded by the present minority as a real safeguard for their interests, its establishment, on tactical grounds alone, would be worth any expenditure of time and trouble; but, if they accept the assumption that existing parties in Ireland are going to be stereotyped under Home Rule, and then point to the paucity of Unionists in all parts of Ireland but the north-east of Ulster, they can demonstrate that no practicable enlargement of constituencies could seriously influence the results of an election. My own view, already expressed, is that, provided we give Ireland sufficient freedom, wholly new parties must, within a short time, inevitably be formed in Ireland, and the old barriers of race and religion be broken down, and, therefore, that all expedients devised on the contrary hypothesis will eventually prove to be needless and might even prove unpopular and inconvenient. On the other hand, merits are claimed, with a great show of reason, for Proportional Representation, which are altogether independent of the protection of minorities from oppression. It is claimed that the system brings forward moderate men of all shades of opinion, checks party animus, and steadies the policy of the State. But I think that a free Ireland should be the judge of these merits. At present the bulk of the people do not understand the subject, and need much education before they can appreciate the issue.
Meanwhile, the conventional party system, based on conventional constituencies, will, to say the least, do no more harm to Ireland than to any other State in the Empire. Any minor defects will be infinitesimal beside the vast and beneficial change wrought by responsible government.
DISAGREEMENT BETWEEN THE TWO HOUSES.
It is essential to provide for this, and it would be difficult to better the proposal in the Bill of 1893: that after two years, or an intervening dissolution, the question should be decided by a joint vote in joint session.
MONEY BILLS AND RESOLUTIONS.
To originate in the Lower House on the motion of a Minister.
POLICE.
The Royal Irish Constabulary and Dublin Metropolitan Police should be under Irish control from the first. The former force will undoubtedly have to be reconstituted, and its reconstitution, as an ordinary Civil Police, ought to be undertaken by the Irish Government, but the financial interests of "retrenched" officers and men should be safeguarded in the Bill itself.
JUDGES.
All future appointments should be made by the Irish Government, without the suspensory period of six years named in the Bill of 1893. Present Irish Judges should retain their appointments, as in both previous Bills. The precedent of Canada, where provincial Judges, unlike the State Judges of Australia, are appointed and paid by the Federal Government, is certainly not relevant.
LAW COURTS.
The Federal analogy, except in one particular noticed under the next heading, has no application to Ireland. Only one provision of any importance is needed, namely, that Appeals, in the last resort, should be to the Judicial Committee of the Privy Council instead of to the House of Lords. The Judicial Committee is the final Court of Appeal for the whole Empire, and, strengthened by one or more Irish Judges, should hear Irish Appeals. It is true that the tribunal has been subjected to some criticism lately, especially from Australia. Federal States naturally wish to secure pre-eminent authority for their own Supreme Courts. But the tribunal is, on the whole, popular with the colonial democracies, and the argument from distance and expense does not apply to Ireland. At the end of an interesting discussion at the last Imperial Conference, in which suggestions were put forward for strengthening the Judicial Committee by Colonial Judges, it was agreed that new proposals should be made by the Imperial Government for an Imperial Final Court of Appeal in two divisions, one for the United Kingdom, another for the Colonies. If that step is taken, the position of Ireland will need fresh consideration.[180]
DECISION OF CONSTITUTIONAL QUESTIONS.[181]
The validity of an Irish Act which has received the Royal Assent will, like that of a Colonial Act which has received the Royal Assent, be determined in the ordinary course by the Irish Courts, with an ultimate appeal to the Judicial Committee, which should be strengthened for the occasion by one or more Irish Judges. But both the previous Home Rule Bills made the convenient provision that the Lord-Lieutenant should have the power of referring questions of validity arising on a Bill, before its enactment, to the Judicial Committee of the Privy Council for final decision. There is a useful Canadian precedent for this provision, in the Imperial Act passed in 1891, for giving the Governor-General in Council power, in the widest terms, to refer, inter alia, questions touching provincial legislation to the Supreme Court of Canada, with an appeal from it to the Judicial Committee.[182] To follow this precedent would not involve any Federal complications.
EXCHEQUER JUDGES.
If Ireland controls her own Customs and Excise, no provision for this tribunal appears to be necessary, unless it be that some counterpart is needed for the Colonial Courts of Admiralty.[183] The Bill of 1886 (Clause 20) limited the jurisdiction to revenue questions. The Bill of 1893 (Clause 19) widened it to include "any matter not within the power of the Irish Legislature," or "any matter affected by a law which the Irish Legislature have not power to repeal or alter." The minds of the authors of this clause were evidently affected by the Federal principle which involves two judicial authorities—one for Federal, one for provincial matters. There seems to be no reason for embarking on any such complications in the case of Ireland.
SAFEGUARDS FOR EXISTING PUBLIC SERVANTS IN IRELAND.[184]
Retrenchment, and in some departments drastic retrenchment, will be needed in the Irish public service, just as it was needed in the Transvaal after the grant of Home Rule to that Colony. It is highly desirable that statutory provision should be made safeguarding existing interests. No such provision was made in the case of the Transvaal, and some bad feeling resulted. The past responsibility for excessive Civil expenditure lies, of course, on Great Britain, as it lay in the case of the Transvaal, and on grounds of abstract justice it would have been fair in that case for Great Britain to have assumed a limited part of the expense of compensating retrenched public servants. The practical objections to such a policy are, however, very great. In this, as in all matters, Ireland will gain more by independence than by financial aid, however strongly justified. All payments should be a direct charge upon the Irish Exchequer, not, as in some cases under the Bill of 1893, upon the Imperial Exchequer in the first instance, with provision for repayment from Ireland.
FINANCE.
I summarize the conclusions already indicated in previous chapters:
1. Fiscal independence, with complete control over all Irish taxation and expenditure.
2. Initial deficit to be supplied by a grant-in-aid, diminishing annually and terminable in a short period, say, seven years.
3. Future contribution to Imperial services to be voluntary.
4. Remission to Ireland of her share of the National Debt, and relinquishment by Ireland of her share of the Imperial Miscellaneous Revenue.
5. Imperial credit for Land Purchase to be extended as before, by loans guaranteed on the Consolidated Fund, under any conditions now or hereafter to be made by the Imperial authorities.
Loans to the Public Works Commissioners to be optional.
REPRESENTATION AT WESTMINSTER.
To cease.
CONFERENCE BETWEEN THE IRISH AND IMPERIAL AUTHORITIES.
This is a very important point, because friendly consultation, as at present with the Colonies, will take the place of Irish representation in the Imperial Parliament, and will prove a far more satisfactory means of securing harmony and co-operation. Arrangements similar to those of the Imperial Conference, only more precise and efficient, and of a permanent character, should be made for consultation between the Irish and British authorities on all subjects where the interests of the two countries touch one another. The need for more frequent consultation with the Colonies is being felt with increasing force, and although no permanent consultation body has yet been created, special ad hoc conferences have recently been held—for Defence in 1909, and for Copyright in 1910—in addition to the quadrennial meetings, where a vast amount of varied topics are discussed, and the most valuable decisions arrived at.[185]
What the precise machinery should be in the case of Anglo-Irish relations I do not venture to say. The Ministers of the respective countries will be so easily accessible to one another that there would seem to be no need for the frequent attendance of a powerful personnel at joint meetings. But a Standing Committee, with a small official staff, would be necessary.
CONSTITUTIONAL AMENDMENT.[186]
For amendment of the Home Rule Act itself it is not possible to make any statutory provision. Like all Constitutional Acts, it will only be alterable by another Imperial statute, which, if it were needed, should be promoted by Ireland. But one of the most important clauses in the Act itself will be that defining Ireland's power to amend her own Constitution without coming to Parliament. I venture to repeat the view that this power should be as wide as possible, consistently with the maintenance of the Imperial authority, and subject, of course, to provisions prescribing—(1) a time-limit for the initial arrangements; (2) the method of ascertaining Irish opinion; and (3) the majority in the Legislature, or in the electorate, or in both, necessary to sanction a constitutional change.[187] If a Home Rule Constitution, passed into law in the heat of a party fight at Westminster, proves to be perfect, a miracle will have been performed unparalleled in the history of the Empire. At this moment a Committee of Ireland's ablest men of all parties should be at work upon it, with an instructed public opinion behind them. So only are good Constitutions made, and even the very best need subsequent amendment.
CONCLUSION
Is it altogether idle to hope that some such body will yet come into existence, if not in time to influence the drafting of the Bill, at any rate to bring to bear upon its provisions the sober wisdom, not of one party only in the State, but of all; and so, if it were possible, to give to the charter of Ireland in her "new birth of freedom" the sanction of a united people?
Home Rule will eventually come. Within the Empire, the utmost achieved by the government of white men without their own consent is to weaken their capacity to assume the sacred responsibility of self-government. It is impossible to kill the idea of Home Rule, though it is possible, by retarding its realization, to pervert some of its strength and beauty, and to diminish the vital energy on which its fruition depends. And it is possible in the case of Ireland, up to and in the very hour of her emancipation, after a struggle more bitter and exhausting than any in the Empire, to heap obstacles in the path of the men who have carried her to the goal, and on whom in the first instance must fall the extraordinarily difficult and delicate task of political reconstruction. They will be on their mettle in the eyes of the world to prove that the prophets of evil were wrong, to show sympathy and inspire confidence in the very quarters where they have been most savagely traduced and least trusted, and they will have to exhibit dauntless courage in attacking old abuses and promoting new reforms. They will need their hands strengthened in every possible way.
The help must come—and it cannot come too soon—from the working optimists of Ireland, from the hundreds of men and women, of both parties and creeds, who are labouring outside politics to extirpate that stifling undergrowth of pessimism which runs riot in countries denied the light and air of freedom. All these people agree on the axiom that Ireland has a distinct individual existence, and that her future depends upon herself. No one should dare to stop there. Let him who feels impelled to stop there at any rate act with open eyes. In expecting to realize social reconstruction without political reconstruction—however divergent the aims may now seem to be—he expects to achieve what has never been achieved in any country in the Empire, and to achieve this miracle in the very country which has suffered most from political repression, and possesses the most fantastic system of government to be found in the King's dominions. The thing is impossible, and if at bottom he feels it to be so, and inclines sadly to the view that political servitude is but the least of two evils, I would only venture to suggest this: Is it not a finer course to stake something on a risk run in every white community but Ireland rather than to face the certainty of half achievement? And is it not, after all, a sound risk to trust the very men who now respond to the appeal for self-reliance, mutual tolerance, and united effort in their private affairs, not to renounce these qualities and abuse the rights of citizenship when the public affairs of their country are under their own control?
As for the risk to Great Britain, I have only this last word to say: Let her people, not for the first time, show that they can rise superior to the philosophy, as fallacious in effect as it is base and cowardly in purpose, which sets the safety of a great nation above the happiness and prosperity of a small one. Within the last few weeks the wheel has turned full circle, and the almost inexplicable contradiction which has existed for so long between Unionism and Imperialism has been illuminated with a frank cynicism rare in our public life. It is being said that the freedom given to Canada cannot be given to Ireland, because the separation from the Empire theoretically rendered possible by such a step would be immaterial in the case of Canada, which is distant, but perilous in the case of Ireland, which is near. If this be Imperialism, it should stink in the nostrils of every decent citizen at home and abroad.
It is true, to our shame, that, by little more than an accident, Canada obtained the freedom which gave her people harmony, energy, and wealth in the teeth of this mean and selfish doctrine. But Lord Durham took a higher view. Let me recall the memorable words which he added to his long and brilliant argument for liberty as a source, not only of domestic regeneration, but of affection and loyalty to the Motherland: "But at any rate our first duty is to secure the well-being of our colonial countrymen; and if, in the hidden decrees of that wisdom by which this world is ruled, it is written that these countries are not for ever to remain portions of the Empire, we owe it to our honour to take good care that, when they separate from us, they should not be the only countries on the American continent in which the Anglo-Saxon race shall be found unfit to govern itself."
Lord Durham was doubly right; in his prophecy of the closer union liberty would promote, and in elementary law which he laid down, of moral obligation which, whatever the result, he held superior to dynastic calculations. It is a fact of ominous significance that the intellectual successors of the men who most hotly repudiated both these doctrines in 1838 are being driven by pressure of their Irish views to revive that repudiation in 1911, and to revive it in the midst of the most effusive protestations of the need for still closer union with a Colony which would either have undergone the fate of Ireland or have ceased to be a member of the Empire if their philosophy had triumphed. I do not believe there is any conscious cant in that flagrant contradiction, but I do firmly believe that so long as their error about Ireland poisons in them the springs of Imperial thought, some element of fallacy lies in any Imperial policy they undertake. In common prudence, at any rate, they should avoid telling Canada, while beckoning her nearer to the heart of the Empire, that they only gave her freedom because she was so far.
But I rely still on an awakening, on a fundamental change of spirit. The Empire owes everything to those who have disputed, sometimes at the cost of their lives, illegitimate authority. Some day the politicians who now spend sleepless nights with paste and scissors in ransacking the ancient files of the world's Press for proofs that Mr. Redmond once used words signifying that he aimed at "separation"—whatever that phrase may mean—will regret that they ever demeaned themselves by such petty labour, and will place Mr. Redmond among the number of those who have saved the Empire from the consequences of its own errors.