I. The Irish Executive.

At the head of the Irish Executive will nominally stand the Lord Lieutenant; he will however in reality occupy the position of a colonial Governor, and be, for most purposes, little more than the ornamental figure-head of the Irish Administration. The real executive government of Ireland56 must be a parliamentary Ministry or Cabinet57 chosen in effect, though not in name, by the Irish Parliament, or rather by the Irish Legislative Assembly, or House of Commons, just as the English Cabinet is appointed in effect by the English House of Commons. Allowing then for the occasional intervention of the Lord Lieutenant as the representative of the Imperial Parliament to protect either the interests of the Empire or the special rights of the United Kingdom,58 the Irish Ministry is to occupy in Ireland the position which the New Zealand Ministry occupies in New Zealand, and will for most purposes as truly govern Ireland as the New Zealand Ministry governs New Zealand, or as Mr. Gladstone's Ministry governs England. The Irish Ministry will be the true Government of Ireland.

This is a fact to which the attention of the English public ought to be sedulously directed. The creation of an independent Irish Parliament strikes the imagination; it is seen to be an innovation of primary importance. The creation of an independent Irish Cabinet or Ministry is taken as a matter of course, and neither Unionists nor Gladstonians see its full import. Yet in Ireland, as elsewhere, the character of the Executive is of more practical consequence than the character of the Legislature. A country may dispense, for a long time, with legislation; no country can dispense with good government.

This principle holds good even in an orderly country such as England, where the sphere of the administration is far less extended than it is in most States. We might get on for a good while prosperously enough without a Parliament, or without new laws, but if anything deprived us even for a week of an Executive, or if, for any reason, the whole spirit of the public administration were changed, every Englishman would feel this portentous revolution in every concern of his daily life. The protection of the Government, of the army, of the police, of the law courts, are with us so much matters of course, that we never realise how much the comfort and prosperity of our existence hang upon it, nor do we reflect that the aid we derive from the Courts is in the last instance dependent upon the decisions of the judges being actively supported by the forces at the command of the executive power. Again, we are so used to the preservation on the part of the Executive and the Courts of an attitude of perfect impartiality and to the extension of their aid to all citizens alike, that we can hardly even in imagination conceive what would be the condition of things if the public administration favoured particular classes and looked askance on the rights of one class, whilst it enforced with rigour the rights of another. Yet events which have been passing before our eyes may show any one how absolutely dependent we may be, at any moment, for our enjoyment of life, property, or freedom upon the authority and the equity of the Executive. Consider the strike at Hull. Practically the legal rights and personal freedom of every inhabitant of the city depend upon the action of the Government. It is as plain as day that if the Government had taken actively and unfairly the side of one party or the other to the contest, the party which the Government favoured would at once have won. Suppose, though the supposition is a very improbable one, that the Home Secretary had directed the police to put down every form of picketing and to arrest every one who counselled the free labourers to desert their employment, the strike would come at once to an end. Suppose on the other hand—the supposition is also a wild one—that the Home Secretary had declined to protect the rights of the free labourers, that the troops had been withdrawn, and that the police had been inactive; suppose, in short, that the Government had been careless to maintain order. The Trade Unionists would at once have become supreme, and freedom of contract, as well as liberty of person, would have been at once abolished. Even in England then the power to exercise our rights as citizens has its source in the constant, though unobserved, intervention of the executive power. What is true of England is truer still of countries where the sphere of the administration is more widely extended than with us, and what is true of every civilised country is truest of all of Ireland. Ireland is a country where the sphere of the administration is large, and where it will probably be increased. Ireland is divided by hostile factions not too much prone to respect the law. Even as things stand, the Irish Executive finds it hard enough to hold a perfectly even and level course, and the whole state of the country depends upon the spirit in which the law is enforced. One of the very gravest defects of our present system is that in Ireland a change of government means, to a certain extent, a change in the administration of the law. Yet both Mr. Balfour and Mr. Morley have enforced the law, and have meant, according to their lights, to act towards all citizens with equitable impartiality. And Mr. Balfour, Mr. Morley, or any statesman appointed by the Imperial Parliament, is likely to act with more fairness than at the present moment would any Executive chosen by any Irish Parliament. One thing, at any rate, is certain. An independent Irish Executive will possess immense power. It will be able by mere administrative action or inaction, without passing a single law which infringes any Restriction to be imposed by the Irish Government Act, 1893, to effect a revolution. Let us consider for a moment a few of the things which the Irish Cabinet might do if it chose. It might confine all political, administrative, or judicial appointments to Nationalists, and thus exclude Loyalists from all positions of public trust. It might place the Bench,59 the magistracy, the police wholly in the hands of Catholics; it might, by encouragement f athletic clubs where the Catholic population were trained to the use of arms, combined with the rigorous suppression of every Protestant association suspected, rightly or not, of preparing resistance to the Parliament at Dublin, bring about the arming of Catholic and the disarming of Protestant Ireland, and, at the same time, raise a force as formidable to England as an openly enrolled Irish army. But the mere inaction of the Executive might in many spheres produce greater results than active unfairness. The refusal of the police for the enforcement of evictions would abolish rent throughout the country. And the same result might be attained by a more moderate course. Irish Ministers might in practice draw a distinction between 'good' landlords and 'bad' landlords, and might grant the aid of the police for the collection of reasonable, though refusing it for the collection of excessive rents, and might at last magnanimously recognise the virtues of Mr. Smith-Barry, whilst passing a practical sentence of outlawry on Lord Clanricarde. Is there anything absurd or unreasonable in the supposition that a Ministry of Land Leaguers chosen by a Parliament of Nationalists should attempt to enforce the unwritten law of the Land League? A Gladstonian who answers this question in the affirmative entertains a far lower opinion than can any candid Unionist of Mr. Gladstone's Irish allies. It would be the grossest unfairness to suggest that every man convicted of conspiracy by the Special Commission added to criminality and recklessness a monstrous form of hypocrisy, and that, whilst urging Irish peasants to boycott evictors and land-grabbers, he felt no genuine moral abhorrence of evictions and land-grabbing. But if, as is certainly the case, the founders of the Land League really detested the existing system of land tenure, and considered a landlord who exacted rent a criminal, and a tenant who paid it a caitiff, it is as certain as anything can be that they will be under the greatest temptation, not to say, in their own eyes, under a stringent moral obligation, to strain the power of an Irish Executive for the purpose of abolishing the payment of rent. Nothing, at any rate, will seem to an Irish Ministry more desirable than that within three years60 from the passing of the Bill landlords and tenants should come to an arrangement, and nothing is more likely to produce this result than the withdrawal from the landlords of the aid, if not the protection, of the law. My argument, however, at the present point does not require the assertion or the belief that an Irish Ministry will be guilty of every act of oppression which it can legally commit. All that I insist upon is that an Irish Ministry will exercise immense power, and that without violating a letter of the constitution, and without passing a single act which any Court whatever could treat as void, the Ministry will be able to change the social condition of Ireland. The Irish Cabinet, remember, will not be checked by any Irish House of Commons, for it will represent the majority of that House. It will not need to fear the interposition of the Imperial Ministry or the Imperial Parliament, for if the authorities in England are to supervise and correct the conduct of the Irish Cabinet, Home Rule is at an end. Mr. Asquith has repudiated all idea of creating two Executives in Ireland61 for the ordinary purposes of government, and from his own point of view he is right. The notion of a dual control is preposterous; the attempt to carry it out must involve anarchy or revolution. The Irish Ministry must in ordinary matters be at least as free as the Ministry of a self-governing colony. The independence of the Irish Executive is indeed a totally new phenomenon in Irish history, and is, as I have said, a far more important matter than the independence of the Irish Parliament, but it is an essential feature of Home Rule, and every elector throughout England should try to realise its import.

One check, indeed, is placed upon the power of the Irish Cabinet. The military forces of the Crown, and the Royal Irish Constabulary and Dublin Metropolitan Police (as long as they exist62), are subject to the control of the Imperial or English Ministry.63 The result is that the English Cabinet will have the means of using force in Ireland for the maintenance of order, for the execution of the law, or for the maintenance of the authority of the Imperial Parliament. But this advantage is after all purchased at the price of placing the country under the rule of something very like two Executives. If the policy of the Irish Cabinet, e.g. as to suppressing a riot at Dublin or Belfast, should differ from the policy of the English Cabinet, the ordinary police may be called into action whilst the army or the royal constabulary stand by inactive, or the army may disperse a meeting which the Irish Ministry hold to be a lawful assembly.

II. The Irish Parliament.

The authority of the Irish Parliament, whilst acting within the limits of the constitution, is extremely wide.64

The Parliament appoints the Irish Government of the day; it will determine whether Mr. M'Carthy or Mr. Redmond, Mr. Healy or Mr. Davitt, directs the Irish Administration. In this matter the British Government will have no voice. The English Ministry are under the new constitution expected in many ways to co-operate with the Irish Ministry, yet it is quite conceivable that the Ministers of the Crown at Dublin may be men whose whole ideas of expediency, of policy, of political morality, may be opposed to the ideas of the Ministers of the Crown at Westminster.

The Irish Parliament, again, even if every Restriction on its powers inserted in the Home Rule Bill should pass into law, will be found to have ample scope for legislative action.65

It can repeal66 any Act affecting Ireland which was enacted before the passing of the Home Rule Bill. Thus it can do away with the right to the writ of habeas corpus; it can abolish the whole system of trial by jury; it can by wide rules as to the change of venue expose any inhabitant of Belfast, charged with any offence against the Irish Government, to the certainty of being tried in Dublin or in Cork. If an Irish law cannot touch the law of treason or of treason-felony, the leaders of the Irish Parliament may easily invent new offences not called by these names, and the Parliament may impose severe penalties on any one who attempts by act or by speech to bring the Irish Government into contempt. A new law of sacrilege may be passed which would make criticism of the Irish priesthood, or attacks on the Roman Catholic religion, or the public advocacy of Protestantism, practically impossible. The Irish House of Commons may take the decision of election petitions into its own hands, and members nominated by the priests may determine the proper limits of spiritual influence. Thus the party dominant at Dublin can, if they see fit, abolish all freedom of election; nor is this all that the Irish Parliament can accomplish in the way of ensuring the supremacy of an Irish party. After six years from the passing of the Home Rule Bill—let us say in the year 1900—the Irish Parliament can alter the qualification of the electors and the distribution of the members among the constituencies. Parliament can in fact introduce at once universal suffrage, and do everything which the ingenuity of partisanship can suggest for diminishing the representation of property and of Protestantism. If, further, in any part of Ireland there be reason to fear opposition to the laws of the Irish Parliament, a severer Coercion Act may be passed than any which has as yet found its way on to the pages of the English or the Irish Statute Book. Worse than all this, the Irish Parliament has the right to legislate with regard to transactions which have taken place before the passing of the Home Rule Bill. An Act inflicting penalties on magistrates who have been zealous in the enforcement of the Crimes Act, an Act abolishing the right to recover debts incurred before 1893, an Act for compensation to tenants who had suffered from obedience to the behests of the Land League, are all Acts which, however monstrous, the Irish Parliament is, under the new constitution, competent to pass.

My assertion is, be it noted, not that all or any of such laws would be passed, but that the passing of them would, under the new constitution, be legal. The Irish Parliament could further by its legislation pursue lines of policy opposed to the moral feeling and political judgment of Great Britain, and this too where Irish legislation practically affects Great Britain. State lotteries might be re-established, gambling tables might be re-opened at Dublin. If the imposition of protective duties on imported goods is forbidden, there is nothing apparently to prevent the reintroduction of Protection into Ireland by the payment of bounties; there is certainly nothing to prohibit the repeal or suspension of the Factory Acts, so that English manufacturers might be compelled to compete with Irish rivals who are freed from the limits imposed upon excessive labour by the humanity or the wisdom of England. The power of the Irish Parliament to pass laws which in the eyes of Englishmen are unwise or inequitable, is, it will be urged, an essential part of the policy of Home Rule. I admit that this is so. But this makes it the more necessary that English electors should realise what this essential characteristic of Home Rule means, or may mean. The Nonconformist conscience exposed Irish Home Rulers to painful humiliation and possible ruin by forbidding them to follow the political leader of their choice to whom they had deliberately renewed their allegiance. Is it certain that Englishmen who could not tolerate the official authority of Mr. Parnell will bear the official leadership, say of Mr. Healy, if employed to carry out the economical principles of Mr. Davitt?

The legislative powers, ample as they are, of the Irish Parliament are in some respects restricted, but what the Parliament cannot accomplish by law it could accomplish by resolution. The expressed opinion of a legislature entitled to speak in the name of the people of Ireland must always command attention, and may exert decisive influence. Suppose that the Irish House of Commons asserts in respectful, but firm, language, the right of the Irish people to establish a protective tariff; suppose that when England is engaged in a diplomatic, or an armed, contest with France, the Irish House of Commons resolves that Ireland sympathises with France, that Ireland disapproves of all alliance with Germany, that she has no interest in war, and wishes to stand neutral; or suppose that, taking another line, the Irish Parliament at the approach of hostilities resolves that the people of Ireland assert their inherent right to arm volunteers, or raise an army in their own defence. No English Minister can allege with truth that these resolutions or a score more of the same kind are a breach of the constitution; yet such resolutions will not be without their effect in England; they cannot be without their effect abroad; in many parts of Ireland they will have more than the authority of an Act of Parliament.

Assume, for the purpose of my argument, that the Irish Parliament always acts absolutely within the limits or the letter of the constitution, though to make this assumption is to substitute unreasonable hopes for rational expectations. What Englishmen should note, because they do not yet understand it, is that within the limits of the constitution the Irish Cabinet and the Irish Parliament possess and must possess the most extensive powers, and that these powers may be used in ways which would surprise and shock the British public, and impede and weaken the action of the Imperial, or English, Government.

I. Their Nature.

The limitations on the power of the Irish Legislature are of a twofold character.

The Restrictions contained in clause 3 of the Bill are intended to restrain the Irish Parliament from acting as the representative body of an independent nation. This clause invalidates for example acts with respect to the Crown or the succession to the Crown, with respect to peace or war, with respect to the naval or military forces of the realm, with respect to treaties or other relations with foreign states, and with respect to trade with any place out of Ireland, which apparently includes the imposition of a protective tariff.

The Restrictions67 contained in clause 4 may be roughly divided into three heads; first, prohibitions intended to ensure the maintenance of absolute religious equality68; secondly, prohibitions intended to prevent injustice to individuals, such as deprivation of life, liberty, or property without due process of law, denial of equal protection of the law, the taxing of private property without due compensation, or the unfair treatment of any existing corporation; thirdly, a provision prohibiting any law which deprives any inhabitant of the United Kingdom of equal rights to public sea fisheries.69

On these Restrictions it were easy to write an elaborate treatise. Should our new constitution ever come into force, they will give rise to a whole series of judgments, and to lengthy books explanatory thereof. The language in which the Restrictions are expressed is in many cases exceptionable. No lawyer will venture to predict what for instance may be the interpretation placed by the Courts on such expressions as 'due process of law,' 'just compensation,' and the like, and it is more than doubtful whether the so-called safeguards are so expressed as to carry out the intention of their authors, or, even in words, adequately to protect either the authority of the Imperial Parliament or the rights of individuals. But it is not my purpose to criticise the Restrictions, or the Bill itself, in detail. The drafting of the Government of Ireland Bill needs much amendment, but at the present juncture it is waste of time to criticise defects removable by better draftmanship or by slight changes in the substance of the measure. My object is to dwell on such points relating to the Restrictions as show their bearing on the character of the new constitution.70

First. The Restrictions are one and all of them limits upon the powers of the Irish Parliament; they are none of them limits upon the powers of the Irish Executive. The new constitution does not contain—from its nature it hardly could contain—a single safeguard against abuse of power by the Irish Ministry or its servants. Yet in all countries there is far more reason to dread executive than parliamentary oppression, and this is emphatically true of Ireland.

Secondly. The Restrictions contain no prohibition against the passing of an Act of Indemnity.

Yet of all the laws which a Legislature can pass an Act of Indemnity is the most likely to produce injustice. It is on the face of it the legislation of illegality; the hope of it encourages acts of vigour, but it also encourages violations of law and of humanity. The tale of Flogging Fitzgerald in Ireland, or the history of Governor Eyre in Jamaica, is sufficient to remind us of the deeds of lawlessness and cruelty which in a period of civil conflict may be inspired by recklessness or panic, and may be pardoned by the retrospective sympathy or partisanship of a terror-stricken or vindictive Legislature. Circumstances no doubt may arise in Ireland, as in other countries, under which the maintenance of order or the protection of life may excuse or require deviation from the strict rules of legality. But the question, whether these circumstances have arisen, will always be decided far more justly by the Parliament at Westminster than it can be decided by the Parliament at Dublin. Can any one really maintain that a Parliament in which Mr. Healy, or, for that matter, Col. Saunderson, might be leader, would be as fair a tribunal as a Parliament under the guidance of Mr. Gladstone or Lord Salisbury for determining whether an officer who, acting under the direction of the Irish Government and with a view to maintain order at Belfast or at Dublin, should have put an agitator or conspirator to death without due trial, had or had not done his duty.

Thirdly. There is among the Restrictions no prohibition against the passing of an ex post facto law. Yet an ex post facto law is the instrument which a legislature is most apt to use for punishing the unpopular use of legal rights. There is not a landlord, there is not a magistrate, there is not a constable in Ireland, who may not tremble in fear of ex post facto legislation. There is no reason, as far as the Home Rule Bill goes, why the gaoler who kept Mr. William O'Brien in prison or the warders who attempted to pull off his breeches, should not be rendered legally liable to punishment for their offences against the unwritten law of Irish sedition. No such monstrosity of legal inequity will, it may be said, be produced. I admit this. But the very object of prohibitions is the prevention of outrageous injustice. The wise founders of the United States prohibited both to Congress and to every State legislature the passing of ex post facto legislation. If any man hint that it be an insult to Ireland to anticipate the possible injustice of an Irish Parliament, my reply is simple. No Irishman need resent as an insult prohibitions which were not felt to be insulting either by the citizens of America or the citizens of Massachusetts.

Fourthly. The Restrictions on the powers of the Irish Parliament do not contain any safeguard against legislation which sets aside contracts.

This is remarkable, not to say ominous. The Gladstonian constitution has been drawn up by legislators who profess to profit by the experience of America. Under the Constitution of the United States71 no State can pass any law 'impairing the obligation of a contract.' This provision has kept alive throughout the Union the belief in the sacredness of legal promises. It embodies a principle which lies at the bottom of all progressive legislation. It gives the best guarantee which a constitution can give against the most insidious form of legislative unfairness; it embodies a doctrine which all legislatures are likely to neglect and which an Irish Parliament is more likely to neglect than any other legislature, for in Ireland there exist contracts which do not command popular approval, and the Imperial legislation of twenty years and more has taught the Irish people that agreements which do not command popular approval may, without breach of good faith, be set aside by legislative enactment. We all know further that reforms, or innovations, are desired by thousands of Irishmen which cannot be carried into effect unless the obligation of contracts be impaired. Why, then, have statesmen who borrow freely from the Constitution of the United States omitted the most salutary of its provisions from our new constitution?

The official reply is at any rate singular; it is apparently72 that the section of the United States Constitution which invalidates any law impairing the obligation of a contract has given much occupation to the Courts of America. This answer is on the face of it futile; it urges the proved utility of a law as a reason for its not being enacted; as well suggest that because the criminal courts are mainly occupied with the trial of thieves there ought to be no law against petty larceny, or that because the labours of the Divorce Court increase year by year, the law ought not to permit divorce. The absurdity of the official reply suggests the existence of some reason which the defenders of this strange omission are unwilling clearly to allege. The true reason why the founders of the new constitution have omitted in this instance to copy a polity which they profess to admire is not hard to discover. An enactment which enjoined an Irish Parliament to respect the sanctity of a contract would be fatal to any remodelling of the Irish land law which tended towards the spoliation of landowners. Yet this very fact makes the matter all the more serious. That British statesmen should under these circumstances deliberately decline to insert an injunction to respect the sanctity of plighted good faith is much more than an omission. It amounts to the suggestion, almost to the approval, of legislative robbery; it is a proclamation that as against landlords, as against creditors, as against any unpopular class, the Imperial Parliament sanctions the violation of good faith. To the Irish Parliament the authors of the new constitution in effect say: 'You may raise no soldiers, you may not yourselves summon volunteers for the defence of your country, you shall not impose customs on foreign goods, and are therefore forbidden to follow a policy of protection approved of by every civilised State except England; you shall neither establish nor endow a church, you shall not by providing salaries for your priesthood at once lighten the burdens of the flock, and improve the position of the pastor; these things, not to speak of many others, you are forbidden to do, though there are many wise statesmen who deem that the courses of action from which you are debarred would conduce to the dignity and the prosperity of Ireland; but there is one thing which you may do, you may sanction breach of faith, you may encourage dishonesty, you may enjoin fraud, you may continue to teach the worst lesson which the vacillation of English government has as yet taught the Irish people, you may drive home the conviction that no man need keep a covenant when the keeping thereof is to his own damage.' This is the message of political morality which the last true Parliament of the United Kingdom hands over to the first new Parliament of Ireland.

II. Their Enforcement.

The nature of the Restrictions imposed upon the Parliament, and indirectly upon the Government of Ireland, is of far less importance than are the means provided for their enforcement. A law which is not enforceable is a nullity; it has in strictness no existence.

The methods provided by the Home Rule Bill for keeping the Irish Parliament within its proper sphere of legislative activity are two in number—the veto of the Lord Lieutenant, and the action of the Courts.

The Veto. This is little more than an empty sham, for it must in general be exercised on the advice of the Irish Cabinet; in other words it will never be exercised at all.73 Were the matter not so serious there would be something highly amusing in the conduct of constitution-makers who, intending to provide against unconstitutional legislation on the part of the Irish Parliament, provide that the Irish Cabinet, who are practically appointed by the Irish Parliament, and who direct its legislation, shall have power to veto Bills passed by the Irish Parliament presumably on the advice of the Irish Cabinet.

The English Ministry no doubt may, if they see fit, instruct the Lord Lieutenant to veto a given Bill. So also the Imperial Parliament has authority to repeal or override any Act, constitutional or unconstitutional, passed by the Irish Parliament. Each power stands on the same footing, neither is meant for ordinary use; either is a means of legal revolution. The veto of the Crown means little in New Zealand; it will at best mean no more in Ireland; but in truth it will mean a good deal less. New Zealand sends no member to Westminster to stay the hand of the Imperial Government whenever it attempts by way of veto or otherwise to put in force the reserved powers of the Imperial Parliament.74

The Privy Council and the Courts. The English Privy Council75 may nullify the effect of Irish legislation in two ways.

It may as an administrative body give a decision that an Act is void.76 This power can by exercised only upon the application of the Lord Lieutenant or a Secretary of State, and it is a power which we may expect will be but rarely employed, for its use would at once give rise to a direct conflict between the Irish Parliament and the English Privy Council. Let it be noted in passing that this provision for the decision of constitutional questions is foreign to the habits and traditions of English Courts; no judge throughout the United Kingdom ever pronounces a speculative opinion upon the extent, operation, or validity of an Act of Parliament. It is the inveterate habit of our judges to deal with particular cases as they come before them, and with particular cases alone. They will find themselves greatly perplexed when they come to pronounce judgment upon abstract questions of law. This is not all. The proposed arrangement is as foreign to the spirit of American Federalism as it is to the spirit of English law. The Supreme Court of the United States never in strictness pronounces an Act either of Congress or of a State Legislature void. What the Court does is to treat it as void in the decision of a particular case. Tocqueville and other critics have directed special attention to the care with which the Federal tribunals, by dealing only with given cases as they arise, avoid as far as possible coming into conflict with any State. They determine the rights of individuals; they do not determine directly what may be the legislative competence of the State, or for that matter of the Federal, Legislature.77 The extraordinary power given to the Privy Council violates a fundamental principle of federalism, which by the way is violated in other parts of the Home Rule Bill. It brings, or tends to bring, the central power, represented in this case by the Privy Council, into direct conflict with one of the States of the Federation.78

The English Privy Council, or, in strictness, the Judicial Committee of the Privy Council, is under the new constitution constituted a Final Court of Appeal from every Court in Ireland.79

The Privy Council also is the Court of Appeal from a new kind of Imperial, or as one may say 'Federal,' judiciary, specially formed for the determination of matters having relation to the competence of the Irish Parliament.

This Imperial or Federal judiciary consists of the two Exchequer Judges of the Supreme Court in Ireland; they are appointed under the Great Seal of the United Kingdom, and therefore by the English Ministry. Their salaries are charged on the Consolidated Fund of the United Kingdom, and they are removable only on an address to the Houses of the Imperial Parliament. They constitute therefore an Imperial not an Irish Court. Before this Court may be brought on the application of any party thereto any legal proceedings in Ireland which inter alia 'touch any matter not within the power of the Irish Legislature, or touch any matter affected by a law which the Irish Legislature has not power to repeal or alter.'80 With the details of these arrangements I need not trouble my readers; the point to notice is that, whenever in any proceeding in Ireland the validity or constitutionality of an Irish Act can come into question, the matter may, at the wish of any party concerned, and in many cases apparently must be, brought before an Imperial or in effect British Court—the Exchequer Judges—and be determined by them subject to an appeal to another Imperial or British Court, viz. the Privy Council. Note further that to the Exchequer Judges are given special powers for the enforcement of any judgment of their Court. If the Sheriff does not give effect to their judgment, they may appoint any other officer with the full rights of a Sheriff to enforce it.81

Here then we have the machinery of the Imperial, or Federal, Judicature. To put the matter simply, the Restrictions imposed on the Irish Parliament depend for their effectiveness on judgments of the Privy Council enforced by the Exchequer Judges.

Consider how the whole arrangement will work.82 The theoretical operation of the scheme is clear enough. A sues X in an Irish Court, say, to simplify matters, before the Exchequer Judges, for £1,000 due to A for rent. X bases his defence on an Act of the Irish Parliament, drawn by Irish statesmen, and approved presumably by Irish electors. A questions the constitutionality of the Act. The Exchequer Judges are divided in opinion. The matter at last comes before the Privy Council. The Privy Council pronounce the Act void, and give judgment in A's favour. He has a right to recover the £1,000 from X. The whole question in theory is settled. The law is unconstitutional, the law is void; A has obtained judgment. But can the judgment be enforced? This is the essential question; for the object of a plaintiff is to obtain not judgment but payment or execution. What then are the means for enforcing the judgment of the Privy Council when it is not supported by Irish opinion, when it sets aside an Act of the Irish Parliament, and when it may possibly be opposed to the decision, in a similar case, of an Irish Court? The means are the action of the Sheriff. What if the Sheriff is a strong Nationalist, and makes default? The only thing to be done is to appoint an officer empowered to carry out the decree of the Court. Of course if the Irish Ministry are bent on enforcing the judgment, if the Exchequer Court, whose judgment, it may be, has been overruled, is zealous in supporting the authority of the Privy Council, if the Irish people are filled with reverence for tribunals which are really English Courts, all will go well. But Mr. Gladstone himself cannot anticipate that novel constitutional machinery will work with ease, or that on the passing of the Home Rule Bill the disposition, the traditional feelings, and the sympathies of the Irish populace will be changed. Suppose that A is Lord Clanricarde; suppose that X is an evicted tenant. It is not common sense to believe that the judgment in his lordship's favour will as a matter of course take effect. At the present moment the Irish Courts, backed by the whole authority of the Imperial Government and the Irish Executive, often find a difficulty in enforcing their judgments. Will English Courts find it easy to give effect to a judgment in Ireland if the Irish Executive and its servants stand neutral or hostile? What if the Irish House of Commons turn out as unwilling that force should be used for enforcing the decree of the Privy Council as are some English Radicals that force shall be employed for the protection of free labourers against Trades Unionists? What if the officer of the Court is in fact some bailiff trembling for his own life? He may, I am told, call in the military. Of his authority to do this I am not quite sure. He must, I suppose, in the first instance apply to the Irish Home Secretary. The Irish Minister pressed by the opposition turns a deaf ear to the appeal of the bailiff. Application must then be made in some form or other to the English Ministry. The Imperial Cabinet will think more than once before horse, foot, and artillery are, against the wish of the Irish Government, put in movement to enforce the judgment of a British Court, and to obtain £1,000 for Lord Clanricarde. The matter will have become serious; the dignity of the Irish nation will be at stake; the complaints of the plaintiff will be drowned by the indignant clamours of eighty members at Westminster. The essential principle of the new constitution is that there shall be but one Executive in Ireland. The moment that the British Government intervenes to support the judgment of British Courts, we have in Ireland two hostile Executives. We tremble on the verge either of legal revolution or of civil war. An English Cabinet, I suspect, will hardly enforce the unpopular rights of a hated plaintiff by use of arms.

Why, it will be said, assume that the Irish Government and the Irish people will not enforce the law? The assumption, I answer, is justified not only by the history of Ireland, but by general experience. In all federations, even the best ordered, difficulties constantly arise as to the sphere of the Federal Government and the State Governments, and as to the enforcement of judgments delivered by Federal Courts. The authority of the federal tribunals has not always been easily enforced even in the United States. Serious difficulties hamper the action of the Swiss federal authorities. Even in England enthusiasm or conviction occasionally triumphs over legality. English clergymen are at least as reasonable as excited politicians, yet Ritualists have not invariably submitted to the authority of the Privy Council. Why should Irishmen be more reasonable than other men? In Ireland we are trying an entirely novel and dangerous experiment; we are fostering the spirit of nationality under the forms of federation. The Privy Council, hide the matter as you will, represents British power. If Ireland is a nation, the Government of Great Britain is an alien Government; the judgments of the Privy Council are the judgments of an alien Court, and reason forbids us to expect more submission to the decisions of an alien tribunal than to the laws of an alien legislature.

Suppose, however, that British judgments are enforced by the British army. Is this a result in which any Englishman or Irishman could rejoice? Can we say that the new constitution works well when its real and visible sanction is the use of British soldiers? The plain truth is that arrangements for legally restraining the Irish Parliament within the due limits of its powers must be ineffective and unreal and, if the principle of Home Rule be once admitted, the widest must be the wisest form of it. Colonial independence is better for Ireland and safer for England than sham federalism.83

Grant, however, that the judgments of the Privy Council can be enforced more easily than I suppose, still even Gladstonians would admit that the proper working of the new constitution depends on two presumptions. The one is that the Irish people are under no strong temptation to oppose the Restrictions or to throw off the obligations imposed upon the Irish Parliament or Government. The other that they possess no ready means for nullifying these Restrictions or obligations.

Each of these assumptions is false.

Restraints ineffective for the protection either of British interests or of individual freedom may be intensely irritating to national sentiment.

The limitations imposed on the powers of the Irish Parliament, or, in other words, of the Irish people, are opposed to the spirit of nationality and independence which Home Rule, it is hoped, will appease or satisfy. They will be hateful therefore not only to that multitude whom Gladstonians call the Irish people, but to every Irishman who is bidden by Gladstonians to consider himself a member of the Irish nation.

The Irish are a martial race; they excel in the practice, and delight in the pageantry, of warfare, but they are forbidden to raise a regiment or man a gunboat. They cannot legally raise a regiment of volunteers, they cannot save their country from invasion. Will they permanently acquiesce in restraints not imposed on the Channel Islands? Irishmen, Unionists no less than Home Rulers, are mostly Protectionists, and believe that tariffs may give to Ireland, not indeed a 'plethora of wealth,' for of this no man out of Bedlam except Mr. Gladstone dreams, but reasonable prosperity. Vain to argue that Protection is folly. Englishmen think so, and Englishmen are right. But English doctrine is not accepted in Germany, in France, in the United States, or in the British Colonies; why should Irishmen be wiser than the inhabitants of every civilised country, except England? The fact, in any case, cannot be altered that most Home Rulers are Protectionists, and that many of them desire Home Rule mainly because they desire Protection for Ireland. Yet Protection, at any rate in the form of a tariff, they cannot have.84 Take again the Restrictions imposed on the endowment of religion. All English Nonconformists, and many English Churchmen, hold these Restrictions to be in themselves politic and just. But the one strong reason for the concession of Home Rule is that Irishmen disagree with English notions of policy and of justice. No one can assign any reason why Irish statesmen, Catholics or Protestants, might not feel it a matter of duty or of policy to endow the priesthood, to level up instead of levelling down, to enter into some sort of concordat with Rome. It is a policy which is distasteful to English Nonconformists and to most Irish Protestants. But under a system of Home Rule, at any rate, English Nonconformists have no right to dictate the policy of Ireland. There is not the remotest reason why Restrictions on the endowments of religion and the like should not be hateful to Irishmen.

The limitations, in short, on the competence of the Irish Parliament are inconsistent with the fundamental principle of Gladstonian statecraft. It is a policy we are told of trust in the people, the limitations are dictated by distrust of the Irish people; Home Rule is to be granted in order that Irishmen may give effect to Irish ideas; the Restrictions are enacted to check the development of Irish ideas, and to impose English ideas upon the policy of Ireland.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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