Chapter X: The Framework of Home Rule (2)

Lastly, even if the question of inclusion in the House of Commons were "capable of solution," as it is not, there would remain the problem raised by the House of Lords. It is idle to ignore the fact that the bulk of the Irish peerage, and the Assembly of which it forms part, has been for a century in consistent and resolute opposition to the views of the vast majority of Irishmen. The recent curtailment of its powers, whether a right or a wrong measure in itself, does not make it any the more suitable as an Upper Chamber, under a Home Rule scheme, for the decision of important Irish questions reserved for settlement at Westminster; indeed, the bare proposal is the best imaginable example of the extraordinary complications which would ensue from the introduction of a quasi-Federal element into a unitary Constitution.

Federal Upper Chambers, so far from being hostile to State rights, are almost invariably framed on the principle of giving disproportionately large representation to the smaller States. In the United States and Australia, for example, every State, however small, has an equal number of Senators.

It will be clear now that there are two distinct ways of approaching the question of the framework of Home Rule. One may begin with the nature and extent of the powers reserved or delegated, and proceed from them to the inclusion and exclusion of Irish representation at Westminster, or one may begin with the topic of inclusion or exclusion and proceed from it to the nature and extent of powers. While premising that we must trust Ireland and evoke her sense of responsibility, I chose the latter of the two courses, because I believe it to be on the whole the most illuminating and trustworthy course. It is also the more logical course, though I should not have adopted it for that reason alone; and I have already given, I hope, some good reasons to show that in this matter logic and policy coincide. Englishmen pride themselves on the lack of logic which characterizes their slowly evolved institutions, but they may easily carry that pride to preposterous extremes. Faced now with the necessity of making a written Constitution which will stand the test of daily use they would commit the last of innumerable errors in Irish policy if, with full warning from experience elsewhere, they were to frame a measure whose unprecedented and unworkable provisions were the outcome of a distrust of Ireland which it was the ostensible object of the measure itself to remove.

IV.

IRISH POWERS AND THEIR BEARING ON EXCLUSION.

I pass to what I suggest to be the right solution: Total exclusion, as proposed by Mr. Gladstone in 1886, though he shrank from recommending what he knew to be its financial corollary. Mr. Bright regarded exclusion as the "best clause" of a dangerous scheme, and Mr. Chamberlain has admitted that he attacked it, as he attacked the proposals for Land Purchase, which he knew to be right, in order to "kill the Bill."[79] I propose only to recapitulate the merits of exclusion before dealing with the alleged difficulties of that form of Home Rule, and in particular with the point on which the controversy mainly turns--Finance.

To give Ireland Colonial Home Rule, without representation in London, is to follow the natural channel of historical development. Ireland was virtually a Colony, and is treated still in many respects as an inferior type of Colony, in other respects as a partner in a vicious type of Union. We cannot improve the Union, and it is, admittedly, a failure. Let us, then, in broad outline, model her political system on that of a self-governing Colony.

History apart, circumstances demand this solution. It is the best solution for Ireland, because she needs, precisely what the Colonies needed--full play for her native faculties, full responsibility for the adjustment of her internal dissensions, for the exploitation, unaided, of her own resources, and for the settlement of neglected problems peculiar to herself. As a member of the Imperial family she will gain, not lose. And the Empire, here as everywhere else, will gain, not lose.

These ends will be jeopardized if we continue to bind her to the British Parliament, and restrict her own autonomy accordingly. Reciprocally, we damage the British Parliament and gratuitously invite friction and deadlock in the administration either of British or of Imperial affairs, or both. Of the difficulties raised we can mitigate one only by bringing another into existence. Endeavouring to minimize them all by reducing the Irish representation to the lowest point, we either do a gross injustice to Ireland, by diminishing her control over interests vital to her, or, by conceding that control, remove the necessity for any representation at all. Most Irish Unionists would, I believe, prefer exclusion to retention. One gathers that from the debates of 1893, and the view is in accordance with the traditional Ulster spirit, and the spirit generally displayed by powerful minorities threatened with a Home Rule to which they object on principle. It was the spirit displayed by the Upper Canadian minority, in 1838-39 (_vide_ p. 101), in threatening to leave the Empire rather than submit to Home Rule, and by the Transvaal minority in the lukewarm and divided support given to the half-baked Constitution of 1905, and in the hearty welcome given to the full autonomy of 1906. How the Colonists expressed themselves matters nothing. We must make generous allowance for hot party feeling and old prejudices. The Canadian minorities did not really mean to call in the United States, nor does it signify a particle that some of the Johannesburgers vowed that anything could be borne which freed them from the interference of a Liberal Government. These opinions are transient and negligible. The spirit is essentially healthy. Paradox as it may seem, the uncompromising attitude of Ulster Unionists, as voiced by the ablest representative they ever had, Colonel Saunderson,[80] is hopeful for the prospects of Home Rule. They fight doggedly for the Union, but I believe they would prefer a real Home Rule to a half-measure, and in making that choice they would show their virility and courage at its true worth.

Where are the dangers and difficulties of exclusion? The dangers first. I believe, from a study of events in the last twenty-five years, that the strongest opposition to it was founded, not so much upon a reluctance to give Ireland powers full enough to render needless her representation at Westminster, but on a jealous desire to keep Irish Members under surveillance, as a dangerous and intractable body of men who would hatch mischief against the Empire if they were allowed to disappear from sight; the same kind of instinct which urged revolutionary Paris to stop the flight of Louis and to keep him under lock and key. In the case of Ireland it is possible to understand the prevalence of this instinct in 1886, though even then it was irrational enough. But in 1911 we should be ashamed to entertain it. Irish plots against the Empire have passed into electoral scares, and if they had not, representation in London would be no safeguard. We should also dismiss the more rational but groundless view that Imperial co-operation necessitates representation in a joint Assembly. Conference is a better method. Anyone who studies the proceedings of the last Imperial Conference and observes the number and variety of the subjects discussed and the numerous and valuable decisions arrived at, will realize how much can be done by mutual good-will and the pressure of mutual interest.[81]

It may be objected that, with one or two exceptions of quite recent date, the Colonies have contributed nothing to the upkeep of the Empire, except in the very indirect form of maintaining local military forces, that their present tendency --unquestionably a sound tendency--is to co-operate, not by way of direct money contribution to Imperial funds, but by the construction of local Navies out of their own money, and, in time of peace, under their own immediate control, and that Ireland cannot be allowed to follow their example. The objection has no point. Ireland, through no fault of her own, has reached a stage (if we are to trust the Treasury figures) where she no longer pays any cash contribution to Imperial expenses, nor is it possible to look back with any satisfaction upon the enormous total of her cash contributions in the past. They were not the voluntary offerings of a willing partner, but the product of a joint financial system which, like all consequences of a forced Union, was bad for Ireland. If we consider that a similar attempt to extort an Imperial contribution from the American States led to their secession; that the principle was definitely abandoned in the case of the later Colonies; that, on the contrary, large annual sums raised in these islands were, until quite recent times, spent for purposes of defence within these Colonies; that in the South African War two hundred and fifty million pounds were spent in order to assist British subjects in the Transvaal to obtain the rights of freemen in a self-governing Colony; and that to this day indirect colonial contributions in the shape of local expenditure are small in proportion to the immense benefit derived from the protection of the Imperial Navy, Army, and Diplomacy, and from the assistance of British credit; if we then reflect that before the Union Ireland was, in the matter of contribution, somewhat in the same position as Canada or Australia to-day--that is, paying no fixed cash tribute, but voluntarily assuming the burden, very heavy in time of war, of certain Army establishments; that for seventeen years after the Union contributions fixed on a scale grossly inequitable drove her into bankruptcy; that from 1819 until two years ago, she paid, by dint of excessive taxation and in spite of terrible economic depression, a considerable share, and sometimes more than her proportionate share, of Imperial expenditure;[82] if, finally, we remember that, cash payments apart, Irishmen for centuries past have taken an important part in manning the Army and Navy, have fought and died on innumerable battle-fields in the service of the Empire, and have contributed some of its ablest military leaders; if we consider all these facts soberly and reasonably, we shall, I believe, agree that it would be fair and right to place a Home Ruled Ireland in the position of a self-governing Colony, with a moral obligation to contribute, when her means permit, and in proportion to her means, but without a statutory and compulsory tribute.

What form should that contribution eventually take? Does it necessarily follow that Ireland should be given power to construct her own Navy, and raise and control her own troops? Let us use our common sense, and use it, let me add, fearlessly. If Ireland really _wanted_ full colonial powers, if, like Australia and Canada, she would be discontented and resentful at their denial, we should be wise to grant them, and rely on common interests and affections to secure friendly co-operation. Does it not stand to reason that a friendly alliance even with a foreign power, such as France, to say nothing of the far more intimate relations with a consanguineous Colony, is better business than any arrangement for common forces unwillingly or resentfully acceded to? But, as I pointed out in Chapter VIII., all these uneasy speculations about independent Irish armaments are superfluous. Ireland does not want separate armaments. The sporadic attempts to discourage enlistment in the Imperial forces are, as every sensible person should recognize, the results of refusing Home Rule. They would have occurred in every Colony under similar circumstances, and they do occur in one degree or another wherever countries agitate vainly for Home Rule. If Russia misinterprets such phenomena, we have, let us hope, more political enlightenment than Russia.

Ireland's strategical situation bears no analogy to that of Australia and Canada, which, for geographical reasons, are compelled, as South Africa will be compelled, to make a certain amount of independent provision, not only for military, but for naval defence, and would be wanting in patriotic feeling if they did otherwise. New Zealand, on the other hand, is too small to be capable of creating a Navy, and rightly contributes to ours. We have arrived at an interesting psychological point when Australia and Canada both seem to be inclined to reserve, in theory, a right to abstain from engaging their Navies in a war undertaken by Great Britain, but nobody will be alarmed by this theoretical reservation. It is an insignificant matter beside the Naval Agreement reached at the last Conference (1911)--an agreement worth more than volumes of unwritten statutes--to the effect that the personnel of the colonial fleets is to be interchangeable with that of the Imperial fleet and that in a joint war colonial ships are to form an integral part of the British fleet under the control of the Admiralty. With such an agreement in existence, it becomes superfluous to lay stress upon the fact that without formal and complete separation from the Mother Country in time of peace, the neutrality of a Colony would not be recognized by a belligerent enemy of Great Britain in time of war. In any case these developments have no concern for Ireland, which does not want, and need not be given, power to raise a local Navy. Nor, with regard to the regular land forces, will anything be changed. Troops quartered in Ireland will be, as before, and as in the Colonies now, under complete Imperial control. So will Imperial camps, magazines, arsenals, dock-yards. On the other hand, arrangements should certainly be made to permit the raising of Volunteer forces in Ireland. There are large numbers of Irishmen in the British Territorial Army, and Ireland sent five companies to the South African War. Though the poverty of the country will for a long time check the growth of Volunteer forces, it is the Union which presents the only serious obstacle to their establishment. No surer proof of the need for Home Rule could be adduced than the fact that it was held to be impossible to extend the Territorial system to Ireland. One of the objects of Home Rule is to remove this suspicious atmosphere. Whether local power to organize and arm Volunteers in Ireland should be given to the Irish authority, or, as in the Home Rule Bills of 1886 and 1893, reserved to the Imperial Government, is, if we trust Ireland, as we must, a secondary and not a vital matter, which would not affect the question of representation at Westminster.[83] Probably it would be most convenient to leave the matters in the hands of the Irish Legislature. In any case, the Command-in-Chief of all forces in Ireland, regular or volunteer, would, as in the Colonies,[84] be vested in the King.

The control of the Royal Irish Constabulary and Dublin Metropolitan Police does not affect the question of representation at Westminster. With or without representation, Ireland should be given the control of all her own police forces from the first, without the restrictions imposed by the Bills of 1886 and 1893 with regard to Imperial control of the existing forces.[85]

With the important exception of taxation, with which I shall deal last, no other power which should properly be reserved to the Imperial Parliament, or delegated to the Irish Parliament, has any appreciable bearing upon the exclusion of Irish Members from the House of Commons. Nor do any of them raise issues which are likely to be troublesome. Common sense and mutual convenience should decide them. The Army, Navy, and other military forces I have already dealt with. The Crown, the Lord-Lieutenant, War and Peace, Prize and Booty of War, Foreign Relations and Treaties (with the exception of commercial Treaties), Titles, Extradition, Neutrality,[86] and Treason, are subjects upon which the Colonies have no power to legislate or act, and of which it would be needless, strictly, to make any formal statutory exception in the case of Ireland, though the exception no doubt will be made in the Bill. Naturalization, Coinage, Copyright, Patents, Trademarks, are all matters in which the Colonies have local powers, whose existence, and the limitations attaching to them, are determined either solely by constitutional custom or with the addition of an implied or express statutory authority.[87] The two former would, I should think, be wholly reserved to the Imperial Parliament. In the case of the latter three, which were wholly reserved in the Bill of 1886 and 1893, Ireland might be placed in the position of a self-governing Colony.[88]

In Trade and Navigation it would be wise to take the same course. The Home Rule Bill of 1886, without giving Ireland representation at Westminster, denied her all powers over Trade and Navigation. The Bill of 1893 gave her powers over Trade within Ireland and Inland Navigation, and these powers at any rate should be given in the coming Bill, together with the larger functions also; though Ireland would naturally leave in operation the great bulk of the statutes concerned, since they intimately affect the commercial and industrial relations of the two countries. For the rest, Ireland no more than the Colonies can be freed from a measure of Imperial control maintained by Acts like the Merchant Shipping Act of 1894.

The Postal Service in Ireland should, as in the Bill of 1886, come under Irish control.

In the Home Rule Bill of 1893 (Section 34) it was laid down that for three years the Irish Legislature should not "pass an Act respecting the relations of landlord or tenant, or the sale, purchase, or letting of land generally." Such a provision repeated in the coming Bill would be inconsistent with the absence of Irish Members from Westminster. But I take it for granted that there is no question of its repetition. At first it might appear that Land Purchase should be distinguished from other branches of land legislation and reserved to the Imperial Government on the ground that it needs Imperial credit. I shall deal with this point fully in Chapter XIV., and only need here to express the view that Land Purchase cannot be separated from other branches of land legislation, or from the Congested Districts Board, or even from the control of the police, and that we are bound to give, and shall be acting wisely in giving, all these powers to the Irish Legislature from the first.

It is necessary perhaps to add that non-representation at Westminster does not in the smallest degree affect the complete legal supremacy of the Imperial Parliament over the subordinate Irish Legislature. This Legislature will in legal language be a "local and territorial" body, like those of the Colonies. It will be the creature of Parliament, and could be amended or even extinguished by it in a subsequent Act. The Bill of 1886 (perhaps because it never reached the Committee stage) said nothing explicit about the supremacy, though the Bill of 1893, while providing for representation at Westminster, repeatedly (and sometimes quite superfluously) affirmed it--in the Preamble, for example, and in a rider to Clause 2. The King's authority, through the Lord-Lieutenant, will be supreme in Ireland, as, through the Governors, it is supreme in the Colonies. Every Irish Bill, like every Colonial Bill, will require the Royal Assent, given through the Lord-Lieutenant, who will correspond to the Colonial Governors. The Lord-Lieutenant, like his colonial counterpart, will have to exercise both his Executive and Legislative functions in a double capacity: in the first instance by the advice of his Irish Cabinet, but subject to a veto by the British Cabinet. This dual capacity has belonged to all Colonial Governors ever since the principle of responsible government was established. As I showed in earlier chapters, it was regarded even by Lord John Russell as impossible and absurd as late as 1840; but it ought by now to be understood by every educated man, and we may hope to be spared the philosophical disquisitions and hair-splitting criticisms which it evoked from men who should have known better in the Home Rule debates of 1893.

Laws framed at Westminster will be applicable to Ireland, as they are frequently made applicable to the Colonies.[89] Conversely, only through the express legislative authority of Westminster will an Irish, like a Colonial Act,[90] be held to operate outside the borders of Ireland.

Apart from the strict legal omnipotence of Imperial sovereignty, it is, of course, impossible to say now what the exact constitutional position of Ireland will be under any form of Home Rule. No Bill can state it fully in set terms. Time, custom, and judicial decisions will build up a body of doctrine. It is so with the Colonies, whose exact constitutional relations with the Mother Country are still a matter of juristic debate, and are only to be deduced from the study of an immense number of judicial decisions and of Imperial Acts passed subsequently to the grant of the original Constitutions. Some of these Acts I have already illustrated. The one Act of general application, namely, the Colonial Laws Validity Act, cannot be read without the rest, though in form it appears to contain a complete set of rules. While giving general power to a self-governing Colony "to make laws for the peace, welfare, and good government of the Colony" (words which will also necessarily appear in the Home Rule Bill), the Act makes void all colonial laws or parts of laws which are "repugnant to the provisions of any Act of Parliament extending to the Colony to which such law shall relate," and this provision will no doubt, be applied, _mutatis mutandis,_ to Ireland, as it was in Section 32 of the Home Rule Bill of 1893. The Irish Legislature, that is, will be able "to repeal or alter any enactments in force in Ireland except such as either relate to matters beyond the power of the Irish Legislature, or, being enacted by Parliament after the passing of this Act, may be expressly extended to Ireland."

It will be noticed that the words "beyond the power of the Irish Legislature" referred to the subjects expressly excepted in the Bill itself. This is one of the points in which the Irish Constitution will bear at any rate a superficial resemblance to that of a Province or State within a Federation rather than to that of a self-governing Colony. The practice of expressly, and in the text of a Constitution, forbidding a self-governing Colony to legislate upon certain subjects, or of expressly reserving concurrent or exclusive powers of legislation to the Mother Country, has fallen into disuse since the establishment of the principle of responsible government. Such restrictions were inserted in the Canadian Union Act of 1840, where the old right of the Mother Country to impose customs duties in the Colonies for the regulation of commerce was reaffirmed, and even in the Acts of 1855 for giving full powers of self-government to the Australian Colonies, which were forbidden to impose intercolonial customs, though they were expressly granted the power of imposing any other customs duties they pleased,[91] but they do not appear in modern Constitutions, for example in the Transvaal Constitution of 1906. As I have indicated, this implies no change in the strict legal theory of Colonial subordination to the Mother Country; for, although the tendency of modern juristic thought is to ascribe "plenary" power to a Colony, restrictions nevertheless do exist in practice, and are contained, express or implicit, in a number of disjointed Acts.

A Federating Colony, on the other hand, like a foreign Federation, has in its own self-made, domestic Constitution to apportion powers with some approach to precision between the federal and the provincial authorities, and in this respect the Irish Bill, in reserving certain powers to the Imperial Parliament, will resemble a federating Bill, and it should follow the American and Australian precedents in leaving residuary powers to the subordinate or Irish Legislature, not, in accordance with the Canadian precedent, to the Parliament at Westminster. That is an indispensable corollary of excluding Irish Members from Westminster.

In speaking of powers reserved or delegated, and of residuary or unallocated powers, I have thus far referred only to powers which must be exercised, or at any rate may need to be exercised, if not by the subordinate legislature, then by the superior Parliament. Those restrictions on the Irish Legislature which are imposed in order to protect the religious or economic interests of a minority within the State, or as a recognition that there are certain kinds of laws which it is morally wrong to pass, fall into an altogether different category. By implication they morally bind the superior Parliament too, and are irrelevant, therefore, to the question of representation. They will be necessary, no doubt, in the coming Irish Bill, though they need not be so extensive as those which are to be found in Clause 4 of the Bill of 1893, some of which are borrowed from the famous anti-slavery amendments of 1865-1869 to the Constitution of the United States.[92] In inserting them we shall again be following the "Federal" rather than the "Colonial" model. No such restrictions have been imposed by the Mother Country upon any self-governing Colony. The nearest approach, perhaps, to such a tendency was the provision in the Transvaal Constitution of 1906 (Section 39), that "any law whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also subjected or made liable" should be specially "reserved"--that is, sent home by the Governor--for the signification of the Royal pleasure; but no similar provision appeared in the Act of 1909 for constituting the South African Union. In Federal systems, on the other hand, such restrictions, taking the form of self-denying ordinances, are common, whether appearing in the Federal Constitution itself or in the subordinate State Constitutions. The Constitution of the United States, for example, in addition to the anti-slavery provisions noted above, enacts that the National Government cannot (by Amendment I.) establish any religion or prohibit its free exercise, or (by Amendment V.) take private property for public use without just compensation, or (by Article 1, Sec. 9) grant a title of nobility. Neither (by Amendment XIV. and Article 1, Sec. 10 respectively) can a State do these things. By Article 1, Sec. 10, a State cannot pass a law impairing the obligation of a contract. Exactly similar restrictions appear in many of the individual State Constitutions. Others forbid the establishment of any church or sect; the introduction of armed men "for the suppression of domestic violence"; "perpetuities or monopolies," and a variety of other things. Analogous provisions are to be found in the British North America Act, 1867 (constituting the Dominion of Canada), where the provincial Legislatures are forbidden to interfere with certain rights and privileges of religious bodies in the matter of education. There are no limitations of the kind in the Australian Commonwealth Act of 1900. Australia, no doubt, correctly represents the tendency of modern thought on this matter. Some of the American safeguards have produced great inconvenience. Nor can it be denied that the most elaborately contrived legal safeguards are of less value than the moral safeguard afforded by the sense of honour, justice, and prudence in the community. The existence of these qualities in Ireland, as in other white countries, is the true foundation of Home Rule. Some day Irishmen will ask, as a united country, for the repeal of these statutory safeguards.

That brings me to the penultimate point of importance, which may be held to affect the inclusion or exclusion of Irish Members at Westminster--I mean the question of future constitutional amendment. Here the colonial analogies are a little complicated. Since the Australian Colonies Act of 1850, in the new grant of a Constitution to a self-governing Colony, power has invariably been given to amend its own Constitution, without, of course, detracting from any powers specified in it for preserving the sovereignty of the Mother Country. Canada, when federating in 1867, took the somewhat singular course of making no provision in her Federal Constitution for its subsequent amendment, though, by Section 92 of the British North America Act, she gave her Provinces the exclusive right to amend their own Constitutions, a right which three of them have used to abolish their Upper Chambers. The Dominion Constitution, then, cannot be amended otherwise than by an Imperial Act. Such amending Acts are promoted by the Dominion Government without any specially devised machinery for ascertaining the public opinion of Canadians. Australia, on the other hand, when federating in 1900, made elaborate arrangements, which have been put several times into operation, for the amendment of the Federal Constitution by the Australian people itself, without an Imperial Act. Now, it will follow as a matter of course that Ireland will be given powers, as in both the previous Bills,[93] to amend her own Constitution within certain defined limits, after a certain lapse of time, and without encroaching upon Imperial authority. For my part I would strongly urge that the powers now to be conferred should be much wider; for I believe that Ireland alone can make a really perfect Constitution for herself. But, that point apart, the question arises of the further amendment, outside such permissive powers, of the Home Rule Act itself, which will, of course, contain within its four corners the whole of the Irish Constitution, so far as it can be written down. No special arrangements were made for such a contingency in the Bill of 1893, presumably because Ireland was to be represented at Westminster and would have a share in the making of any amending act. In the Bill of 1886, which excluded the Irish Members, Mr. Gladstone proposed (in Clause 39) that no alteration of the Act should be made (apart, of course, from points left for Irish alteration) except (1) by an Imperial Act formally assented to by the Irish Legislature, or (2) by an Imperial Act for the passing of which a stated number of Members of both branches of the Irish Legislature should be summoned to sit at Westminster.

It will be clear, I think, now, in 1911, that this latter proposal is not worth revival. No substantial amendment of the Act should properly be made without the formal consent of the Irish Legislature, representing Irish public opinion, and the prior consultation with the Irish Cabinet which such consent would imply. If the lamentable necessity ever arose of amending the Act against the wishes of Ireland, the sudden invasion of Westminster by a body of angry Irish Members, too small to affect the result (for otherwise the attempt to amend would not be made) and large enough to revive the old political dislocation and passion, would not simplify the process of amendment or be of value to anybody concerned. The proposal was probably only suggested by a vague leaning towards the Federal principle, which, in the present case, we should certainly reject. It serves indeed as one more illustration of the anomalies which might result from the inclusion of Irish Members at Westminster. No more unhealthy position could be imagined than one which would render it possible for an amendment of the Home Rule Act, whether in the direction of greater latitude or of stricter limitation, to depend solely upon the Irish vote in an Assembly predominately non-Irish. That is not to the discredit of Ireland. The system would be just as indefensible, whatever the subordinate State concerned. It would be Federalism run mad, and would make Alexander Hamilton turn in his grave. It is worth while to note that, even under a sane and normal Federal system, the Irish Constitution would be less easily alterable in either direction than under the plan of treating her as a self-governing Colony. In the latter case action is direct and simple, while most Federal Constitutions are extraordinarily difficult to amend. The Dominion of Canada is only an apparent exception.

I turn lastly to Finance, the point which most closely affects representation at Westminster, and which distinguishes any form of quasi-Federal Home Rule most sharply from its alternative, "Colonial" Home Rule.

All Federal systems necessarily involve a certain amount of joint finance between the superior and the inferior Government. The distribution of financial powers varies widely in different Federations, but all have this feature in common--that the central or superior Government controls Customs and Excise, and is to a large degree financed by means of the revenue derived from those sources. The United States Government, as distinguished from that of the individual States, pays in this way for almost its entire expenditure.[94] So does the Dominion of Canada;[95] while in the Australian Commonwealth the receipts from Customs and Excise alone more than cover the whole Commonwealth expenditure.[96]

Finance makes or mars Federations. Some Federations or organic Unions of independent States have come into being through a strong desire in the separate States to have, among other things, a common system of Customs, and in the case of the German Empire and the South African Union a Customs Union or _Zollverein_ has preceded Federation. These phenomena are the most marked illustration of the general truth that a common desire to federate, or unite, on the part of individual States is a condition precedent to a sound Federation or Union. On the other hand, finance, especially the question of joint Customs, has sometimes presented obstacles to a Federation which, on other grounds, was earnestly desired. The long delay in achieving the Australian Federation was largely due to the desire of New South Wales to maintain her Free Trade system, while the financial arrangements generally caused most of the practical difficulties met with in arranging the Federation both of Canada and Australia, and in their subsequent domestic relations. Nova Scotia in the former case, and Western Australia in the latter, held out to the last instant, and the former subsequently had to receive exceptionally favourable treatment. In both Federations some measure of friction is chronic, and in neither has a perfectly satisfactory system been evolved. The Union of Ireland and Great Britain in 1800 was in this respect, as in all others, a flagrant departure from sound principle. The Customs Union which followed it was a forced Customs Union, and, together with the other financial arrangements between the two countries, has produced results incredibly absurd and mischievous. Some of these results I briefly indicated in Chapter V. In the following chapters I shall tell the whole story fully, and I hope to convince the reader that we should follow, not only historically, but morally and practically, the correct line of action if, in dissolving the Legislative Union, we dissolve the Customs Union also. That would involve a virtually independent system of finance for Ireland, and place her fiscally in the position of a self-governing Colony. If and when a real Federation of the United Kingdom becomes practical politics, she would then have the choice of entering it in the spirit and on the terms invariably associated with all true Federations or Unions. That is, she would voluntarily relinquish, in her own interest, financial and other rights to a central Government solely concerned with central affairs.

I need scarcely point out in this connection the vital importance of the question of representation at Westminster. Ireland resembles the self-governing Colonies, and differs from Great Britain, in that the greater part of the revenue raised from her inhabitants is derived from Customs and Excise--that is, from the indirect taxation of commodities of common use. If she is denied control of these sources of revenue under the coming Bill, it will be absolutely necessary, in spite of all the concomitant difficulties, to give her a representation at Westminster which is as effective as it can be made. But let it be realized that we could not make her control over her own finance as effective as that exercised by a small State within a Federation, because such a State, however small, has equal, or at any rate disproportionately large, representation in the Federal Upper Chamber, and Federal Upper Chambers can reject Money Bills. The Upper Chamber in Ireland's case would be the House of Lords, where she could scarcely be given effective representation, and which, in any case, cannot reject Money Bills.

Let us now examine Ireland's claim for fiscal autonomy.

FOOTNOTES:

[73] See p. 140.

[74] The Bill set up a Council of eighty-two elected and twenty-four nominated members, with the Under-Secretary as an _ex-officio_ member. So far it resembled the abortive Transvaal Constitution of 1905 (see p. 130), but the Irish Council was only to be given control of certain specified Departments, and was financed by a fixed Imperial grant. It was to have no power of legislation or taxation, and was under the complete control of the Lord-Lieutenant.

[75] This arrangement, which is peculiar to the Canadian Federation, is regarded by some authorities as a somewhat serious infraction of the Federal principle, since it seems to imply executive control of the Province by the central Government. The Governors of the States in the Australian Federation are appointed by the Home Government.

[76] The Judicial Committee has ruled "that the relation between the Crown and the Provinces is the same as that between the Crown and Dominion in respect of such powers, executive and legislative, as are vested in them respectively." (Maritime Bank of Canada _v._ Receiver-General of New Brunswick, 1892).

[77] They are governed by Executive Committees, the members of which need not be members of the Councils.

[78] In writing upon this subject, I am indebted to an able paper by Mr. Basil Williams, which is to be found in "Home Rule Problems."

[79] "Life of Parnell," R. Barry O'Brien, pp. 149 and 139-141.

[80] _E.g._, in 1893, on Clause I. of the Home Rule Bill (Hansard, p. 490): "The Irish minority were willing to be treated on the footing of a Colony, but they protested against a supremacy which would enable the honourable gentleman who formed the Irish Government to appeal to the Imperial Parliament for the assistance of the Army and Navy to compel the Irish minority to obey their behests."

[81] Cd. 5741, 1911. Some of the subjects discussed were Commercial Relations and Shipping, Navigation Law, Labour Exchanges, Uniformity in Copyright, etc., Emigration, Naturalization, Compensation for Accidents, etc.

[82] I am summarizing facts fully narrated in Chapters XI. and XII.

[83] In the Federal Constitutions of Australia and Canada the central Federal Parliament is responsible for the colonial defences, but the Provinces or States are, of course, represented in the Federal Parliament.

[84] Commonwealth of Australia Constitution Act, 1900, Sec. 58, and British North America Act, 1867, Sec. 15. Until quite recently it was the custom always to give the command of the Canadian Militia to a British officer lent to Canada. The present Commander, however, is a Canadian.

[85] See Appendix.

[86] A Colony may make local regulations to carry out an Imperial Law about extradition and neutrality, but may not touch the law.

[87] For the constitutional position of self-governing Colonies, the author owes much to Mr. Moore's "Commonwealth of Australia."

[88] The Commonwealth of Australia Constitution Act, 1900, and the British North America Act, 1867, in order to delimit the respective powers of the Federal and Provincial Legislatures, set out a list of subjects on which the Federal Parliament has exclusive or collateral power to legislate. There is implied, of course, a pre-existing right on the part of the Colony, as a whole, _qua_ Colony, to legislate on the matters referred to in the list. But the pre-existing right is subject to any pre-existing constitutional or statutory limitations. _E.g.,_ "Naturalization and Aliens" is in the list of Commonwealth powers (Sec. 51, xix.), and of the Canadian powers (Sec. 91, xxv.), but the power of any Colony is limited by Acts of 1847 and 1879 to giving naturalization within its own borders. (At the Imperial Conference of 1911 a scheme was foreshadowed for standardizing naturalization throughout the Empire.)

"Copyright" is also in both lists, but the colonial power is limited by the International Copyright Act of 1886, which, by Sec. 8, implies that a "British possession" may only make laws "respecting the Copyright within the limits of such possession of works produced in that possession." This Copyright Act is an example of implied limitation and sanction together. The Coinage Act of 1853 is an example of implied sanction only, in empowering a Colony to legislate as if the Act had not been passed. Another class of Imperial Acts confers _direct_ powers to legislate on certain subjects--_e.g.,_ the Australian Colonies Custom Duties Act of 1873 (removing the restrictions imposed upon intercolonial duties in 1850). The Naturalization Acts are partly of this character, and other examples are the Colonial Naval Defence Act of 1865, and certain provisions of the Army Act of 1881, and the Colonial Courts of Admiralty Act of 1890.

[89] _E.g.,_ Colonial Attorneys Belief Act, 1857; Colonial Probates Act, 1892; parts of the Finance Act, 1894; and Wills Act, 1861.

[90] _E.g.,_ Colonial Laws made under sanction of the following Imperial Acts: Colonial Prisoners Removal, 1869; Merchant Shipping, 1894; Sections 478 and 736, Colonial Marriages, 1866.

[91] _E.g.,_ 18 Vict. Ch. 55, Sections 42 and 43.

[92] See Appendix, under the head of restrictions on "Irish Matters." For convenience, land legislation is included in the list, though it clearly belongs to a different category, and I have so dealt with it above.

[93] In the Bill of 1886 (Clause 11, Subsec. 7) and in the Bill of 1893 (Clause 8, Subsec. 3) power was given to alter the qualifications of the franchise, etc., for the Lower House--in the former Bill after the first dissolution, in the latter after six years.

[94] In 1910, of the total Federal revenue of 675,511,715 dollars, 623,616,963 dollars were raised in this way, or twelve-thirteenths. (Postal revenue, which balances Postal receipts, is excluded.)

[95] In 1909-10 Dominion revenue from Customs and Excise was 75,409,487 dollars. Total ordinary expenditure (excluding capital accounts), 79,411,747 dollars.

[96] Estimate for 1910-11. Total Federal revenue, L16,841,629; revenue from Customs and Excise, L111,700,000. Total Federal expenditure L11,122,297. L5,267,500 will be available for return to the State exchequers (see pp. 245-246).