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Title: The New Irish Constitution
Author: Morgan, J. H.
Language: English
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*** Start of this LibraryBlog Digital Book "The New Irish Constitution" ***
The New Irish Constitution
An Exposition and Some Arguments
Edited on Behalf of The Eighty Club by
J. H. Morgan, M.A.
Professor of Constitutional Law at University College, London
Late Scholar of Balleol College, Oxford
“For the later kindness done in season, though small in comparison, may
cancel a greater previous wrong”—_Thucydides I._ 42.
Hodder And Stoughton
Londo, New York, Toronto
1912
CONTENTS
Introduction
Part I. The New Constitution
I.—The Constitution: A Commentary. BY PROFESSOR J. H. MORGAN
II.—Irish Administration Under Home Rule. BY LORD MACDONNELL OF
SWINFORD
III.—The Judicial Committee And The Interpretation Of The New
Constitution. BY SIR FREDERICK POLLOCK
IV.—Constitutional Limitations Upon The Powers Of The Irish
Legislation. BY SIR JOHN MACDONELL, C.B., LL.D.
V.—Financial Relations BY LORD WELBY
VI.—The Judiciary, The Police, And The Maintenance Of Law And Order. BY
THOMAS F. MOLONY, K.C., HIS MAJESTY’S SECOND SERJEANT-AT-LAW, CROWN
COUNSEL FOR DUBLIN.
VII.—The Present Position Of The Irish Land Question. BY JONATHAN PIM,
K.C.
Part I. The Fair Rent Acts and the Land Purchase Acts.
Part II. The Statutes Relating to the Relief of Congestion in
Ireland.
Part III. Statutes Relating to the Provision of Allotments of Land
and Dwellings for Agricultural Labourers in Ireland.
Part IV. Compulsory Registration of Land in Ireland.
Part II. A Historical Argument
VIII.—Irish Nationality. BY MRS. J. R. GREEN
IX.—Ireland As A Dependency. BY PROFESSOR A. F. POLLARD
X.—Ireland, 1782 And 1912 BY LORD FITZMAURICE
XI.—Grattan’s Parliament. BY G. P. GOOCH
XII.—“The Government Of Ireland In The Nineteenth Century”. BY R. BARRY
O’BRIEN
XIII.—The History Of Devolution. BY THE EARL OF DUNRAVEN
Part III. Contemporary Views
XIV.—Irish Nationalism And Liberal Principle. BY PROFESSOR L. T.
HOBHOUSE
XV.—The Imperial Parliament
(I) The State Of Parliamentary Business. BY CECIL HARMSWORTH, M.P.
(II) The Tendency Towards Legislative Disintegration. A Review Of
The Statute Book. BY H. DE R. WALKER
(III) Colonial Forms Of Home Rule. BY SIR ALFRED MOND, BART., M.P.
XVI.—Contemporary Ireland And The Religious Question
(I) A Catholic View. BY MONSIGNOR O’RIORDAN
(II) Catholic Tolerance in Practice.
(III) The Papal Decrees.
(IV) Some Protestant Views.
Footnotes
INTRODUCTION
A word of explanation seems necessary as to the origin of this work, its
design, and the obligations under which it has laid the Editor. The
Committee of the Eighty Club requested me some few months ago to undertake
the preparation of a book dealing with the Irish question. They did me the
honour of leaving entirely to my discretion both the design of the work
and the choice of the contributors. Of books about Ireland, particularly
of those which wear the livery of political parties, there are enough and
to spare. Most of them are retrospective. I am not insensible to the value
of a historical argument—as the design of the second part of this book
sufficiently attests—but “few indeed,” as Burke has remarked, “are the
partisans of departed tyranny,” and it seemed to me more profitable to pay
some attention to the present and the future. The restoration to Ireland
of her Parliament is an event which not only appeals to the imagination of
the historian, but also stimulates the speculation of the jurist, and
invites the assistance of the administrator. I have, therefore, attempted
in the earlier part of this book to secure a sober and dispassionate study
of the new order of government by writers who can speak with the authority
of a life’s vocation. Their names need no commendation from me.
The second part of the book may be regarded as supplementary to the first,
in that it deals with constitutional history. When public men of such
distinction as Mr. Balfour can speak of Irish patriotism, in so far as it
used a Parliamentary vocabulary, as an exotic, and Irish nationality as a
political afterthought, it seems not unimportant to show, as Mrs. J. R.
Green and Professor Pollard have here shown, that the title-deeds of that
nationality are not the forgeries of a political scriptorium, but are as
authentic as anything an Englishman can boast. No one who has served any
apprenticeship to Irish history needs to be reminded of the indomitable
charm with which Irishmen have always taken captivity captive, and
naturalised the alien and the oppressor. No argument for Irish nationality
is more potent than this. One may, if one is so perverse, think Bolton
pedantic, Molyneux curious, Swift rhetorical, and Grattan forensic, but
there is no denying that these Anglo-Irish champions of Irish nationality
spoke with a truly native passion. Nor is it a little remarkable that at
the eleventh hour history should have repeated itself, and that the heart
of the ruling caste should have throbbed, as Lord Dunraven has shown in
his remarkable chapter, with a new impulse toward self-government.
Grattan’s Parliament, as one may read in Mr. Gooch’s essay, was composed
of men of much the same antecedents and prestige as those who are
associated with Lord Dunraven in that significant movement of Irish
Unionism which has to-day met Nationalism half-way. That Parliament is
about to be restored to Ireland under conditions, which, as Lord
Fitzmaurice shows, are, allowing for the difference in time and in the
categories of political thought, substantially those which the Rockingham
Ministry would, had they been free agents, have imposed in 1782. Their
imposition would have precluded the union, and we should have been saved
that sorry story, to be read in Mr. Barry O’Brien’s succinct pages, of
concessions delayed until they had lost their grace, and promises redeemed
when they had lost their virtue.
Much of these historical chapters is but melancholy reading. But it is for
Englishmen to remember these things, as it will be, I hope and pray, for
Irishmen to forget them.
The third part of the book comes nearer home. At a time when our
fellow-subjects across the oceans are repudiating, as Irishmen have
repudiated, the name of “colonists,” with all its suggestions of the
dependent tenure of Roman law, and are claiming, as Irishmen long ago
claimed, the status of a “dominion,” it does not lie with Englishmen,
least of all of the Imperialist school, to challenge the claims of the
Irishmen of to-day to nationality. Professor Hobhouse reminds us that
where this stubborn non-conformity to the ruling order endures, it must be
accepted as the touchstone of nationalism. But the Irish demands are
reinforced by English exigencies, and, as three Liberal Members of
Parliament remind us, the Imperial Legislature is already disintegrating
domestically under the stress of its manifold burdens. Not for the first
time is the path of justice thus discovered to be also the path of
expediency.
In the later chapters of this book will be found a view of the present
state of Ireland, from the pens of those best qualified to speak of it,
the pens of men who have spent their lives in ministering to her people. I
would commend to the attention of the reader those chapters, in which a
great dignitary of the Roman Church, a distinguished scholar of the Church
of Ireland, and two members of Nonconformist bodies, who stand high in
their respective communions, pray for the deliverance of the social life
of their country from the obsession of a busy and alien fanaticism.
Dea magna, dea Cybelle, dea domina Dindymi,
Procul a mea tuus sit furor omnis, era, domo:
Alios age incitatos, alios age rabidos.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
It must be understood that the responsibility for each chapter is confined
to the person who wrote it. We are all united in a common allegiance to
the principles of Home Rule, but that allegiance is not incompatible with
some diversity of view as to the form which it should take. It seems to me
that the book gains, rather than loses, in value by this degree of
latitude of opinion. It is, perhaps, hardly necessary to add that the
order in which the chapters appear makes no pretence to anything so
invidious as an order of merit—otherwise the first chapter would have been
the last; it is designed simply with a view to a logical sequence.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
I wish to thank Lord Haldane and Mr. Birrell for the enjoyment of certain
privileges in the preparation of the book, without the concession of which
its appearance at this moment would have been impossible. I have also to
thank Lord Haldane for reading the proofs of my own chapter on the
Government of Ireland Bill, and giving me the benefit of that profound
learning which is always so generously placed at the service of the
student who seeks its guidance. To my friends, Lord Fitzmaurice, Mrs. J.
R. Green, and Mr. J. A. Spender, I am indebted for many kind offices of a
diplomatic character. Throughout the conduct of my editorial task I have
had the wise counsel and unfailing support of Mr. Bourchier Hawksley, the
Chairman of the Home Rule Committee of the Eighty Club, and to him I
desire to express my grateful acknowledgments.
J. H. MORGAN.
The Temple.
_May, 1912._
PART I. THE NEW CONSTITUTION
I.—The Constitution: A Commentary. BY PROFESSOR J. H. MORGAN
“Home Rule is at bottom Federalism,” we are told(1) by the most
distinguished jurist among its opponents. It is urged against it that
Federal Governments are almost invariably weak Governments, and that, in
so far as they are strong, they are as “symmetrical” as the new
constitution is unsymmetrical. Cornewall Lewis once thought it necessary
to write a book on the Use and Abuse of Political Terms, and there is a
great danger in the present controversy of our being enslaved by the
poverty of our political vocabulary. The term “Federalism” is put to such
new and alien uses as to darken counsel and confuse thought. That Federal
Executives are usually weak, that in the dual allegiance of a Federal
system men often prefer the State authority which is near to the Federal
authority which is remote, that the respective limits of Federal and State
legislation are defined with difficulty and observed with reluctance, that
conflict of laws is more often the rule than the exception, that Federal
constitutions are rigid rather than flexible, and, in a word, that
progress is sacrificed to stability: all these things are true, and all
these things are irrelevant. The Government of Ireland Bill is not, and
cannot be, the corner-stone of a Federal system for the United Kingdom,
although its duplication in the case of Scotland and of England would not
be impossible, should it appear desirable. We may, for want of a better
term, call it the foundation of a system of Devolution, but we must not
call it Federalism.
Putting on one side for the moment the question whether Home Rule is
Federalism or not, I am inclined to enter a protest against all these
attempts to fit the Bill into the categories of the jurist. It is very
doubtful whether any two constitutions in the world, even federal
constitutions, can be brought under one species. Two of the most
successful “federal” constitutions present the gravest anomalies to the
theorist. The Canadian Constitution, according to Professor Dicey, betrays
a logical fallacy in the very words of its preamble;(2) and German jurists
have wrangled no less inconclusively than incessantly about the legal
character of the Empire and as to where its sovereignty resides;(3) yet in
neither case has the practical operation of these constitutions been much
the worse for the legal solecisms which they present. Indeed, it would not
be too much to say with Aristotle that the “mixed” and not the “pure” type
of government is the most successful, and that when Federalism is, as in
the United States, at its purest, it is also at its weakest. The
constitution of Imperial Germany ought, on this kind of reasoning, to be a
flagrant perversion, and yet it has persisted in enduring for some
forty-one years, and the prestige of its principal organ, the Bundesrath,
although violating all Mr. Balfour’s principles as to “equality” in its
constitution, is, according to the doyen of the constitutional lawyers of
Germany, increasing every day.(4) The argument that “Federalism” is
incompatible with the preponderance of the “predominant partner,” and that
no “federal” union is possible in these islands owing to the superior
position occupied by England, would, even if it were relevant, be easily
refuted by the example presented by the hegemony of Prussia.
The same objection may be urged against the contention that the grant of
self-government, whether to Ireland alone or to the rest of the United
Kingdom, is both reactionary and unprecedented. The progress of all
civilised communities, we are told, is towards political integration, not
away from it. Devolution, it is said, is gratuitous in the case of a
“United” Kingdom whose very union represents an ideal imperfectly achieved
by the less fortunate countries which have had to be content with
something less complete in the form of Federalism. Nations or Colonies
mutually independent federate as a step towards union; it is
“unprecedented” to reverse the process and qualify union by looser ties of
cohesion. Now this attempt “to construct a normal programme for all
portions of mankind”(5) cannot be sustained. If it could, it would avail
as a conclusive argument against the grant of self-government to our
Colonies whose claims to legislative independence grow with their growth
and strengthen with their strength.(6) But it is not even true of Federal
Unions. Anyone who takes the trouble to study the history of judicial
interpretation of the American Constitution will find that there is a
constant ebb and flow in the current of “unionism.” The intention of the
framers of the 14th Amendment to create a United States citizenship has
been largely neutralized by the decisions of the Supreme Court, which have
inclined strongly in the direction of the legislative autonomy of the
States.(7) Nor is this all. We are told that Federal Constitutions are
“round and perfect and self-contained,”(8)—that they are characterized by
“equality” of all the parts—and that, like the work of the divine
law-giver of early communities, they are finished the moment they are
begun.(9) But these confident inductions cannot be sustained. The history
of the constitution of the United States and of Imperial Germany tells
another story—a story of ancillary communities and dependencies in various
stages of political apprenticeship. If we look for the American
Constitution where all such constitutions must really be sought, that is
to say not in the original text, but in the commentary of the courts, we
shall find a truly remarkable tendency of late years to emphasize this
heterogeneity, inequality and incompleteness.(10)
The new Bill proposes a delegation of authority, both executive and
legislative. Unlike a Federal constitution, it contemplates no
distribution of sovereignty (begging a question which has often vexed the
jurists as to the partibility of sovereignty). The new Government in
Ireland will, indeed, be carried on in the name of the Crown, the writs of
the Irish Court will run in the King’s name, the statutes of the Irish
Parliament will be enacted by the King’s Most Excellent Majesty, by and
with the advice and consent of the Senate and Commons. But the Imperial
Government and the Imperial Parliament will remain supreme. The executive
power in Ireland will continue vested in His Majesty, though some
prerogatives may be delegated to the Lord-Lieutenant who, as respects
them, will exist in a dual capacity—some of these he will exercise on the
advice of the Imperial Government, others on the advice of the Irish
Government. So far, however, as the law, as distinguished from convention,
is concerned, he will be in no way bound to act on the advice of his Irish
Ministers except in so far as his “instructions” require him to do so. The
words of the Bill do, indeed, contemplate with more explicitness than is
usual in our written constitutions, a transfer of executive as well as of
legislative authority, but they are by no means exhaustive, and they still
leave it to His Majesty to determine(11) what prerogatives shall be
delegated after the Act has come into force. As regards the legislative
power, it will remain with the Imperial Government to give it effect by
granting or withholding the King’s assent to Irish legislation,(12) and
the Imperial Parliament may, at any time, exercise its supremacy to the
prejudice of such legislation, even after it has found its way on to the
Irish statute-book. As regards the judiciary, there will, of course, be no
dual judiciary: Irish Courts will interpret and enforce Imperial as well
as Irish statutes, but both in the one case and in the other their
judgments will be subject to appeal to an Imperial Court—the Judicial
Committee of the Privy Council. In other words, the Imperial power will be
supreme in the executive, the legislative, and the judicial sphere.
Now in Federalism in the true sense—and I regard the constitution of the
United States as the archetype—there is no such subordination. The
authority of the constituent states and of the Federal nation are distinct
and independent of one another. The Governor of the State is appointed not
by the Federal authority, but by the State itself, whose servant he is.
There is no “Crown” to serve as a common denominator of State and Federal
Executives.(13) The one is not subordinate to the other, but is
co-ordinate with it. The legislation of the State is subject to no
external veto by the President. Nor is it subject to a legislative veto.
In all matters not expressly conceded to the Federal Legislature, the
State Legislatures remain as supreme after the enactment of the Federal
Constitution as they were before it. In the legislative, as in the
executive, sphere, the two authorities are co-ordinate. So with the
judiciary. The decisions of the State Courts, in so far as they deal with
State matters, and do not involve the interpretation of the Federal
Constitution, are final and subject to no appeal to the Supreme Court at
Washington. Conversely, Federal Circuit Courts exist independently of the
State Courts to decide cases arising under Federal statutes or involving
the interpretation of the Federal Constitution, and their judgments are
enforced not by the State Executive but by the Federal Executive, which
has its own marshals for the purpose. Nor can an act done by a Federal
official, in obedience to a Federal statute, be punished by the State
Court, even though it appear to involve a breach of a law of the
State.(14)
It is this dual allegiance that constitutes the inherent weakness of all
Federal systems. Arguments based upon it have been urged against the grant
of self-government to Ireland. Even those who admit that Federal analogies
have no application so far as the relations of the Imperial and Irish
legislatures are concerned, and who concede that the Irish Parliament will
be as subordinate as a State Parliament in a Federal system is
co-ordinate—none the less insist that in the relation of the two
executives there is a real and perilous dualism. Many opponents allege,
and no doubt, believe, that, with an Irish Parliament sitting at Dublin,
the King’s Writ will not run, the decisions of the Judicial Committee will
not be enforced. Imperial statutes will not be obeyed, and Imperial taxes
will not be collected. If there were a real delimitation of Courts and
Executives, Imperial and Irish, under the new system, such a danger,
though remote, would be conceivable. But no such sharp distinction is to
be found in the Bill. In political unions, the central Government may act
upon its subjects in a particular state directly through its own
agencies—its own Courts, its own Executive officers, and its own
police—this is the true Federal type; or it may act indirectly through the
agency of the State authorities. Conversely, the State Governments may act
directly through their own agencies—this again is the Federal principle,
or they may act indirectly through Imperial agencies. Now wherever this
indirect action is employed in both its forms the distinction between the
two authorities is confused, the Federal principle undergoes a
qualification which, by depriving it of half its symmetry, deprives it of
all its weakness. Just this reciprocal relationship is established between
the Imperial Government and the Irish Government.
Imperial officials will be at the service of the Irish Government, and
Irish officials at the service of the Imperial Government. For example, in
the collection of taxes imposed by the Irish Parliament, the Irish
Government will depend upon Imperial revenue officers to assess and
collect them. The Imperial Government, on the other hand, will depend upon
Irish Courts and Irish sheriffs to enforce their collection. Irish
sheriffs will, in turn, depend upon an Imperial constabulary to assist
them in levying execution. I shall return to some of these points in
greater detail when I come to deal with the relations between the
Executive and the Judiciary, and the maintenance of law and order. It is
sufficient for me to remark here that the Irish Nationalist who wishes to
defy the Imperial Government, and the Irish Unionist who wishes to defy
the Irish Government, will each be hard put to define what he is pleased
to regard as the limits of political obligation. He will find it difficult
to distinguish where the authority of the Irish Government ends and that
of the Imperial Government begins.
The Supremacy of the Imperial Parliament.
In the new Bill the supremacy of the Imperial Parliament is secured by
express words. The words are not necessary. No Parliament can bind its
successors, and what one Parliament has done another Parliament may undo.
Even when one Parliament has been at pains, by declaring its legislation
“perpetual” or “unalterable” to bind posterity—as in the case of certain
clauses in the Irish and Scotch Acts of Union—its injunctions have been
disregarded by its successors with no more formality than is necessary in
the case of any other legislation. An Act setting up a new Constitution is
no more irrevocable than an Act authorising the imposition of the income
tax. If, therefore, the Imperial Parliament chooses to grant a
Constitution to Ireland, there is nothing to prevent its revoking or
amending that grant, even (we submit) though it should have been at pains
to enact that the Constitution could only be surrendered or altered by the
consent of the Legislature which that Constitution created. Some doubts
did, indeed, arise as to this point in the case of the Home Rule Bill of
1886, which not only excluded the Irish members from Westminster, but made
provision for the amendment of the new Constitution by stipulating that
such amendment should be made, if at all, by the joint authority of the
Irish and English Parliaments. Whether this would have had the effect of
preventing the “Imperial” Parliament from amending such a Home Rule Act
without calling in the assistance of the Irish Parliament was much
discussed at the time.(15) Obviously, the question does not now arise, as
the Irish members are to continue to sit at Westminster.(16)
It is therefore open to the Imperial Parliament at any time to repeal or
amend the Government of Ireland Bill after it has become law. On the other
hand, the Irish Parliament will have no power, except in so far as such
power is conceded by the Act itself, to alter its provisions. This is
stated in the Bill itself,(17) but the statement is superfluous. It
follows from the doctrine of the supremacy of the Imperial Parliament that
statutes of that Parliament can only be repealed by the Parliament itself.
No constitution granted to a British Colony, however large the grant of
self-government it contains, can be altered by that colony unless the
power to alter it is expressly conceded. Such a power, when the
Constitution itself does not prescribe some particular method of
constitutional amendment, has indeed been granted in general terms by
Section 5 of the Colonial Laws Validity Act, but this Act could not apply
to Ireland, which is outside the legal definition of a colony contained in
the Interpretation Act of 1889. The only powers of constitutional
amendment which the Irish Legislature will possess are those expressly
conceded in Clause 9, which enables it after three years from the passing
of the Act to deal with the franchise and with re-distribution.
The Irish Parliament will, of course, have power to repeal any existing
Acts of the Imperial Parliament in so far as they relate to Ireland, and
do not deal with matters exempted from its authority. It would be
impossible for it to legislate for the peace, order, and good government
of Ireland if it had not this power, and the power is implied in the
general grant. But if the Imperial Parliament chooses to continue to
legislate for Ireland, even in matters in regard to which the Irish
Parliament has been empowered to legislate, such Imperial legislation will
be of superior obligation. This is also a corollary of the doctrine of the
supremacy of Parliament, and it was not necessary to state it in the
Bill.(18) The grant of particular legislative powers to Ireland does not
prevent the Imperial Parliament from subsequently legislating in
derogation of those powers. The supremacy of the Imperial Parliament is as
inexhaustible as the fountain of honour.
It is just here that the divergence from Federal principles is most
marked. Under the British North America Act the legislative powers of the
provinces are “exclusive” of Dominion legislation within their own
sphere.(19) So, too, in the case of the Australian Constitution, under
which the residuary legislative powers remain with the States, the Federal
Parliament is excluded from legislating in any matters not expressly
conceded to it. The result is seriously to limit the operations of such
powers as it does possess. It has, for example, over Customs and Excise,
but there are other ways of giving a preference to a trade than by the
imposition of duties: a low standard of factory legislation may operate in
the same direction, as the Federal Parliament found to its cost when it
attempted to pass an Excise Tariff Act, depriving manufacturers of the
advantages of the new tariff in those States in which a certain industrial
minimum was not observed. The Act was held invalid by the High Court(20)
on the ground that it exceeded the powers conferred on the Federal
Parliament by the Constitution, and encroached on the exclusive powers of
industrial legislation which belonged to the States. No such situation
would be possible under the Government of Ireland Act, because the powers
of the Irish Legislature are not exclusive of the powers of the Imperial
Parliament, but merely concurrent. And whenever an Irish and an Imperial
statute conflict, the rule of construction will be in favour of the
latter.
The Powers of the Irish Parliament
The Irish Parliament is given a general power to make laws for “the peace,
order, and good government” of Ireland. The words are those usually
employed in the grant of legislative power in colonial constitutions, and
they have been interpreted as authorising “the utmost discretion of
enactment for the attainment of the objects appointed to them.”(21) No
considerations of policy or equity or repugnancy to the common law would
avail to challenge an Irish statute on the ground that it was _ultra
vires_. Within the limits assigned to it the Irish Parliament will have
authority as plenary and as ample as the Imperial Parliament itself
possesses or can bestow, and it may, if it so pleases, delegate this
authority.(22) The Irish legislature will, however, have no power to
legislate extra-territorially.(23) It could not, for example, pass a law
to punish the Irish subjects of the Crown for offences committed outside
Ireland.
Now, these powers are undeniably large—larger, indeed, than is usually the
case even in Federal systems where the unenumerated or “residuary” powers
are left to the State. It is conceivable that they might be exercised to
the prejudice of the Imperial Government and of the union of the two
kingdoms, and there is nothing in these clauses of the Act to prevent them
being so exercised. Treating it as a statute on the ordinary principles of
the interpretation of statutes, the Judicial Committee would have no
option but to regard as valid any legislation of the Irish Parliament that
did not come within the exempted powers. With policy they are not and
would not be concerned. But then it must be remembered that there is the
possibility of the exercise of the veto of the Imperial Government in
cases where legislation, though _intra vires_, is inequitable,
inexpedient, or contrary to Imperial interests. This executive veto is
really a juristic fact of great importance—it has always been present to
their lordships’(24) mind as a reason for refusing to apply to the
interpretation of the Federal constitutions of Canada and Australia the
restrictive principles of the Supreme Court, as laid down in Marshall’s
famous doctrine of “implied restraints.”(25) When no such veto is in the
hands of the Central Government, it becomes necessary to restrict, either
in the text of the constitution, or in judicial interpretation of it, with
considerable precision, the powers of the local legislatures. This is why
a true Federal system always involves a very large amount of litigation.
But litigation is a thing to be avoided, if possible. It encourages
political parties to carry test cases into the courts.
Constitutional Restrictions.(26)
The problem of protecting the rights and privileges of minorities in
Ireland by constitutional restrictions is the most delicate that ever
perplexed the mind of the jurist. It is one which puts the Irish problem
in a category by itself. In no other Constitution in the Empire—with the
exception of a single clause in the British North America Act—is any
attempt made to fetter the discretion of Parliaments by the imposition of
juristic limitations upon their legislative capacity. To say a Parliament
shall not legislate except upon certain subjects is one thing, to attempt
to define _how_ it shall legislate upon those very subjects is quite
another. The latter is as difficult as the former is simple. To adopt a
pedestrian illustration, it is easy enough to forbid motorists to drive
along certain roads, but to forbid them to drive “recklessly” along any
road is another matter. “Recklessly” at once raises questions of standards
of negligence and actionable rights. How are we going to distinguish
“just” from “unjust” legislation, taxes which discriminate from taxes
which do not, “rights” of the subject which a Parliament may disregard
from those which it must respect? There has never been any doubt that a
colonial legislature may deal with the common law rights of the subject as
it pleases, may abolish trial by jury, suspend the writ of _habeas
corpus_, pass bills of attainder, enact _ex post facto_ legislation, take
private property without compensation, and indemnify the Executive against
actions for breaches of the law—if any doubt ever existed it was set at
rest by the Colonial Laws Validity Act. But in the case of Ireland it was
thought necessary—owing, doubtless, largely to the fears excited in the
minds of Englishmen by the Protestant minority in Ulster and the
commercial interests in both countries—to insert in the earlier Home Rule
Bills an elaborate series of restrictions upon the exercise of even those
legislative powers which the Irish Parliament might admittedly possess.
For a parallel to these restrictions one would have to go back to the
Constitution of the United States and the philosophy of “natural rights.”
A more difficult problem it is impossible to conceive, because a
Constitution of this kind runs counter to the whole tradition of
Parliamentary sovereignty in this country and the colonies. Anyone who
takes the trouble to study the decisions of the Privy Council when
colonial legislation has been impugned on the ground of its infringing the
common law rights of the subject or “natural justice”(27) will discover
that constitutional limitations of this kind upon the powers of colonial
Legislatures are not recognised by our judges. In the absence of express
words in the colonial Constitutions, such restraints do not exist. “The
only thing,” as Lord Halsbury grimly remarked on one occasion, for the
subject whose actionable rights are taken away by a Colonial Act of
Indemnity “to do is to submit.”
The earlier Home Rule Bills were characterised by a most elaborate code of
rights which the Irish Legislature might not infringe. Its main provisions
might be classified as having three objects in view: (1) The protection of
the subject in life, liberty, and property; (2) the prevention of
legislation discriminating against any part of the United Kingdom, and (3)
the preservation of the existing rights and privileges of the Protestant
community in Ireland. In one form or another almost all these principles
are to be found embodied in the Constitution of the United States, and in
the case of the first of them a clause of the famous 14th Amendment was
actually incorporated, with some slight alterations, in Sub-section 8 of
Section 4 of the Bill of 1893, according to which the powers of the Irish
Legislature should not extend to the making of any law
“whereby any person may be deprived of life, liberty, or property
without due process of law in accordance with settled principles
and precedents or may be denied the equal protection of the laws
or whereby private property may be taken without just
compensation.”
These impressive words bristled with legal controversy. Did they, for
example, secure to the subject the preservation of the right to trial by
jury? In the States of America it has been authoritatively laid down(28)
that, in the absence of further defining words in the State constitutions,
they do not. Such procedure is indeed safeguarded in the Federal Courts,
but only in consequence of express words. In the case of the States,
Cooley, a great authority, says that “whatever the State establishes will
be due process of law,” and Story regarded the words by themselves as
simply securing a judicial hearing—that is to say, as they stand they
merely secure the separation of legislative and judicial functions and
prevent the State Legislature from passing laws which are in effect
judicial decrees.
What the words would really have secured to the subject in Ireland was
very doubtful. The object of the draughtsman appears to have been to
secure to the subject in Ireland all the protection of the law, including
trial by jury, which he would have enjoyed at the date of the passing of
the Bill, understanding by law both common law and statute law. If the
Imperial Parliament had, subsequent to the date of the Act itself, passed
legislation limiting trial by jury or other common law rights, this would,
presumably, have provided the Irish Parliament with a new “settled
principle and precedent,” enabling it to go further. In other words, the
clause might have operated to secure a certain standardization of
legislation as between the two countries.
The Argument Against Restrictions.
But it seems to me that such standardization is best secured by definitely
reserving certain subjects of legislation to the Imperial Parliament
rather than by imposing upon the exercise of such legislation by the Irish
Parliament constitutional limitations which are certain to raise great
doubts and provoke excessive litigation. It would be far better to reserve
criminal law, as has been done in Canada, in the case of the provincial
legislatures—though not without difficulty—than to lay down certain
abstract principles. Moreover, is it desirable to maintain such uniformity
of legislative principle? There is a great deal to be said for reserving
certain subjects of legislation to the Imperial Parliament, but to impose
on the whole sphere of legislation entrusted to the Irish Parliament the
same principles as those governing the English Statute-Book, or the common
law, is to subject almost every conceivable Irish statute to the challenge
of litigious politicians. This is what has happened in the United States.
The clause, as it stood, might quite conceivably have prevented the Irish
legislature from extending the procedure of the Summary Jurisdiction Acts
to cases where it was not so extended in England—a most mischievous
result, seeing that this procedure is the sanction by which nearly every
new statute extending the scope of industrial or public health legislation
or conferring powers on local authorities is enforced.
Uniformity of legislation between the two countries is not desirable in
all directions nor has it hitherto been followed. In matters of
expropriation, for example, the drastic procedure of the Housing and Town
Planning Act has not been adopted in Ireland. Ireland has her own standard
in these matters in the case of the Irish Local Government Act, and the
Land Purchase Acts, and I am not at all sure that the principles of the
English Land Clauses Consolidation Act and Railway Clauses Consolidation
Acts as to arbitration and compensation are by any means ideal. Still less
has uniformity in the matter of criminal law been the rule hitherto
between the two countries. It would be difficult to find a parallel in
this country for the Crimes Act of 1887 (which is still on the
Statute-Book although it is no longer put in force by proclamation) with
its extensions of summary jurisdiction to cases of criminal conspiracy,
intimidation, riot, and unlawful assembly, and its provisions for a change
of venue.
It is perhaps more open to question whether the words of the 1893 Bill
designed to secure to the subject “the equal protection of the laws,” and
to prevent legislation discriminating against Englishmen and Scotsmen(29)
under certain circumstances, ought not to have been repeated. The words
“equal protection of the laws” have been interpreted in the United States
in such a way as to secure that legislation, particularly in the exercise
of the “police power,” shall be impartial in its operation.(30) On this
interpretation, they would for example, have prevented an Irish
Legislature from exempting Catholic convents which are used as workshops
from the operation of the Factory Acts. But that might be secured in
another way, and the words might, if adopted, have operated to prevent
much useful legislation. It seems likely enough that discriminating
legislation, in so far as it tended to prevent a particular class of
persons from residing in Ireland or penalised non-residents, would be held
invalid in any case on the ground that it conflicted with the reservation
to the Imperial Parliament of such subjects as “trade” and
“naturalization.”(31) And, as regards non-residents, it must be remembered
that the grant of legislative powers can only be exercised “in respect of
matters exclusively relating to Ireland or some part thereof”—words which
may be found to be of considerable importance.
The same may be said of the omission in the Bill, to provide, as its
predecessor of 1893 provided, for the maintenance of securities for the
liberty of the subject and the preservation of his common law rights. It
is almost impossible to do this without entering on an uncharted sea of
litigation. Modern legislation, especially social and industrial
legislation, infringes common law rights at every point. I have ventured
elsewhere(32) to describe the modern tendency of industrial legislation as
a tendency, inverting Maine’s famous aphorism, to advance from contract to
status, that is to say, to limit to an increasing extent the contractual
freedom of the worker, and to confer on him a certain status by the
protection of him against himself.(33) The greater part of our Irish land
legislation impaired the obligation of contracts. Professor Dicey
criticised the Bill of 1893 for not going further than it did in its
incorporation of clauses taken from the Constitution of the United States
with the intention of securing the common law rights of the subject. But
it may be remarked that many of those clauses have proved an almost
intolerable limitation upon the power of the legislatures to deal with the
regulation of trade and industry, so intolerable that the Supreme Court
has of late made a liberal use of the fiction of “the police power”(34) to
enable the legislatures to pass legislation which otherwise might have
seemed to “abridge the privileges” of citizens of the United States or
deprive them of “liberty or property without due process of law.”(35)
At the same time it must be remembered that, although the Irish Parliament
is not debarred from statutory interference with common law rights, its
legislation will be subject to rules of interpretation, at the hands of
the Judicial Committee, by which statutes are always construed in favour
of the subject. It is a well-accepted rule of construction in English
courts that common law rights cannot be taken away except by express
words.(36) It is something to secure that the interpretation of the new
Constitution and of Irish statutes shall, in the last resort, be wholly in
the hands of an Imperial Court. The chartered protection of the rights of
the individual by a fundamental Act is always difficult and often
impossible. In the last resort it depends very much on the interpretation
which the judges choose to place upon such an Act.(37)
The Executive Veto.
It is obvious, therefore, that the principal and indeed almost the only
safeguard provided in the Bill against inequitable or discriminating
legislation(38) is the veto of the Lord-Lieutenant acting on the
instructions of the Imperial Government. A political check is preferred to
a juristic check. The apostolic maxim “all things are lawful but all
things are not expedient,” appears to have been the motto of the
draughtsman. Not law but policy will decide what Irish Acts are to be
placed on the Statute-Book. It must be admitted that this is the principle
most in harmony with precedent if the constitutions granted to the
colonies are to be regarded as precedents. No colony would have tolerated
for a moment the elaborate network of restrictions in Clause 4 of the Bill
of 1893, through the finely-woven meshes of which it would have been hard
for any Irish legislation of an original or experimental character to
pass. If we are really in earnest about setting up a Parliament on College
Green, we cannot do otherwise. The executive veto must be the real check,
and in the presence of such a check, English judges would always be very
loath(39) to declare the Acts of a legislature _ultra vires_ merely
because they infringed common law rights.
Now this check may be exercised on one of two grounds. The Imperial
Government may “instruct” the Lord-Lieutenant to refuse his assent either
on the ground that the bill in question is politically objectionable, or
on the ground that it is, in their opinion, in excess of the powers
conferred on the Irish Legislature. It is desirable in every way that the
two should be distinguished in order that the Imperial Parliament may be
able to hold the Cabinet of the day responsible when its action is purely
a question of policy. On the other hand, it is no less desirable that the
Cabinet should, in the interests of the public in Ireland, be in a
position to test the validity of an Irish Bill which, though
unobjectionable on the ground of policy, may be questionable on the ground
of law. It is a common error that in all written constitutions the courts,
particularly those of the United States, have _proprio motu_ the power of
declaring _ultra vires_ any legislative act which infringes the principles
of the Constitution. Laboulaye fell into this error in his study of the
American Constitution. But the American Courts have no such power. Until a
case arises in the ordinary course of litigation, under the statute in
question, there is no means of annulling it, and there have been many
Acts(40) on the Federal Statute Book which are quite conceivably
“unconstitutional” in the letter as well as in the spirit, but have never
been declared _ultra vires_ for the simple reason that no one has found
his private rights affected. This holds particulars of questions of the
distribution of power. It might for example, occur in the case of an Irish
Bill which proposed to deal with one of the reserved services. To meet
this difficulty and to avoid the trouble which might arise from an Act
being placed in the Irish Statute Book(41) and observed in Ireland only to
be subsequently declared _ultra vires_ in the course of litigation, it is
provided in the Government of Ireland Bill(42) (Clause 29) that if it
appears to the Lord-Lieutenant or a Secretary of State expedient in the
public interest that the validity of an Irish Act should be tested he may
represent the same to His Majesty in Council and the question may then be
heard and determined by the Judicial Committee in the same manner as an
appeal from a Court in Ireland. It is not necessary to suppose that the
executive veto will be a dead letter, and to argue from its disuse in the
case of the self-governing colonies is to argue from the like to the
unlike. In the case of the provincial legislatures of Canada it has been
exercised by the Dominion Government where provincial legislation is
inequitable, or contrary to “the settled policy” of the Dominion.
Exempted Powers.
The enumeration of matters in respect of which the Irish Parliament shall
have no power to make laws is a little deceptive, inasmuch as many of the
matters so enumerated would have been outside its power in any case.
Ireland is not, so long as the Act of Union remains on the Statute Book, a
sovereign state, and “the making of peace or war” and the negotiation of
treaties would, as a matter of international law, have been impossible in
her case, even if they had not been expressly prohibited. “Merchant
shipping” and “the return of fugitive offenders” would also have been
excluded from her authority by the rule of law(43) which precludes a
subordinate legislature from extra-territorial legislation. The same may
be said of Copyright. The colonies have only been enabled to deal with
these matters in virtue of clauses in Acts of the Imperial Parliament.(44)
But it would not be true to say that the position of the Irish Parliament
is assimilated to that of the legislature of a self-governing colony. The
exclusion of subjects relating to allegiance, such as naturalization(45)
and treason,(46) and of legislation as to aliens is exceptional. All the
self-governing colonies have power to deal with these matters, as also
with the subject of naval and military forces. Perhaps the most important
exemption in the case of Ireland is that of trade, trade-marks, designs,
merchandise marks and patent rights. I cannot help regretting that,
inasmuch as the principle has been adopted of giving Ireland general and
unenumerated powers, the number of specific exemptions has not been
enlarged. It is highly desirable to avoid conflict of laws in the United
Kingdom as far as possible. It must be remembered that the Statute Book
has, quite apart from the Act of Union, bound Ireland to England by many
legislative ties; there is a uniform system of industrial, commercial,
and, to some extent, criminal law for the whole of these Islands—Factory
Acts, Companies Acts, the law of negotiable instruments, criminal
procedure, old-age pensions, and insurance legislation; in all these there
is legislative standardization, and the tendency of all modern political
unions, notably those of the Australian Commonwealth and the German
Empire, is in this direction. Confusion, injustice, and economic
inequalities constantly occur in a modern State whose inhabitants are
living under a “conflict of laws.” Fiscal considerations point the same
way. It may be safely assumed that English opinion will not tolerate any
considerable divergence between the fiscal systems of England and Ireland.
Moreover, financial considerations apart, the regulation of “trade” is, as
in every political union, reserved for the central legislature. But to
distinguish between “trade” on the one hand and “industry” on the other is
not an easy problem, and Ireland may discriminate against England only
less effectively by lowering the standard of the Factory Acts than by a
tariff.
The “subject matter” of the Old Age Pensions Acts, National Insurance
Acts, and Labour Exchanges Acts has, it is true, been excluded. It seems
regrettable that the category is not enlarged to include the Companies
Acts, the Sale of Goods Act, the Bills of Exchange Act, and the Factory
Acts. It would be highly undesirable to have the “industrial minimum” for
the United Kingdom, so laboriously attained by our factory legislation,
lowered in the interests of particular interests in Ireland. The
advantages of securing uniformity by the inclusion of the three great
statutes relating to commercial law is also very obvious. Two of them,
indeed, represent a great step in that codification of English law which
is the dream of English jurists, they have been adopted as a model in some
of our colonies, and it would seem highly desirable that the standard thus
attained should remain fixed. In urging this, I do not forget what I have
already said, in connection with the subject of constitutional
limitations, as to the undesirability of exacting too rigid a degree of
uniformity in English and Irish legislation, but constitutional
limitations are one thing and exceptions quite another. It is very
difficult to subject the whole field of Irish legislation to juristic
principles, but it is comparatively easy to exempt from that field the
subject matter of particular Acts. The whole question resolves itself into
a consideration of the point at which uniformity should be determined. The
Bill seems to fix the point much too low.
Of course, one way of dealing with the question would have been to grant
Ireland only particular and enumerated powers of legislation, as has been
done in the case of the provincial legislatures of Canada. There is much
to be said for this. It seems the line of least resistance; it is always
easier to add to powers which appear deficient than to withdraw powers
which have proved excessive. But it undoubtedly invites litigation and it
is very difficult, if not impossible, to define what are exclusively Irish
matters without in the last resort using some such general term (as is
used in the British North America Act) as “generally all matters of a
merely local nature.”
The great economy shown by the draughtsman in the number of the exceptions
from the powers of the Irish legislature, as well as in the number of the
restrictions upon the exercise of those powers, means, as we have already
indicated, that the whole weight of control over the Irish legislature is
thrown upon the executive and legislative veto of the Imperial Government.
Is it sufficient to rely upon the paramount power of the Imperial
Parliament to override by statute Irish legislation which may be
inequitable or inexpedient, and upon the exercise of the veto of the
Imperial Government? These checks are the exercise of a _force majeure_,
which is often invidious and always difficult. Above all they are
political. The exercise of them depends on the party in power in Great
Britain, and as such it may excite resentment among the Irish people as an
invasion of the autonomy granted to them. On the other hand, exceptions
and restrictions are a legal, not a political, check—they operate through
the agency of the courts of law without the intervention of political
considerations. Moreover—and this perhaps is the most important
consideration—they rest upon the consent of the Irish people expressed in
the terms of the Home Rule Act to which their representatives are a party.
For an Irish Parliament to defy them would be to defy the very Act which
was the charter of its existence. But they invite litigation. It all
resolves itself into a question of hitting the mean between the dangers of
litigation on the one hand and of political pressure on the other.
Probably, however, the occasions of conflict will be few and unimportant,
and the temper of the Irish Parliament may be much more conservative than
its critics imagine.
The Executive
The new Bill is remarkable for the explicitness with which it invests
Ireland with control over the Executive. For the first time in the written
constitutions of the Empire we have a statutory Executive, and not only is
it a statutory Executive, but it is to be a Parliamentary Executive
defined by statute. In the earlier Bills nothing was more remarkable than
the brevity and allusiveness with which this question of the Government of
Ireland was treated. “The Executive power in Ireland shall continue vested
in Her Majesty the Queen” was the language employed in the Bill of 1893.
Under that Bill the Government of Ireland would have continued, even after
its passage into law, to be in the hands of the English Cabinet and it
would have rested with that Cabinet to determine how large or how small a
part of the prerogatives of the Crown should be delegated to the
Lord-Lieutenant. Paradoxical as it may seem, it would have been quite
possible for a Unionist Government, coming into power immediately after
the Home Rule Bill had passed into law and an Irish Parliament had met at
Dublin, to retain in their own hands the Executive authority in Ireland
without any breach of statutory obligations. The Bills of 1886 and 1893
left it in the discretion of the Crown to decide what the powers of the
Lord-Lieutenant should be. Following Colonial precedents, the Constitution
would have had to be supplemented(47) by prerogative legislation in the
shape of Letters Patent defining those powers. Moreover, these powers were
to have been vested not in the Lord-Lieutenant in Council, but in the
Lord-Lieutenant alone. Something was indeed, said about an “Executive
Committee” of the Irish Privy Council to aid and advise in the Government
of Ireland—this was the only hint of responsible Government that the Bill
contained—but nothing was said of the powers or constitution of the
Committee nor of the extent to which the Lord-Lieutenant was bound to act
on its advice. Its constitution was left to the discretion of Her Majesty.
Its powers would, of course, as in the case of the Colonies, have been
decided by the tacit adoption of the unwritten conventions of the English
Constitution that the advisers of the Governor must command the confidence
of the Legislature which votes supplies.
Very different is our new Bill. The Executive power does indeed continue
“vested in His Majesty the King,” and nothing is to affect its exercise—in
other words, it is to continue in the hands of the Imperial
Government—_except_ “as respects Irish services as defined for the purpose
of this Act.” The exception is a new departure and the general effect of
the whole clause (Clause IV.) is expressly to hand over in statutory terms
“all public services in connection with the administration of the
Government of Ireland” except the reserved services and such services as
those in regard to which the Irish Parliament have no power to make laws.
The effect of this is to hand over an executive authority co-extensive
with the legislative authority.(48) Moreover, in regard to Irish services,
the Executive power is to be exercised by the Lord-Lieutenant _through_
Irish Departments, and the heads of these Departments are given the
Parliamentary title of “Ministers” and, what is more remarkable, it is
expressly provided (a provision to be found in only one or two, and those
the latest, of our Colonial Constitutions) that:
“No such person shall hold office as an Irish Minister for a
longer period than six months, unless he is or becomes a member of
one of the Houses of the Irish Parliament.”
Never in any constitution that emanated from the practised hand of the
Parliamentary draughtsman has there been such a complete transfer in
express statutory terms of the executive power. Taken together with the
comparatively unrestricted grant of legislative power, it constitutes a
grant of a larger measure of self-government than is to be found in any of
the earlier Bills.
At the same time there is here no cause for alarm. It must be remembered
that the Lord-Lieutenant will exist in a dual capacity—like a
constitutional king he will be bound in Irish matters to act on the advice
of his Irish Ministers but, like a Colonial governor, he will also in all
Imperial matters be bound to obey the instructions of the Imperial
Government. In regard to legislation the position here is quite clear: he
may veto measures which his own Ministers have promoted if the Imperial
Government think it advisable so to instruct him. In regard to the
executive, he will, of course, enjoy less latitude; it is quite clear that
the Imperial Government will, under this clause, find it practically
impossible to interfere in purely Irish administration. The Irish
Government will, of course, be carried on in the name of the Crown, and it
will enjoy the same prerogatives at common law as the Imperial Government
in such matters as the use of the prerogative writs _mandamus_ and
_certiorari_, and the immunity from actions in tort. Ireland has its own
Petitions of Right Act.
At the same time a distinction must be drawn between the prerogatives
relating to the exercise of Irish services and prerogatives which cannot
be so defined. Some of the latter may be delegated to the Lord-Lieutenant
by his patent, and these he will exercise not on the advice of the Irish,
but of the Imperial, Government. Moreover, there are certain powers
conferred by statute on the Lord-Lieutenant, or the Lord-Lieutenant in
Council, such as the power of proclaiming disaffected districts under the
Crimes Act, of suspending the operation of the Irish Habeas Corpus Act,
and of controlling the constabulary, not all(49) of which will be
exercisable on the advice of Irish Ministers. Prerogatives not so
exercisable will no doubt be exercised on the advice of the Secretary of
State for Home Affairs who is even now the medium of formal communications
between the Lord-Lieutenant and the Crown. The Chief Secretary(50) will,
of course, disappear altogether; he will be replaced by the Executive
Committee. The Lord-Lieutenant will, of course, cease to be a member of
the English Ministry; his position will be assimilated to that of a
Colonial Governor, and his tenure fixed for a term of years so as to make
his tenure of office independent, as it must be in the exercise of his new
constitutional duties, of the fortunes of English Parties.
The Irish Legislature
The constitution of the legislature itself calls for little comment. It
follows with some fidelity the features of Mr. Gladstone’s Bills, but the
substitution of a nominated Senate for the “Council” or “Order” elected on
a property franchise is a new departure. Nomination of late has fallen
into some discredit both in theory and in practice.(51) Colonial
experience is not encouraging. Nomination by the Crown means in practice
nomination by the Governor, on the advice of the Cabinet of the day, and
Ministries in Canada and New South Wales have put this prerogative to such
partizan uses as to reduce the Upper House to a very servile condition.
When nomination is for life and not for a fixed term of years the evils of
this system may be mitigated, but they are not removed. The one thing that
can be said about the proposed Senate is that its powers in legislation
are of such a limited character that an Irish Executive would be under
little temptation to “pack” it. A Senate of only forty members compelled
to meet in joint session a House of Commons of 164 members every second
time that it rejects or objectionably amends a bill is not likely to prove
a very formidable obstacle to legislation. But the nomination by the
Executive is in any case somewhat objectionable, and it would seem better
to provide that at the end of the first term of eight years the Senators
should be appointed by some system of election, whether on a basis of
proportional representation or otherwise.(52) But to their nomination for
the first term by the Imperial Government I see no very cogent objection.
Indeed, the expedient has much to be said for it, for the discretion, if
wisely exercised, will enable the Imperial Government not only to secure
to Irish minorities a degree of representation which no conceivable system
of election could secure, but also to appoint men of moderate opinions—one
immediately thinks of Sir Horace Plunkett—who, in the strife of
extremists, might have no chance of election by either party. It has been
argued in some quarters that a Second Chamber is wholly unnecessary, and
the example of the single-chamber legislatures in some of the Canadian
provinces has been cited. The argument, however, overlooks one really
important function of the Senate, namely its duty to provide for the
security of tenure of the Irish judges. Clause XXVII. provides that judges
appointed after the passing of the Act shall only be removable on an
Address of both Houses of the Irish Parliament, and, should the Senate
refuse to concur in a demand by the lower House for the removal of a
judge, there is no such means of overcoming its resistance in a joint
session as is the case with legislation. This is well.
There is one provision in the Bill(53) which will serve to strengthen the
position of the Senate as an advisory body and may operate to give it an
initiative in the introduction of Government legislation—the provision
which enables an Irish Minister who is a member of either House to sit and
to speak in both Houses. This is a practice common on the Continent, and
not wholly unknown in the case of some of our Colonial Constitutions, and
it has much to commend it. The Senate is placed under the same
disabilities as to money bills as are imposed on the House of Lords by the
Parliament Act. Thereby it is placed in an inferior position to that of
most of the Second Chambers in the Colonies, all of which can reject, and
some of which may also amend, money bills. The disability is the less
surprising having regard to its character as a nominee body—it is when the
Second Chambers of the Colonies are elective, that their powers in regard
to money bills are considerable.(54)
The privileges of the Imperial Parliament are conferred by the Government
of Ireland Bill upon the Irish Parliament. In the absence of such grant
the Irish Parliament would not have had such privileges—although it might
have adopted them by legislation—for the _lex et consuetudo Parliamenti_
are not implied in the grant of a constitution.(55) It is not uncommon to
prescribe in Colonial Constitutions that the legislature shall have such
privileges as are enjoyed by the House of Commons at the time of grant. In
the present case, the Irish Parliament may define its privileges, if it
thinks fit, by legislation, though it is difficult to imagine any occasion
for its doing so. The really important thing is that it cannot enlarge
those privileges beyond the scope of the privileges of the Imperial
Parliament. This is the one constitutional limitation in the Bill—apart
from the “safeguards” as to legislation in regard to religion and marriage
contained in Clause III.—and it is by no means unimportant. The powers of
the Imperial Parliament—particularly as to the right of the two Houses to
commit for contempt without cause shewn—are a sufficiently high standard.
Irish Representation in the House of Commons(56)
Irish representation at Westminster has always been the riddle of the Home
Rule problem. I have no space to examine here in detail the alternative
solutions which were put forward in the earlier Home Rule Bills. But there
is one general consideration which must always be borne in mind in the
theoretical discussion of any solution. It is the very simple
consideration that representation is what mathematicians would call a
“function” of legislative power—the one is dependent upon the other. If
the legislative powers over Ireland reserved to the Imperial Parliament
are large, the representation of Ireland in that Parliament must not be
small. It is at this point that Mr. Gladstone’s original proposal for
total exclusion broke down. He reserved to the Imperial Parliament
considerable powers of legislation in regard to Ireland and yet proposed
to exercise those powers in the absence of Irish representatives.
It was no answer to cite colonial analogies. The Irish problem is not, as
I have pointed out elsewhere, a colonial problem. No one at present
proposes to give Ireland complete fiscal autonomy, for example. Nor is it
strictly apposite to say that the Imperial Parliament legislates for the
Colonies in the absence of colonial representatives. Such legislation is
now almost exclusively confined to what I may call enabling legislation in
matters in which the Colonies, owing to their status as Dependencies, are
unable to legislate. In such matters as copyright, merchant shipping,
marriage, extradition, the Imperial Parliament legislates for the Colonies
largely because colonial laws cannot operate ex-territorially, and such
Imperial legislation is usually effected by means of application clauses
which enable the Colonies to adopt it or not as they please. But rarely if
ever does the Imperial Parliament legislate for a self-governing colony as
it has done and will continue to do in the case of such domestic Irish
affairs as old-age pensions, land purchase, Customs and Excise, defence,
naturalisation, to say nothing perhaps of industrial and commercial law. I
have already indicated my opinion in favour of confining these subjects to
the Imperial Parliament, but even were the opposite course taken there
would still remain the fiscal question. We cannot continue to tax Ireland
unless the Irish representatives are to remain at Westminster.
The presence of the Irish members at Westminster is imperative if the
supremacy of the Imperial Parliament is not to be illusory. Mr.
Balfour(57) contends that it will be as illusory as it has been in the
case of the Colonies. But the Colonies are not represented in the Imperial
Parliament, and to differentiate Ireland in this respect is to make all
the difference between a legal formula and a political fact.
There remains the question of inclusion. No one would question the
propriety of reducing Irish representation to its true proportions on a
population basis—in other words, from its present figure of 103 to one of
70. The real difficulty arises when we consider whether those members,
whatever their numbers, are to attend at Westminster in the same capacity
as the British members. We are to-day confronted by the same problem as
that which vexed the Parliament of 1893: are Irish members to vote upon
all occasions or only upon those occasions when exclusively Irish and
exclusively Imperial affairs are under discussion? The original text of
the 1893 Bill adopted the latter solution. At first it has much to commend
it, for it avoids—or attempts to avoid—the anomaly of refusing
self-government to Great Britain while granting it to Ireland: if Irish
members are to govern themselves at Dublin without the interference of
Englishmen, why, it has been pertinently asked, should not the converse
hold good at Westminster? But two very grave difficulties stand in the
way; one is the difficulty of distinguishing between Irish and non-Irish
business at Westminster; the other is the difficulty, even when such
distinction is made, of maintaining a single majority under such
circumstances. Withdraw the Irish members on certain occasions and you
might convert a Liberal majority at Westminster on certain days into a
Unionist majority on other days. A Liberal Government might have
responsibility without power in British matters and a Unionist Opposition
power without responsibility. One Executive could not co-exist with two
majorities. Such a state of affairs might have been conceivable some
seventy or eighty years ago, when Ministries were not regarded as
responsible for the passage of legislation into law. It would be
conceivable in France, where Ministries come and go and the Deputies
remain. But it would be fatal to the Cabinet system as we know it.
Another objection to the “in-and-out” plan is the extreme difficulty of
classifying the business of the House of Commons in such a way as to
distinguish between what is “Irish” and what is not. If that business were
purely legislative the difficulty would not be so great, but the House
controls administration as well as legislation. Any question involving a
vote of confidence in the Cabinet might legitimately be regarded as a
matter in which the Irish members had a right to have a voice. The motion
for the adjournment of the House, following on an unsatisfactory answer by
a Minister, might be regarded as such. Who would decide these things? The
Bill of 1893 provided for their determination by the House. In that event
the Irish members would presumably have had a voice in determining on what
subjects they should or should not vote, and they would have been masters
of the situation under all circumstances. By their power to determine the
fate of Imperial Ministries they might have determined the exercise of the
Imperial veto on Irish legislation and reduced it to a nullity. It may,
indeed, be urged that the Irish vote often dominates the situation at
Westminster even under present circumstances, but it must be remembered
that it is now exercised in the consistent support of the same
administration, whereas under an “in-and-out” system its action might be
capricious and apt to be determined solely by Irish exigencies of the
moment.
There remains the plan of the inclusion of Irish members for all purposes.
This at least has the advantage of simplicity. If Irishmen constantly
attended at Westminster without distinction of voting capacity they would
be less likely to regard their presence there as an instrument for
reducing to impotence the exercise of the Imperial veto upon Irish
legislation. It is quite conceivable, indeed, that once Home Rule is
granted Irishmen will be Imperialists at Westminster without becoming
Nationalists at Dublin—the natural conservatism of the Irish character may
reassert itself. Close observers of Irish thought are inclined to believe
that the grant of Home Rule will act as a great solvent in Irish political
life, and that with the iron discipline of Nationalism relaxed, and its
cherished object attained, lines of cleavage, social, economic, and
industrial, will appear in Ireland and vastly change the distribution of
Irish parties both at Dublin and at Westminster. Ulster “Unionists” may be
found voting with a Liberal Government on education questions and Irish
“Nationalists” against it. Irish representatives at Westminster may become
more, rather than less, closely identified with British interests. And it
should be remembered that it would be no new thing for members from one
part of the United Kingdom to be voting on measures which solely concerned
another part of the Kingdom. This is happening every day. As Mr. Walker
points out elsewhere, a process of legislative disintegration has been
going on within the walls of the Imperial Parliament itself, which is
already being forced to legislate separately for the three separate parts
of the United Kingdom. He estimates that during the last twenty years no
less than 49.7 per cent. of the public general Acts have applied only to
some one part of the United Kingdom instead of to the whole.
The Government of Ireland Bill adopts the principle of total inclusion,
but qualifies the anomaly which is involved in the presence of Irish
members voting on non-Irish questions by reducing the representation of
Ireland to the number of forty-two, and thus to a figure far below that to
which Ireland is entitled on the basis of population. At the same time it
must be admitted that the anomaly is not thereby removed. The position of
Irish members voting on purely English legislation after the grant of Home
Rule will indeed—numbers apart—be more anomalous than it was before it. An
anomaly can be tolerated so long as it is universal in its operation, and
Scotch and English members can at present view with equanimity the
spectacle of Irish members voting in their own affairs so long as they
themselves exercise the same privilege in those of their neighbours.
Reciprocity of this kind produces a certain unity of thought in a
deliberative assembly. But the anomaly at once becomes invidious if
Irishmen are placed in a privileged position. It is perhaps more
theoretical than real, as the actual weight that could be thrown into the
scale of the division lobby by a Nationalist majority (taking the present
balance of parties in Ireland) of about twenty-six cannot be considerable,
even if, as is very doubtful, it were consistently exercised.
Still the anomaly remains. Is it possible to meet it by some extension of
Home Rule to the legislative affairs of England and Scotland?
The Further Extension of Home Rule
The anomaly, however, remains. How is it to be met? Obviously it is but a
temporary difficulty if, as the Prime Minister has suggested in his speech
on the first reading, the Bill is to be regarded as but the first step in
a general devolution of the legislative powers of the Imperial Parliament.
But everything depends on how far that devolution is to be carried. The
Prime Minister’s reference to a change in the Standing Orders suggests a
further development of the Committee system already in operation in the
case of the Scottish Standing Committee by which the House has delegated a
certain degree of provincial autonomy to a group of members. It would be
possible to extend this to the creation of a Standing Committee for
England and Wales. Under such a system Irish Members would be excluded
from the Committee stages of legislation which was neither Irish nor
Imperial. But there remains the Report stage, which is always apt to
resolve itself into a Second Committee stage(58) in which the whole House
participates. Moreover, an impassable limit is set to this process of
domestic devolution by the necessity that the Government of to-day should
command a majority in each of these Committees. A Liberal Ministry would
probably find itself in a minority in an English Standing Committee, and a
Unionist Ministry would, with equal probability, find itself in a minority
in a Scottish Committee. Committees have become not so much a sphere for
the legislative initiative of the private member as a new outlet for
Government business. Contentious bills introduced or adopted by the
Government are referred to them, and the moment this is the case the
Minister in charge who is confronted in Committee with amendments which he
does not care to accept may invite the whole House on the Report stage of
the Bill to disallow them. The House itself, jealous of any surrender of
its prerogatives, is only too apt to turn the Report stage into a second
Committee stage. The responsibility of a Government department for the
preparation and execution of legislation is to-day so indispensable that
effective legislative devolution is almost impossible without devolution
of the executive also. A Committee to which the Minister in charge of the
Bill is not responsible is not in a position to exercise effectual control
over legislation. Indeed it seems impossible to contemplate a devolution
of legislative power without a corresponding devolution of executive
power. So long as we have but one Executive in the House of Commons it is
impossible to have two or three legislatures within the walls of that
House. Moreover, it is just as imperative to restore the diminishing
control of members of Parliament over administration as it is to
re-establish their authority in legislation. There is a growing and
regrettable tendency to confer upon Government departments both
legislative and judicial powers—powers to make statutory orders and to
interpret them, which is depriving our constitution of what has hitherto
been regarded by foreign students as one of its most distinctive
features—the subordination of the executive to the legislature and to the
courts. The distinction between Gesetz und Verordnung,(59) between statute
and order, is fast disappearing in the enormous volume of statutory
orders. Powers to make rules under particular statutes are entrusted to
Scotch, Irish, and English Departments which have the effect of
diminishing the control of the House of Commons without transferring it to
any representative substitute. The great increase of grants-in-aid for
administrative purposes has also given the departments a power of indirect
legislation by the latitude they enjoy in the distribution of them such as
is further calculated to diminish the control of the House of Commons over
questions of Irish and Scotch policy. Rarely do any marked departures by
the departments come under the review of the House of Commons; the claims
of the Government over the time-table of the House, fortified by certain
rulings of the Speaker,(60) may and frequently do preclude any examination
of them. In the words of a famous resolution, one may say “the power of
the Executive has increased, is increasing, and ought to be diminished.”
But it is no remedy for this state of things to provide for administrative
devolution alone. To devolve the authority which a great Department of
State, such as the Board of Agriculture, exercises over the whole of Great
Britain by the simple process of assigning its Scotch business to the
Secretary for Scotland, does not increase the control of Scottish members
over the executive. This process of administrative devolution, which is
always going on, is not accompanied by any measure of legislative
devolution; the Secretary for Scotland is not thereby brought under the
control of the Scotch Standing Committee.
To create a new Scottish or Irish Department does not increase
Parliamentary control over Scottish or Irish administration; rather it
diminishes it. The heads of a Scottish Education Office, Local Government
Board, and Department of Agriculture have been made responsible not to the
House of Commons but to the Secretary for Scotland. Like the Chief
Secretary for Ireland, he is a Prime Minister without a Cabinet and
without a Legislature, and his policy is determined primarily not by
Scottish or Irish opinion, but by the alien issues of imperial politics.
Obviously there will never be any remedy for these anomalies until we have
a Legislature with an executive responsible to it.
Scottish Home Rule
At the present moment we have in the case of Scotland devolution in a
state of arrested development. This process of disintegration is reflected
in separate Estimates in finance and in distinct draftsmanship in
legislation. In legislation, indeed, marked changes have also taken place
under cover of alterations in the Standing Orders of the House of Commons.
An itinerant delegation of Scotch members has been set up to deal with
private bill procedure in Scotland, and domestic devolution within the
walls of the House of Commons has taken the shape of a Scotch Grand
Committee. Few or none of these changes have any preconceived relation
with the others; they represent experiments framed to meet the exigencies
of the moment, but they all bear eloquent witness to a fact which has
changed the whole aspect of the Home Rule problem and made that aspect at
once more practical and less intimidating—the fact that the House of
Commons has found itself increasingly incompetent to do its work. The fact
is disguised by a multitude of expedients, all of them, however, amounting
to a renunciation of legislative authority. These changes represent the
_disjecta membra_ of Scottish Home Rule—they have no coherence, they point
not so much to a solution of the problem as to its recognition.
None the less, I think the Irish Government Bill does provide us with a
prototype. There is nothing in it, with the exception of the financial
clauses, which forbids its adoption in the case of Scotland and of
England. But I think, as I have already indicated in another connection,
that the category of reserved subjects ought to be considerably enlarged
so as to secure the maintenance of the existing uniformity of legislation
in commercial and industrial matters. There are, however, undeniable
difficulties in the way of an identity of local constitutions. Legislation
in regard to land is exempted from the control of the Irish Legislature to
an extent which Scotland would hardly be prepared to accept. Control over
legislation relating to marriage is retained in the case of Ireland; I
doubt if it would be tolerated in Scotland, whose marriage law differs(61)
from that of England to a far greater extent than is the case with the
marriage law of Ireland. In common law England and Ireland have the same
rules;(62) it is only in statute law that they differ. In Scotland the
common law is radically different. There will, therefore, be some
difficulty in finding a common denominator for the Imperial Parliament—and
in avoiding, even under “Home Rule All Round” a certain divergence in the
legislative capacities of the members from Scotland and Ireland, with the
attendant risk of an “in-and-out” procedure.
II.—Irish Administration Under Home Rule. BY LORD MACDONNELL OF SWINFORD
[The following article was, at my request, written by Lord
MacDonnell before he became acquainted with the provisions of the
Home Rule Bill. We agree in thinking it desirable that the article
should appear without alteration as an expression of the views
which Lord MacDonnell had formed on the subject.—THE EDITOR.]
I am asked to state my opinion as to the changes of Administrative
Direction and Control which should be introduced into the system of Irish
Government in the event of a Home Rule Bill becoming law.
As I write (in March) I am not acquainted with the provisions of the
promised Bill and my conjectures in regard to them may, in some respects
at all events, fall wide of the mark. But there are cardinal principles
which, presumably, must govern the Bill, and lend to conjecture some
approximate degree of accuracy. Among such principles are the
establishment of a representative assembly (Mr. Birrell has told us there
will be two Houses), with powers of legislation and of control over the
finances allocated to Ireland; the maintenance of the supremacy of the
Imperial Parliament; and the preservation of the executive authority of
the King in Ireland.
Assuming then that the Bill will, in essence, be a measure of devolution
under which the supremacy of the Imperial Parliament will be preserved,
the Executive Power in Ireland will continue vested in the King (as under
the Bills of 1886 and 1893) and a representative body controlling the
Finances (and consequently the Executive) will be established, an
intelligent anticipation may be made of the organic changes in the
existing system of Irish Government which are likely to be required when
the Bill becomes law.
I do not propose to push this anticipation into regions beyond those of
constitutional or organic change. It may happen that re-arrangements of
the Civil Service in Ireland, Inter-Departmental Transfers of the
Executive Staffs, and reductions of redundant establishments, may ensue on
the creation of the Irish Legislature.(63) But these changes, if they take
place, will not be organic or constitutional changes; nor could
anticipations in respect of them be now worked out with due regard to
vested rights or economical administration. If not so worked out, such
anticipations would be either valueless or harmful.
I shall therefore not attempt on this occasion to allocate establishments,
or to suggest scales of pay, for the departments of the future Irish
Government which I shall suggest in the following paragraphs. But I shall,
as opportunity offers, point to such retrenchments of higher
administrative posts as appear to follow from the organic changes I shall
indicate as necessary.
The dominating constitutional change will, of course, be the establishment
of a Parliament which, operating through a Ministry responsible to it,
will control and direct the various departments engaged in the transaction
of public business. It is unnecessary to consider here how that Parliament
will be recruited, though I may express my conviction that justice to
minorities, the mitigation of political mistrust, and the promotion of
efficiency in the Public Services, urgently require the recruitment to be
on the system of proportional representation. But I assume that when
recruited, the Parliament’s general procedure will be fashioned on the
model of the Imperial Parliament at Westminster. To that end the first
thing the new Parliament will have to do is to create its own
establishment of officers and clerks, to frame its Standing Orders
relating to the conduct of public business, and to settle any subsidiary
rules that the Westminster precedents may suggest.
Having thus provided itself with the requisite machinery for the exercise
of its powers, the Irish Parliament would naturally next proceed to bring
under its supervision the various existing agencies for the direction and
control of the public business of the country.
At present the business of Civil Government in Ireland is carried on
through the following forty-seven Departments, Boards, and Offices, which
I group with reference to the degree of control exercised over them by the
Irish Government at the present time.
DEPARTMENTS, ETC., UNDER THE CONTROL OF THE IRISH GOVERNMENT.
(1) Royal Irish Constabulary.
(2) Dublin Metropolitan Police.
(3) Prisons Board.
(4) Reformatory and Industrial School Office.
(5) Inspectors of Lunatics.
(6) General Registry of Vital Statistics.
(7) Registry of Petty Sessions Clerks.
(8) Resident Magistrates.(64)
(9) Crown Solicitors.
(10) Clerks of Crown and Peace.
(11) Office of Arms (Ulster King of Arms).
DEPARTMENTS, ETC., UNDER THE PARTIAL CONTROL OF THE IRISH GOVERNMENT.
(1) Land Commission.
(2) Commissioners of charitable donations and bequests.
(3) Public Record Office.
DEPARTMENTS, ETC., NOT UNDER CONTROL OF THE IRISH GOVERNMENT, BUT HAVING
THE CHIEF SECRETARY AS EX OFFICIO PRESIDENT.
(1) Local Government Board.
(2) Department of Agriculture and Technical Instruction.
DEPARTMENTS, ETC., NOT UNDER THE CONTROL OF THE IRISH GOVERNMENT EXCEPT AS
REGARDS APPOINTMENTS AND, IN SOME INSTANCES, THE FRAMING OF RULES OF
BUSINESS.
(1) Board of National Education.
(2) Board of Intermediate Education.
(3) Commissioners of Education. (Endowed Schools).
(4) National Gallery.
(5) Royal Hibernian Academy.
(6) Congested Districts Board.
BOARDS EXERCISING STATUTORY POWERS IN IRELAND BUT NOT UNDER CONTROL OF THE
IRISH GOVERNMENT.
(1) Public Loan Fund.
(2) Commissioners of Irish Lights.
(3) Queen’s University, Belfast.
(4) National University.
DEPARTMENTS, ETC., NOT CONTROLLED BY THE IRISH GOVERNMENT.
(1) The Judiciary.
(_a_) The Supreme Court of Judicature and its officers.
(_b_) Recorders.(65)
(_c_) County Court Judges.
(2) Registry of Deeds.
(3) Local Registration of Titles.
(4) Railway and Canal Commission.
(5) Commissioners of Public Works.
(6) General Valuation and Boundary Survey of Ireland.
(7) Treasury Remembrancer’s Office.
(8) National School Teachers’ Superannuation Office.
ENGLISH CIVIL DEPARTMENTS WORKING IN IRELAND AND NOT UNDER THE CONTROL OF
THE IRISH GOVERNMENT.
(1) Customs.
(2) Inland Revenue.
(3) General Post Office.
(4) Board of Trade (Dublin and other Ports).
(5) Quit Rent Office (Woods and Forests).
(6) His Majesty’s Stationery Office.
(7) Civil Service Commissioners.
(8) Inspector of Mines.
(9) Inspector of Factories.
(10) Registrar of Friendly Societies and Trades Unions, Building and
Co-operative Societies.
(11) Ordnance Survey of Ireland.
(12) Public Works Loan Commissioners.
(13) Exchequer and Audit Department.
It is thus apparent that at present the Irish Government exercises control
over only a small portion of the official agencies working in the country.
Many of these agencies—some of first-class importance and dealing with
strictly Irish business—are uncontrolled by the Irish Government, while
the supervision exercised over them by the Imperial Parliament is of the
most shadowy character. The congestion of public business in Westminster
effectually prevents attention being paid to any Irish business—at least
to any Irish business out of which party capital cannot be made.
In these circumstances, the first duty of the new Parliament will be to
co-ordinate, and establish its control over, the _dísjecta membra_ of
Irish Government. To that end it will, presumably, group into classes or
departments the various “Boards,” “Offices,” and other official agencies
enumerated above on the principle of common or cognate functions. Such a
classification is an essential preliminary to the establishment of
effectual Parliamentary control over the transaction of public business. I
proceed to suggest such a scheme of classification, but a preliminary word
is necessary.
Some controversy has taken place as to what is, and what is not, business
of a “purely Irish nature,” with which alone, the Irish Government is to
be concerned under the promised Bill. In my opinion, the following
Departments, out of those enumerated above, namely:
(1) Customs,
(2) Excise,
(3) Post Office, Telegraphs, etc.,
(4) Treasury Remembrancer’s Office,
(5) Civil Service Commissioners,
(6) Exchequer and Audit Office, and
(7) Public Works Loan Commissioners,
can not be so classed, for the following reasons.
The control of the levy of Customs and Excise Revenue by the Irish
Legislature, would imperil the fiscal solidarity of the United Kingdom,
and be destructive of the further extension of Home Rule on federal lines.
The Imperial Parliament should continue to control these all-important
Departments, but power may be usefully reserved to the Irish Legislature
to vary, under certain defined conditions, the duties on particular
articles or commodities, without, however, any reservation of power to
vary the articles themselves. For such a reservation, there is a precedent
in the Isle of Man (Customs) Act of 1887, as I explained in an address
delivered before the Irish Bankers’ Institute last November. The
suggestion was further developed in an Article on Irish Finance, which I
contributed to the _Nineteenth Century and After_ for January, 1912. In
this connexion, it should be remembered that Mr. Gladstone’s Bills of 1866
and 1893, excluded the Customs and Excise Revenue from Irish Control: and
that the present Leader of the Irish Parliamentary Party, following, in
this respect, Mr. Parnell’s example, has recognized the propriety of the
exclusion.
The suggestion I make preserves the principle, thus confirmed by high
authority, while it allows to Ireland, working in concert with Great
Britain, the opportunity of adjusting her taxation to her own special
necessities.
The Administration of Posts and Telegraphs in Ireland is intimately
associated with the Department’s Administration in Great Britain; and
though Ireland has an indefeasible claim, which can be readily conceded,
to the great bulk of the patronage within her shores, (patronage mostly of
a petty and purely local character) I fail to see in that claim sufficient
justification for localizing the Irish part of the business and thereby
incurring the risk of dislocating the working of a great Imperial
Department. And my objection to transferring the Postal Department to the
new Government is emphasised by the fact that in Ireland this Department
is worked at a loss of about a quarter of a million sterling annually.
There would, therefore, be a tendency on the part of the new Irish
Government to curtail expenditure on the Post Office, to the detriment of
the public convenience of the United Kingdom, in order that the
expenditure on the Department should balance the income.
The Treasury Remembrancer’s Office will probably disappear with the system
of which it is the symbol: but the Civil Service Commission calls for
further consideration. As I am, at present, Chairman of the Royal
Commission on the Civil Service, I feel myself precluded from writing on
this important matter with complete freedom; but this much I may say—in
recruiting her Civil Service Ireland will be well advised to follow the
same general system of appointment, promotion, and conditions of service
as prevail in Great Britain, (though this uniformity need not be taken to
apply to scales of emolument). The enforcement of this principle will not
militate against the establishment by the Irish Parliament, if so advised,
of an Irish Civil Service as distinguished from the service which now
exists for the United Kingdom as a whole. But I earnestly trust that if a
separate Irish Civil Service be established there will be no limitation of
candidature to Irish-born subjects of the Crown. Ireland would, in my
opinion, commit a fatal mistake—fatal in more ways than one—if she imposed
any impediment to the free competition by British-born subjects for
appointments in the Irish Service, should one be created. She will gain
far more than she will lose from reciprocity in this connection.
Assuming for the purpose in hand that the present general policy of
recruitment for the Civil Service will continue, the question arises
whether there should be an independent Civil Service Commission
established in Dublin: or whether the Irish Government should ask the
Burlington Gardens Commission to hold examinations in Ireland for the
Irish service, associating with themselves some distinguished Irish
educationalists. Personally I am strongly in favour of the latter
alternative, on the ground of economy; and because of the advantage of
using experienced British agencies for common purposes. Good feeling and
mutual understanding will be thereby promoted.
Turning to the remaining Imperial Departments, I think the Exchequer and
Audit Office should relinquish its Irish functions to a similar office
restricted in its operations to Irish finances only(66); while the Public
Works Loans Commissioners would probably cease to do business in
Ireland.(67) Loans to municipalities and other public bodies in Ireland
would, under the new dispensation, be probably made by the Irish Treasury
acting on the advice of the Irish Board of Works.
I had, at first, thought of adding the Department of “Woods and Forests”
(Quit Rents) to the list of excluded Departments, but I trust that,
following the treatment proposed in Clause 24 of the Bill of 1893, this
source of income may be made over to the Irish Parliament. If not, the
Department should swell the list of exclusions. In the same way I had at
first intended including the Land Commission in the excluded list, because
of the imperative necessity which exists of retaining the Finance and
Administration of Land Purchase under the control of the Imperial
Treasury. I need not labour this point; all intelligent persons are agreed
that the use of British Credit is essential to the furtherance of Irish
Land Purchase, that Ireland, of herself, could not finance her great Land
Purchase undertaking, because the cost would be prohibitive and would
bring to an end that great scheme on whose successful accomplishment the
peace and prosperity of Ireland so greatly depend. If the Government
decides to exclude the Land Commission permanently from the control of the
Irish Legislature no Irishman need object; but, for reasons to be stated
in the sequel, I am disposed to think that the Land Commission might be
better placed in a temporarily reserved, than in a permanently excluded,
list.
With these exceptions I think that all the other public Departments and
Offices enumerated may be regarded as dealing with business of a purely
Irish character, the administration of which may be localized to Ireland.
All of them, with the important addition of “Finance” and of certain other
minor subjects which are known officially as “Votes,” I would group into
Departments of Government in the following way, premising that I do not
pretend to give an exhaustive list of “sub-heads,” which, indeed, must
vary with changing circumstances and the growth of work. As I have said,
the object of this grouping or classification is to facilitate the
introduction of parliamentary control over every branch or kind of public
business in Ireland.
SUGGESTED SCHEME OF ADMINISTRATIVE DEPARTMENTS OF THE REFORMED IRISH
GOVERNMENT.
_Group I.—The Treasury._
(1) General Finance.
(_a_) Taxation, Bills before the Legislature.
(_b_) Budgets, Recoverable Loans, Local Taxation Account.
(_c_) Courts of Law, Legal Establishments, Legal Business.
(_d_) Other Civil Departments, Pensions, Valuation and Boundary
Surveys.
(_e_) Trade and Commerce.
(_f_) Exchequer and Audit.
(2) Local Finance.
(_a_) Municipalities, Urban Councils.
(_b_) County and Rural Councils.
(3) Registry, Receipt and Issue of Letters.
_Group II.—Law and Justice._
(1) Supreme Court of Justice and its Officers.
(2) Recorders.
(3) County Court Judges.
(4) Resident Magistrates.
(5) Crown Business.
(_a_) General.
(_b_) Law Officers.
(_c_) Crown Prosecutors, Crown Solicitors.
(_d_) Petty Sessions Clerks.
(6) Police.
(_a_) Royal Irish Constabulary.
(_b_) Dublin Metropolitan Police.
(7) Prisons, Reformatories, Criminal Lunatics.
(8) Miscellaneous.
(9) Registry, Receipt and Issue of Letters.
_Group III.—Education, Science and Art._
(1) Primary.
(2) Secondary.
(3) University.
(4) Technical.
(5) College of Science.
(6) National Gallery, Public Libraries, Museums.
(7) Registry, etc., of Letters.
_Group IV.—Local Government._
(1) Rural.
(2) Urban.
(3) Sanitation.
(4) Medical Relief, Hospitals.
(5) Poor Law Relief, Orphanages and Asylums.
(6) Crop Failure, Famine Relief.
(7) Labour questions, Housing of the working-classes.
(8) Audit of Local Accounts.
(9) Registry, etc., of Letters.
_Group V.—Public Works._
(1) Roads and Buildings.
(2) Railways and Canals.
(3) Marine Works.
(4) Drainage, Irrigation and Reclamation.
(5) Mines and Minerals.
(6) Registry of Letters.
_Group VI.—Agriculture._
(1) General.
(2) Relief of Agricultural Congestion. (Congested Districts Board).
(3) Land Improvement, Seeds, Manures, Agricultural Implements, etc.
(4) Improvement in the breed of Horses, Cattle, etc.
(5) Diseases of Animals and Plants.
(6) Agricultural Schools, Experimental and Demonstration Farms, etc.
(7) Arboriculture, Afforestation.
(8) Registry of Letters.
_Group VII.—The Land Commission._
(1) Land Purchase.
(2) Relief of Congestion.
(3) Recovery of Annuities and Sinking Fund.
(4) Fixation of Judicial Rents.
(5) Registry, etc., of Letters.
_Group VIII.—Registration._
(1) General and Vital Statistics.
(2) Deeds.
(3) Titles.
(4) General Records.
(5) Friendly Societies.
(6) Registry of Receipts and Issue of Letters.
_Group IX.—General Purposes._
(1) Sea and Inland Fisheries.
(2) Labour Questions, other than Housing.
(3) Scientific Investigations.
(4) Thrift and Credit Societies; Agricultural Banks.
(5) Quit Rents.(68) (Woods and Forests).
(6) Temporary Commissions of Enquiry.
(7) Stationery.
(8) Office of Arms.(69)
Before proceeding to discuss the method by which the control of the
Legislature may be most easily and effectively established over these
various departments, I wish to consider whether any of them should be
_temporarily_ reserved from that control. There is undoubtedly, a strong
feeling among Irish Unionists, and among many moderate Nationalists, that,
if Home Rule does come, Judicial Patronage, and the control over the
Police, should be in the beginning reserved or excepted from the general
transfer of control to the new Government which would take place when the
Bill becomes law. On the other hand, the Nationalist Party are, I
understand, anxious that there should be no delay in transferring the
judicial patronage. They have been dissatisfied with the exercise of
judicial patronage in the past: and they wish for a distribution more to
their liking in the immediate future.
I have myself no fear that judicial patronage will be misused to the
detriment of any party by the Irish Government of the future; but Irish
Unionists are apprehensive on the point; and in my opinion something
should be done to allay their fears. If the Bill should contain provisions
similar to Clause 19 of the Bill of 1893, which maintained in the Irish
Supreme Court two judges with salaries charged on the Consolidated Fund of
the United Kingdom, appointed by the King in Council, and removable only
by his Order, the Unionist apprehensions might be, to some extent at all
events, removed. But as the Financial Provisions of the coming Bill will
probably be different from those of the Bill of 1893, a clause like Clause
19 of that Bill may not be inserted.(70)
In that case, I think it would tend to the establishment of general
confidence if the patronage in connexion with judicial appointments were,
during the transition period, reserved and administered, as at present, by
the Lord-Lieutenant. I think it would be good policy to abstain from every
transfer of authority from the Lord-Lieutenant to which the Irish minority
may at the outset reasonably object. There must be a period of
transition—be it seven years or ten years or even longer—during which the
minority will be suspicious of such change as I am now concerned with. I
would let these suspicions wear themselves out, as in time they are sure
to do with the growth of further knowledge and of that saner outlook on
Imperial and Irish affairs, which collaboration towards common objects
brings with it. It seems to me that in the reassurance of opponents and
hesitating well-wishers, and even in the immunity, for a time, from the
pressure and annoyances of this class of patronage, the new Irish
Government may well find, in its infancy, satisfaction for the temporary
withholding of a part of its prerogatives. It might be an instruction to
the Lord-Lieutenant, that, during the transition period, (which need not
be long) the wishes of the Irish ministry, in regard to appointments to
judicial vacancies, should be ascertained and fully considered before the
vacancies are filled.
But if this view cannot prevail then I suggest that during the transition
period the patronage in connexion with the Supreme Court should, at all
events, be reserved. It is highly desirable that the apprehensions of the
Irish Unionists should be allayed in every practicable way.
Advantage should, I think, be taken of this opportunity to remove the
Irish Chancellorship from the list of political appointments. Whatever
strong reasons or justification may exist in England for the Lord
Chancellor changing with the Government, there should be none that I can
discover in the Ireland of the future, unless it be in connection with the
appointment of Justices of the Peace. But fairness in distributing that
sort of patronage can surely be secured by other means than a frequently
recurring and unnatural change of Chancellors, whereby the Pension List is
heavily and unnecessarily burdened.
In connexion with the Royal Irish Constabulary, I am clear that the
control should rest, as now, with the Lord-Lieutenant (that is, with the
Imperial Government) until Land Purchase has made further progress, and
the new Government has gained experience of administration; but it is only
fair that during this period of reservation the Imperial Government should
allow Ireland a drawback on the cost of the police force, the present
strength of which is excessive if judged from the Irish point of view.
The situation will, of course, be anomalous inasmuch as there will be an
Executive Government responsible to the Irish Parliament yet relieved of
the prime responsibility resting on all Governments—the maintenance of law
and order. This anomaly cannot be avoided: it inevitably arises from the
political conditions of the case. The best way of dealing with the
situation will be to maintain existing arrangements which are directed by
the Under-Secretary and to preserve the subordination of the Law Officers
to the Lord-Lieutenant in all matters relating to the maintenance of
order. But while the Minister for Law and Justice should have no control
over the police during this transition period, his wishes in regard to any
matter will, of course, be carefully considered; his request for the
performance by the police of all duties not of a purely police character
which they now customarily discharge, will be complied with, and his
proposals to reduce the strength of the force, and thereby effect saving
in the public expenditure, will no doubt be favourably considered by the
Lord-Lieutenant if the state of the country permits.
I presume the Bill will indicate the kind of police force which in time
will take the place of the existing force. I confess I am not prepossessed
in favour of the plan embodied in this connexion in the Bill of 1886 or
1893. I think the best plan will be to retain the organization of the
Royal Irish Constabulary, and to reduce the present force by short
recruitment when the Imperial Government think that can be safely done. I
deprecate the creation of a local force under the control of the local
authorities.(71)
Finally, the question whether the force to be locally employed should be
armed, or not armed (as the Bill of 1893 proposed), may be left to be
decided at the time by the Imperial Government: but, in any case, it will,
I think, be necessary for the Irish Government to maintain a sufficiently
strong armed body of police in Dublin and other suitable centres to deal
with emergencies.
The control over the staff of Resident Magistrates is so intimately bound
up with the existing system of police administration that one cannot be
safely separated from the other, and this section of Law and Justice
should, in my opinion, also be reserved during the transition period. At
the same time I think the services of the Resident Magistrates can be more
fully utilized in the business of general administration than they are at
present.
There is less reason for retaining the Dublin Metropolitan Police under
the Lord-Lieutenant’s direct control during the transition period than for
retaining the Royal Irish Constabulary; and if the national feeling would
be gratified by giving to the Irish Parliament, at once, the control of
the Dublin police, I would defer to that feeling. But my personal opinion
is that the Irish Parliament in its earliest days would be wise to
concentrate upon self-organization, the establishment of control over the
departmental system, and the taking stock of the condition of the country
in all the various aspects of national life. It will then with greater
assurance of success take over from the Imperial Government the
responsibility for the maintenance of order.
I have already referred to the Land Commission. There is a general
agreement that the department of land purchase, which depends essentially
upon the use of British credit, should remain with the Imperial
Government. The only question is: should this department be permanently
excluded from Irish control, or only temporarily excluded, the period of
exclusion being in the discretion of the Imperial Government? In view of
the temporary character of the Land Commission, the possibility that
Legislation affecting land may be necessary before the Annuities generally
cease, and the certainty that when they do cease, either generally or in
any particular area, it will be desirable to remove all limitations on the
functions of the Irish Legislature in reference to land, I am disposed to
think it, on the whole, better to treat the Land Commission as a
“reserved” instead of an “excluded” subject, and thereby make its ultimate
transfer to Irish control a matter of executive action on the part of the
Imperial Government. But I admit the existence of strong reasons for total
exclusion, and I should not question a decision in favour of the latter
course.(72) Should it be excluded, I would suggest that it shall be open
for the Irish Government to bring to the notice of the Lord-Lieutenant any
matters in which the administration of the Land Commission seems to be
defective.
In this connexion I desire to call attention to the Congested Districts
Board and the power which it at present exercises of purchasing land under
the Land Purchase Acts. It is imperatively necessary, if this Board is to
be retained in its existing or in any modified shape, that its work of
relieving congestion and improving the condition of the peasantry of the
West should be brought under the supervision and control of the Irish
Legislature. But if the land purchase operations of the Land Commission
are to be excluded or reserved from control by the Irish Legislature, it
is very difficult to defend the subjection to such control of the land
purchase functions of the Congested Districts Board. How can the British
Treasury be reasonably asked to become responsible for prices fixed by an
Irish body over which it will have no control whatever? Such a situation
would be utterly anomalous.
The anomaly can be avoided (as suggested in my Minute appended to the
Report of the Royal Commission on Congestion, 1908) by relieving the
Congested Districts Board of its functions as a purchasing authority and
having purchases of land made for it, on its requisition, by the Land
Commission.
Having thus indicated my opinion as to the departments or sections of
departments to be temporarily reserved from the control of the Irish
Parliament, I come to the question of how that control should be exercised
over the departments remaining on the list. In this connexion I invite
reference to Clauses 20-22 of the Irish Council Bill. That Bill (Clause
19) contemplated the appointment of committees of council, with paid
chairmen, to administer the departments into which public business was to
be distributed under the Bill. It was my own expectation, had the Council
Bill become law, that the chairmen of these Committees of Council would in
course of time have become ministers for the departments concerned; but,
in the beginning and until experience had been gained, it seemed desirable
to give the embryonic ministers the help, and to impose on them the
restraint, of colleagues. Whether the future Irish Legislature will see
prudence or wisdom in this course, one can only conjecture; but one may
trust that it may. In the following observations, however, and without
meaning to imply any preference for “Ministers” over “Chairmen of
Committees,” I shall employ the word “Minister.”(73)
The first Department on my list is the Treasury. Here the new Irish
Administration must break entirely fresh ground and build from the
foundation. An Irish Exchequer must be created, a system of Treasury
Regulations and accounts must be evolved; an Irish Consolidated Fund must
be established; and a Bank must be selected with which the Irish
Government will bank. (Much pressure will, I anticipate, be brought to
bear on the Irish Ministry to distribute its favours in this connexion;
but, it would, I submit, be highly inconvenient to keep accounts with
separate banks). At present the Chief Secretary’s office in Dublin Castle
has a financial section, but the new Government will derive no inspiration
from its procedure. It will be better to look for precedents in Whitehall.
They will show a Treasury Board composed of members of the Government but
with the responsibility resting on one called the Chancellor of the
Exchequer who is answerable to Parliament for the country’s finances and,
subject to the decision of the Cabinet, possesses complete control over
them (excepting the Army and Navy Estimates). It will, I suggest, be wise
for the Irish Legislature to follow this precedent, and place the Irish
Treasury in charge of a Body of Commissioners (being Members of the
Parliament) with a Treasurer or Chancellor of the Exchequer, specially
responsible to it.
The governing principle, from the parliamentary point of view, of our
financial system, is that no expenditure can be proposed to Parliament
except by a Minister of the Crown.(74) I trust that the principle will be
reproduced in the Irish Parliament, and rigidly enforced. In no other way
can an adequate safeguard be provided against irresponsible and hasty
proposals for spending public money.
The Imperial Treasury at present, exercises financial control over every
department and branch of the public service (over the Army and Navy
estimates I believe the control is less effective than in other
directions). This is a wholesome practice, and it should be copied by the
Irish Legislature with one qualification. At present, the financial
control of the Treasury is occasionally accompanied by a degree of
administrative interference which I venture to think is sometimes
injurious to the public interests. The Treasury is deficient in
administrative knowledge; and for this reason its interference has not
infrequently led to inefficiency. Some administrative restraint is, of
course, inseparable from financial control; but when money is sanctioned
for a particular purpose, the administrative officers on the spot can
regulate detailed expenditure better than gentlemen at a distance.
The new Parliament should certainly provide a Public Accounts’ Committee;
and a Comptroller and Auditor-General, as under the Exchequer and Audit
Act of 1866; and I suggest for consideration, that the Departments should
be competent to challenge, before the Public Accounts’ Committee, any
over-interference on the part of the Treasury in administrative details.
While I should be glad to see in Ireland the most effective check upon
wasteful expenditure, I deprecate the exercise of a meticulous
interference in administrative details.
The secretariat arrangements to be made in connection with the Department
of Law and Justice, will depend on the extent of “temporary reservation”
to be effected. If there is to be the larger reservation, during the
transition period which I have suggested above, nothing need now be done.
Matters will continue, during that period, on their present footing. If
there is to be only partial reservation, the portion of the existing
office staff in Dublin Castle which deals with the unreserved sections can
be detached for employment under the Minister, who in this case would
doubtless also hold another portfolio. When the Department is brought
fully under Irish control, there will be found in Dublin Castle gentlemen
specially competent to give effect to the policy of the Legislature in
this Department of Irish Government.
But, whether the Judicial Department is brought sooner or later under
Irish control, an early opportunity should be taken of reviewing the
entire judicial organization with the view of pruning away redundancies
and placing it on a more economical basis. Few will be found to deny that
the existing staff of County Court Judges and legal officials of various
grades is excessive; and no one, with knowledge, will maintain that a
Supreme Court of 14 Judges, costing with their subordinate officers
£181,209 a year, is not too costly for a country with a population of 4-¼
millions. In the House of Commons Return (Cd. 210 of July, 1911), the
number of civil servants of all grades in the Supreme and Appellate Courts
of England (with their 39 judges) is shown as 461, while in the Supreme
and Appellate Courts of Ireland (with their 14 judges) it is shown as 257!
The administration of Education is at present distributed between three
Boards and the Irish Government and the circumstances call for drastic
reorganization. The Boards of National and Intermediate Education should
be abolished, and a Department of Education created under the control of a
Minister responsible to the Irish Legislature. Such a Minister would find
ready to his hand an official staff (working under the direction of a very
competent “Commissioner of Education”) which will not at the outset
require any large increase.
In the Irish Council Bill a Committee of Council for Education was
proposed, which provided for the admission of gentlemen not being members
of the Irish Council; the object being to conciliate public feeling which
is notoriously sensitive upon this matter, and to secure special
opportunities for representatives of the various religious creeds of
making their views felt. I believe that the liberality of that provision
was very inadequately understood in 1907; but in the altered conditions of
the present time, I do not repeat the proposal. The Irish Parliament,
under the coming Bill, will be a stronger representation of the popular
will than the Irish Council would have been, at all events, at the outset.
This change of administrative control, direction, and responsibility in
respect of Education will, I trust, have a powerful effect in improving
secular instruction, which is at present notoriously inefficient; but it
need not (apart from any declaration of policy by the Irish Legislature),
involve any change in the religious aspect of the teaching. Teaching in
Irish primary schools of all creeds is in practice denominational (though
not so in theory). My hope is that it will remain so. What the change will
involve is the control of the Department over the appointment, the
promotion, the removal, the qualifications, and the conditions of service
of every person employed in Irish schools. That is as it should be.
The “Endowed Schools” are conducted under schemes which have, I believe,
been settled by the Judicial Tribunals, and I do not suggest any
interference with such schemes, but the efficiency of the secular teaching
in those schools should be subject to the supervision of the Department of
Education.
I come next to the Local Government Board, which consists at present of an
_ex-officio_ President (the Chief Secretary) and three members, one of the
three being Vice-President and the real head of the Board. The appointment
of a Minister, being a member of the Irish Legislature, in place of the
_ex-officio_ President who never sits on the Board, will convert this
Board into a Department with a responsible Minister in charge. One member
of the Board (not the medical member) may be dispensed with, and the
Executive Establishment calls for revision. This Board comes into contact
with the people in many intimate relations of their lives and on its
successful administration will largely depend the popularity of the new
Administration.
The next Department is the Board of Public Works and Buildings, which at
present is a Treasury Department independent of Irish control. For the
“Chairman” should be substituted a Minister responsible to the Legislative
Assembly. At present there are three members, but one of these may, I
think, be dispensed with at once. I look to this Department to confer
benefits, long delayed, on the country; I would, especially, instance,
drainage. Ireland stands in need of nothing more than a system of arterial
drainage carried out on a large scale.
At present the Commissioners of Public Works in Ireland make recoverable
loans on behalf of the Treasury for land improvement and such like
purposes. In the scheme indicated above, the making of these loans would
come within the functions of the Finance Department. But the Department of
Works would naturally be the Treasury’s Agents advising on the necessity
for such loans and supervising the expenditure of them, when borrowed for
large betterment undertakings.
The next Department is the Department of Agriculture and Technical
Instruction. In the scheme outlined above Technical Instruction has been
brought under the Education Department, while the Congested Districts
Board has been brought under the supervision of the Department of
Agriculture. The Act under which the Department of Agriculture at present
works provides for two Bodies, to assist and advise the Vice-President,
(who, as in the case of the Local Government Board, is the working head of
the department)—a Board having a veto on expenditure, and a Council which
gives general advice on policy. Both the Board and the Council were
devised to supply that popular element in which the system of Irish
Government is at present lacking. Under the new dispensation this popular
element will be amply supplied. Both Bodies will therefore be unnecessary;
their continuance would conduce to embarrassment and friction with the
all-controlling Legislature. Both the Council and the Board should be
abolished. The President and Vice-President should also disappear, and in
their place should emerge a responsible Minister in charge of the
Department. This Department seems to be, after the Judicial Department,
the most expensively organised in Ireland. It is true that it comprises
some branches which have elsewhere an independent _status_: but
notwithstanding this, I am convinced that a revision of its numerous and
costly establishments is needed in the interests of economy and
efficiency.
I have already suggested that the Congested Districts Board should be
relieved of the duty of purchasing land, the Land Commission being
required to make these purchases on requisition from the Congested
Districts Board. I would add (in accordance with the principle suggested
by paragraph 100 of the Report of the Royal Commission on Congestion in
Ireland, (1908)) that the creation of an Irish Legislature destroys the
justification for this Board. The work can be better done by an Executive
Agency working under the control of a Committee of Parliament. But if a
Board is retained it should not be the large Board we have now. A small
Board of five will be more conducive to efficiency and far more amenable
to the control of the Legislature. That control I venture to add will be
most beneficially exercised in bringing about the abandonment of the
Congested District Board’s present policy of spoon-feeding the congested
villages of the West; and of dealing with them not, to any extent, on
eleemosynary principles, but exclusively on those of self-help. The
Board’s methods of relieving congestion should be assimilated to the
practice of the Land Commission on dealing with congested areas, if men
now living are to see the end of the Board’s activities.
In connexion with Registration, I think it is desirable to bring all kinds
of registration under the control of one Minister, but the work is mostly
of a routine character and a single Minister will doubtless find himself
able to direct this and also the last Department remaining on my list.
This Department—for General Purposes—brings together the remaining Boards
and Offices dealing with official work in Ireland; and under it may in
future be brought any official business of a temporary character, not of
sufficient importance to be dealt with by a separate Office, but yet of
such importance that a vote is taken for it in Committee of Supply.
I have placed “Fisheries” in this Department because that important
industry requires more attention than it has hitherto received, or than it
can receive from the Department of Agriculture. It will also be observed
that I have placed in this Department the subject of Thrift and Credit
Societies and Co-operative Banks: thus dissociating them from the
Department of Agriculture, which deals with them at present but with which
they have no necessary connexion. They have been made far too much the
battle-ground of contending parties. Some supervision by the Government
over these co-operative agencies may perhaps be necessary, but they will
flourish most when interference by the Government is least felt.
It remains to refer to the position and functions of the Lord-Lieutenant
under the new dispensation (it is, of course, to be presumed that no
religious disqualification will any longer attach to the office). On the
assumption that the Executive power will continue vested in the King, all
executive acts of the Irish Government must issue by authority of the
Lord-Lieutenant through whom will also be communicated the assent to, or
the withholding of assent from, Acts of the Irish Legislature. The Bill of
1893 (Clause 5 (2)) provided for:
“An Executive Committee of the Privy Council in Ireland to aid and
advise in the government of Ireland being of such members and
comprising persons holding such offices under the Crown as His
Majesty, or if so authorised, the Lord-Lieutenant, may think fit,
save as may be otherwise directed by Irish Act.”(75)
It will be desirable that such a Committee of the Irish Privy Council
should be created to assist the Lord-Lieutenant. But while the majority of
the Committee should always be composed of Ministers, it would, I think,
conciliate the minority, and otherwise make for efficiency, if some
members on the Privy Council Committee, were taken from outside the
Government. If the Committee were composed of ten members, seven might be
Ministers, and three members might be taken from outside the Government:
the decision of the Council would be that of the majority.
Of course, I am conscious of the fact, that this arrangement may be
objected to on the ground that it would expose the plans of the
Government, in particular cases, to gentlemen who might not be of the
Party in Office. But Privy Councillors are bound by oath to secrecy; and I
think the danger of a dishonourable betrayal of trust is incommensurate
with the advantages which this representation of outside feeling on the
Committee, would bring. Moreover, the Lord-Lieutenant would be free not to
summon any particular Privy Councillor to a session of the Committee, if
the Prime Minister objected to his presence. The proceedings of the Privy
Council would be secret, and no Minutes of dissent would be recorded.
I take it that under the coming Bill, the Lord-Lieutenant will have no
power to initiate action otherwise than by suggestion to the Ministers
concerned, who, may, or may not, act on the suggestion. Ordinarily, the
Lord-Lieutenant in Council will accept the Minister’s advice: but when he
differs, and persists in differing, he would be bound in the last resort
to refer the matter to the British Cabinet. _Ex-concessis_, all
proceedings of the Irish Legislature or Government will be subject to the
ultimate control of the Imperial Parliament.
It will be necessary to provide for the representation of the Irish
Government in the Imperial Parliament (a different thing from the
representation of Ireland, which, if the solidarity of the United Kingdom
is to be preserved, must be maintained, though, as I have already said, in
a proportion “which should be sensibly less than the proportion existing
between British Members and their electorates”). Some Member of the
Imperial Parliament must answer for that Government; and the question
arises whether the Member should be an Irish Member, designated by the
Irish Government, as its representative, or a British Minister. In view of
the fact that the Acts of the Irish Government will be subject to the
control of the Imperial Parliament, and must, therefore, come regularly
under the cognizance of the British Ministry, I suggest that the duty
should be discharged by the British Home Secretary, pending the time when
the establishment of the Federal System (Home Rule all round) will call
for a more far-reaching Parliamentary adjustment.
If the Land Commission (Group VII.) be excluded from Irish control, the
number of Ministers in charge of departments would be seven, reducible to
six by giving the portfolios of Groups VIII. and IX. to the same Minister,
and to five if a separate Minister for Law and Justice be not at once
appointed. With the Prime Minister, who might have charge of a department,
or, as in Canada, might be President of the Privy Council, a Cabinet of
seven or six as a minimum number would be composed; and this would seem to
be an adequate number, at all events to begin with.
The general result of the preceding suggestions should be that
responsibility for every agency engaged in the administration of public
business in Ireland will attach to a particular Minister, responsible to
the Irish Parliament; that interest in Irish public business will be
enormously stimulated in Ireland, and that a salutary public control will
be effectively exercised. In particular, it may be expected that public
money will be husbanded, and when expended, will be spent to the best
advantage.
It is not possible within the limits of a paper like this, to enumerate
the provisions of law, peculiar to Ireland which the organic changes
indicated in the preceding paragraphs may necessitate. An enquiry into
that matter (as into the redundancy of Judicial, Executive and Secretariat
establishments) will no doubt be undertaken by the Irish Government on a
suitable opportunity. But it is probably correct to say that changes of
substantive law will not be so much required as changes of practice,
whereby the administration of the law may be brought more into harmony,
than it is at present, with popular sentiment.
It is always to be remembered that the scheme of Home Rule or Devolution
which is advocated in this paper, does not contemplate the creation of a
body of law for Ireland, different from that prevailing in Great Britain.
In all matters of _status_, property and personal rights, the laws of the
two countries will, I presume, remain identical; and no legislation of a
restrictive, sectional, or sectarian character will be permissible in the
one country, which is not permitted in the other. It is also to be
presumed that the decrees of English Courts will be as enforceable by
Irish Courts and Authorities as they are now, and _vice versa_; and that,
in fact, the Judicial and Executive Organisations will be as available,
under the new order of things, for carrying on His Majesty’s Government in
both countries, as they are now.
If this be understood, most of the doubts and fears, and forebodings of
evil to come from this extension of Irish Local Government, will, I
predict, be soon dissipated.
III.—The Judicial Committee And The Interpretation Of The New
Constitution. BY SIR FREDERICK POLLOCK
“In this [the United States] and all other countries where there is a
written constitution designating the powers and duties of the legislative,
as well as of the other departments of the government, an act of the
legislature may be void as being against the constitution.” So James Kent
wrote in his Commentaries when the foundation of American independence was
still within living memory, and an observer in search of constitutional
autonomy under the British flag beyond the British Islands would have been
driven to find his best example in Barbados. Kent continues: “The judicial
department is the proper power in the government to determine whether a
statute be or be not constitutional”; for the interpretation of the
constitution which is the supreme law of the land is as much a judicial
act as the interpretation of an ordinary written law. This is the view
most natural to minds trained in English legal and political tradition. It
was established in the United States by a decision of the Supreme Court at
Washington early in the nineteenth century, and, though not previously
free from controversy, has been received ever since; and it has been
accepted by British publicists and lawyers as applicable to the decision
of causes involving constitutional questions throughout the British
Empire. As Chief Justice Marshall said:
“If two laws conflict with each other, the courts must decide on
the operation of each. If the courts are to regard the
constitution, and the constitution is superior to any ordinary act
of the Legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply.”(76)
The principle, so far as I know, has never been disputed by any English
authority, but occasions for its application did not often arise before
our own time. In strictness of law the King in Parliament has supreme
legislative power, as with or without Parliament he has supreme executive
power, in every part of his dominions. But in fact very large powers of
government have been granted in various ways and at various times, and in
the cases which now concern us are coupled with an effectual
understanding, though of a political rather than legal nature, that they
shall not be recalled. It may be observed that a grant of this kind is
quite possible without representative institutions. Extensive powers of
government and jurisdiction, including the highest “regalities” which
could be granted to a subject, were conferred on individuals by several of
the early colonial charters. William Penn’s charter is perhaps the best
known of these, and is a striking example. This, however, is remote from
the present purpose, as is the still wider subject of the political and
semi-political authorities granted by charter to the East India Company
and other trading companies. We have now to attend only to the creation of
autonomous powers by statutes of the Imperial Parliament.
The accustomed form in such creations is to confer in express words power
to make laws for the peace, order (sometimes “welfare”), and good
government of the territory in question. Within the limits prescribed in
its constitution, legislative power so created is full and perfect. The
Judicial Committee of the Privy Council has repeatedly laid down—not for
one Dominion only, but alike for British India, Ontario and New South
Wales—that it must not be likened to the merely vicarious authority of a
delegate or agent, and is not to be restrained by the rules applicable to
agency. So far as it extends, it is a plenary power analogous to that of
the Imperial Parliament itself and not to a ministerial authority which
cannot be delegated; and this applies to the federated units in a federal
system no less than to central or unitary legislature.(77) It is,
therefore, not quite accurate, though useful in the first introduction of
novices to the subject, to liken the enactments of any such local
legislature to the by-laws made under statutory authority by a railway
company or a town council. Such bodies can make the regulations they are
empowered to make, but cannot delegate the framing of any regulation, or
the decision of questions arising under it, to the traffic manager or the
town clerk. But a local legislature, within the limits of subject-matter
originally fixed, can do all that its creator the Parliament of the United
Kingdom could have done. The working safeguard against legislation which,
by improvidence or oversight, would conflict with Imperial requirements,
is the refusal of royal assent by the local Governor on the advice of his
Ministers, or, in the last resort, by the Home Government. Some of the
earlier Acts establishing self-government, following the common form of
the old colonial charter, provided that local legislation should not be
repugnant to the laws of England. This might have been held to forbid such
revolutionary changes as abolishing the publicity of Courts of Justice or
depriving prisoners of the right to trial by jury. In our own time the
question has been raised whether the sacred number of twelve jurymen could
be reduced by Order in Council in a criminal court established under the
Foreign Jurisdiction Acts in an Asiatic country.(78) But in 1865 it was
expressly declared by the Colonial Laws Validity Act that the enactments
of colonial legislatures should not be called in question for repugnancy
to the law of England in any other sense than repugnancy to some Act of
the Imperial Parliament or an order made under its authority.
These matters are only preliminary to the questions that arise under
federal constitutions, but they are necessary to be understood if we are
to avoid confusion. In the case of a federated Dominion within the British
Empire the federal constitution is itself an Act of the Imperial
Parliament, and therefore all exercise of legislative power in the
Dominion, whether by the central legislature or by that of any constituent
State or Province, must be consistent with its provisions, or otherwise it
will clearly be invalid to the extent of the repugnancy or excess. Every
such constitution has to assign the bounds of central and local
legislation; in the case of Canada, for example, the field of action open
to the Dominion Parliament at Ottawa and the legislatures of the several
Provinces. In strict legal theory the Confederation Act of Canada or the
Commonwealth Act of Australia can be amended at Westminster like any other
Act of Parliament; but, as in fact these constituent Acts were framed by
Canadian and Australian statesmen, so it is well understood that the Home
Parliament will not touch them except at the request of Canada or
Australia. With such request, there have been amendments and legislative
interpretations of the Canadian Constitution. If any Act of Parliament
might be called unconstitutional, uninvited intermeddling with the
constitution of a self-governing colony would be so. We may pause here to
draw one immediate consequence. Whenever Home Rule is enacted and
established for Ireland, Parliament must harden its heart against all
endeavours, from whatever quarter they may proceed, to obtain any
alteration in the scheme save as it may be required by the regularly
expressed will of Ireland as a whole. This should be an understanding
outside and above all party divisions, British or Irish; and it is equally
necessary whether or not a certain number of Irish members continue to sit
at Westminster.
We now turn to the possible conflicts of legislation under a federal
constitution. It will be convenient to use the more expressive and
generally understood word “State” for the autonomous components of the
federation. The Canadian term “Province” is prior in time within the
Empire; but it might be misleading to readers unacquainted with Canadian
affairs, as tending to suggest merely administrative functions like those
of a County Council: a body which has many important duties and some
delegated legislative authority, but cannot reasonably be called
autonomous. A federal constitution must assign some legislative powers
exclusively to the federal legislature, and it may reserve or assign
others exclusively to the State legislatures. It may also leave a region
in which the States have power to legislate, but subject to a concurrent
and superior power in the federal authority. This is actually the case in
Canada. Hence questions may arise of a more complicated kind than those
which are open under unitary Home Rule; they may nevertheless be
instructive in simpler cases. The Judicial Committee has deliberately
abstained from laying down any general system of interpretation or any
presumption in favour of extending or limiting the powers of either
Federal or State legislation. It is prepared to take some pains to
reconcile apparently conflicting enactments, but beyond that no precise
method can be formulated. The Court must deal with the problem of each
case on its own merits. “The true nature and character of the legislation
in the particular instance under discussion must always be determined in
order to ascertain the class of subject to which it really belongs.”(79)
Again: “In performing this difficult duty, it will be a wise course for
those on whom it is thrown to decide each case which arises as best they
can, without entering more largely upon an interpretation of the statute
than is necessary for the decision of the particular question in
hand.”(80) It would seem obvious without argument that the courts of
Canada, Australia, or in the future, Ireland, cannot be bound in any case
to give effect to two conflicting enactments of the local and the central
legislative bodies at once, notwithstanding that some of the language used
by the Judicial Committee a few years ago, on an appeal from the Supreme
Court of Victoria, suggests that there is no authority anywhere, short of
an Act of the Imperial Parliament, capable of resolving such a
contradiction.(81)
The question remains what should be the ultimate court of appeal for
questions of this kind arising under an Irish Home Rule Act. According to
our general forensic habit and tradition, it would be the court to which
appeals are taken in the ordinary course from the Court of Appeal in
Ireland, namely the House of Lords. It appears however to have been
decided that this duty will be more appropriate to the Judicial Committee
of the Privy Council. Now it is high time, for quite independent reasons,
that these two courts of last resort, which are composed in practice of
the same, or very nearly the same members, should be merged in a single
tribunal of final appeal for the whole of the British Empire. In the
meanwhile the only material difference is that when noble and learned
persons are sitting as the House of Lords they can and do express their
individual opinions in the form of speeches addressed to the House itself,
and when they sit as “their Lordships” of the Privy Council, or “this
Board,” only one opinion is given as the Judicial Committee’s advice to
His Majesty. For my part I rather think that the suppression of dissenting
opinions does not work well in cases of constitutional interpretation.
Some decisions of the Judicial Committee within pretty recent memory have
been hardly intelligible; one is tempted to conjecture that not all of the
reasons for them commanded unanimous assent, and the reasons to which the
whole or the greater part of their Lordships could agree were not the best
that any of them could have given. Separate and dissenting opinions are
freely given in the Supreme Court of the United States, which has dealt
with the most delicate constitutional questions ever since its work began.
If I were an Irishman I think I should prefer the House of Lords to the
Judicial Committee. But, as above said, it is hoped that before very long
they will cease to be distinct tribunals. Moreover there is a practical
reason, which shall now be mentioned, for making the Judicial Committee
the final Court of Appeal in this behalf.
It appears from the published text of the Bill [cl. 29, sub.-cl. 1] that
the Lord-Lieutenant or a Secretary of State—in ordinary political language
either the Irish Government or the Home Government—may refer a question
whether any provision of an Irish Act or Bill is constitutional to be
heard and determined by the Judicial Committee of the Privy Council. That
Committee is to decide who are the proper parties to argue the case. There
does not seem to be any reason to apprehend that the parties interested
would make difficulties on the score of expense; they would be either
public authorities or representative associations. This provision is
really not a novelty but a special declaration, and perhaps an
enlargement, of the very wide power given by the Act which established the
Judicial Committee in 1833,(82) and empowered the King “to refer to the
said Judicial Committee for hearing or consideration any such other
matters whatsoever as His Majesty shall think fit”: a power more than once
exercised in our own time.(83) It is quite easy, however, for even learned
persons who are not familiar with the practice of the Privy Council to
overlook the existence of this enactment, and therefore the insertion of
an express clause in the Home Rule Bill is judicious. Probably no one will
seriously propose to deprive the Crown, as regards Ireland, of a power
which it already has throughout the British Empire. But it is a matter
from which party politics ought to be rigorously excluded. It should be
understood that the power will not be exercised without a considered
opinion of the law officers, in Ireland or here, that there is a
substantial and arguable question.
IV.—Constitutional Limitations Upon The Powers Of The Irish Legislation.
BY SIR JOHN MACDONELL, C.B., LL.D.
Securities For Religious Freedom
It may be of interest before dealing with the safeguards for religious
liberty in Ireland to describe those adopted in other countries. This
survey, made in no controversial spirit, may help to give a proper sense
of perspective and proportion. A brief comparative study of the legal
safeguards for religious liberty may not perhaps help much to inspire the
spirit of charity and toleration, which are its best supports. But we know
our own position better when we know that of others. It is some gain also
to find that others have had the same problems as ours, and have solved
them with more or less success. Certain fears are much abated when it is
recognised that it is proposed to make in Ireland an experiment of a kind
which has been satisfactorily carried out elsewhere. Political justice has
been found, in the countries to which I refer, compatible with religious
freedom. Why not in Ireland?
Constitutional Limitations
I. PROGRESS OF RELIGIOUS LIBERTY
In most States to-day religious liberty exists with some qualifications—it
is one of the most characteristic features of modern legislation. All
religious denominations are tolerated; some may be favoured; all are free
so long as they do not come into conflict with generally accepted
principles of morality. In most States there is a further advance; we find
a tendency, more and more accentuated, towards religious equality; more
and more is it the policy of States to place all religious denominations
upon the same footing. This principle is not carried out completely in all
or indeed in most States. Certain churches are in a special sense State
Churches. In some countries, the churches of large parts of the population
are treated as “recognised churches,” to their advantage and to the
exclusion, it may be, of others. In Austria, for example, there are six
recognised churches and religious societies; and a similar system exists
in Hungary.
I do not attempt to analyse the many causes of these movements. The fact
at all events is that, whether as the result of the attrition, everywhere
going on, of dogmatic creeds, or of the growth of the spirit of tolerance,
or of indifference, or the rediscovery of charity as a fundamental
principle of Christianity, or because toleration is the line of least
resistance, or because it best accords with democracy, almost everywhere
in modern times in Europe and America religious equality seems to be the
condition towards which States are moving. It is worthy of notice that
complete freedom is demanded by many sincere adherents of churches who are
impatient of State control, and who believe that spiritual life thrives
best in an atmosphere of freedom. It is the creed, I am inclined to think,
of an ever increasing number that the existence of a free Church in a free
State is to the welfare of both.
Even where the principle is questioned, practice tends to conform thereto.
Reluctantly and grudgingly conceded as a favour, religious toleration
becomes part of the habitual attitude of mind at first of the more
enlightened and then of ordinary men. The principle of religious liberty
or equality is still disputed by the Church of Rome.(84) The doctrines of
Gregory VII. and Innocent III. are still asserted as of old. The syllabus
of Pius IX. condemns the principle of equality as enshrining an error not
less pernicious because common; it is the vain attempt to equalise creeds
incomparable with each other and radically different; such liberty is no
better than liberty to err. That is the position taken up in the Papal
Syllabus. But in modern times all churches, the Roman Catholic not
excepted, have yielded, often insensibly and reluctantly, to the pressure
of facts. The ideal condition may be domination of the church; the
practical problem in adverse circumstances is how to make the best
compromise. Vatican decrees notwithstanding, the powers which issue them
cannot, and do not, press their claims as they once did. Immutable in
doctrine, they are found to be adaptive in practice. Churches which
retract nothing alter their practice; they do not escape the influence of
the age and the country, Ireland not excepted, in which they work.
Everywhere the tendency is towards religious equality; I find abundant
evidence of it even in the policy of the Church of Rome. Many books have
been written describing the recent increase of the pretensions of Papal
absolutism. There exists, so far as I am aware, no complete history of the
policy pursued by the Church of Rome in countries in which it cannot give
full effect to its doctrines respecting the true connection between Church
and State. Such a history would reveal the existence and exercise of a
singularly adaptive power; the growth of a policy suitable for and
acceptable in non-Catholic countries and under democratic rule. In the
wonderfully rich system of the Canon law are devices suitable for all
circumstances. The Church may promulgate a decree in one country and not
in another; the Tridentine decrees at the close of some four centuries are
not yet made universally obligatory. It may for centuries leave it
uncertain whether a bull specially assertive of the power of the Church,
is in force in a particular country. The doctrine of the Canon law as to
the efficacy of customs, and particularly local customs, permits of
variations in accordance with the necessities of time and place. _Semper
eadem_, but elastic and always opportunist—such is the character of the
actual policy of the Church;(85) and there is no reason to think that it
will be otherwise in Ireland under popular government.
The Roman Catholic Church has lately shown itself accommodating in Germany
in regard to the marriage law. When Dr. Hogan of Maynooth College writes
of “the peaceful character and disposition of the church and her
reluctance to cause any disturbance of the social affairs of States or
communities, even where the vast majority of the people are hostile to her
religious claims”; when he adds “if it can be shown that a new law (the
_Ne temere_ decree) inflicts any serious grievance on Protestants in this
country, we are satisfied that due consideration will be given to any
representations which may be made in this matter,” he is borne out by the
recent policy of his Church, even if one cannot admit the accuracy of his
further statement: “Such has always been the policy and practice of the
Church in this matter.”—(_See_ _Irish Ecclesiastical Record_, February,
1911). The system never breaks, but it bends—bends to the exigencies of
new situations, and particularly of democratic institutions, such as will
exist in Ireland under Home Rule.
II. SECURITIES FOR RELIGIOUS LIBERTY
How to obtain and still more how to secure such liberty or equality is a
problem in every modern State. The actual solutions, though many, fall
into a few groups(86); I enumerate the chief. There are countries with
State Churches in which have gradually been made concessions to other
denominations. England is the typical example. Religious equality (so far
as it exists) is the result of a long series of measures; the successive
removal of disabilities of Dissenters and Roman Catholics; of measures
relating to the tenure of public offices, and as to marriage, or oaths. No
one Act states any governing principle. After the fashion of English
legislation there has been movement from point to point, though, on the
whole, always, or with few relapses, in modern times, in one direction.
The securities for equality are found in a long series of individual
statutes. Such, also, may be said to have been the history of religious
equality in Hungary; as in so many countries there has been a gradual
abandonment of the old maxim _cujus regio, ejus religio_.
I am concerned with the safeguards for equality within a State, and so I
need say little or nothing of the Gallican system, which was intended to
secure liberty against foreign intrusion. It was the liberty claimed by a
church, which refused toleration to other denominations; the protests of a
national Church part of Catholicism against the intrusion of the Papacy;
it was the assertion of claims, which, to quote Saint Simon, “_blessent
douloureusement la Cour de Rome_”; assertions of the doctrine that the
French kings were in secular matters independent of the Pope, and that the
Pope’s spiritual authority was limited by the laws of the church. In some
countries, churches have secured a large measure of religious liberty or
autonomy by means of Concordats with the civil Power. The typical case is
that of the Catholic Church in France, where such a system may be said to
have existed from the Concordat of Bologna, concluded between Francis I.
and Leo X. in 1516, until recent times, with the exception of a short
break at the Revolution; they may be said to have established an offensive
and defensive alliance between Church and State.
I come to systems and devices chiefly used in modern times to secure
religious liberty or equality. They are to be found in particular in
countries possessing written constitutions. Either they lay down with more
or less clearness principles of religious equality, or, dealing
specifically with some pressing danger or difficulty, they provide a
safeguard as to it. The first striking example of this kind of restriction
is to be found in America. Dread of the existence of an established Church
and of its ultimate effects upon republican institutions was shared by the
framers of the United States Constitution and most of the framers of the
States Constitutions. The provision which Jefferson caused to be inserted
in the Virginia Bill of Rights and the article in the Massachusetts
Declaration of Rights have been copied with variations by the States.
Speaking generally, they provide for equality of treatment of religious
denominations (Stimson, “Federal and State Constitutions,” p. 137). In the
Constitution of the United States there is only one Article on the subject
(Amendment, Article 1). “Congress shall make no law respecting the
establishment(87) of religion or prohibiting the free exercise thereof.”
In the United States true equality exists; all denominations are treated
alike; the modern tendency towards equality has triumphed as the result
partly of national habits and partly of constitutional restrictions.
I may here cite one or two examples of modern Constitutions which have
laid down principles designed to secure religious equality.(88) Naturally
Switzerland, with its population nearly equally divided into Catholics and
Protestants, has been obliged to deal with this question, and so far as I
am aware, it has done so with success. The principles of religious
equality are embodied in the amended Constitution of 1874. I quote the
chief provisions, because they are on the whole the most complete set of
existing safeguards which I have found.
“_Article_ 49.—La liberté de conscience et de croyance est
inviolable. Nul ne peut être constraint de faire partie d’une
association religieuse, de suivre un enseignement religieux,
d’accomplir un acte religieux, ni encourir des peines, de quelque
nature quelles soient, pour cause d’opinion religieuse.
“L’exercice des droits civils ou politiques ne peut être restreint
par des prescriptions ou des conditions de nature ecclésiastique
ou religieuse, quelles qu’elles soient.
“Nul ne peut, pour cause d’opinion religieuse, s’affranchir de
l’accomplissement d’un devoir civique.
“Nul n’est tenu de payer des impôts dont le produit est
spécialement affecté aux frais proprement dits du culte d’un
communauté religieuse à laquelle il n’appartient pas. L’exécution
ultérieure de ce principe reste réservée à la legislation
fédérale.
“_Article_ 50.—Le libre exercice des cultes est garanti dans les
limites compatibles avec l’ordre public et les bonnes mœurs.
“_Article_ 54.—Le droit de mariage est placé sous la protection de
la conféderation.
“Aucun empêchement au mariage ne peut être fondé sur des motifs
confessionels.”
While declaring the principle of liberty of conscience, the Swiss Federal
Constitution permits the cantons to give a privileged position to certain
religious denominations; they may give them subsidies; they may invest
them with certain prerogatives denied to other bodies less favoured. For
example, in Fribourg, the Catholic and the Protestants are put on a
footing of equality. Owing to the powers possessed by the separate cantons
religious equality is not so complete as at first sight might seem. No
serious difficulty appears to have been experienced in giving effect to
the above provisions(89) which are not so complete as those found in the
Home Rule Bill.
III. SAFEGUARDS IN COLONIES
I come to legislation which may seem of a kind more helpful and
instructive than that of Continental countries. In the British Colonies
there is no connection between the State and Church. The sole important
exception is in Canada, where “the church can compel by law the payment of
dues by Roman Catholics, and thus obtains great privilege from, while
independent of, the State.”(90)
In framing the Constitution for the Canadian Dominions the religious
question chiefly considered related to education; it was deemed necessary
to guard against legislation which might impair existing rights. It was
with an eye to the possibility of injustice being done to the
denominational schools that special provisions were inserted in the North
American Act accordingly (30 & 31 Vic., c. 3, 1867, Section 93):
“In and for each province the Legislative may exclusively make
laws in relation to education, subject and according to the
following provisions:
“(1) Nothing in any such Act shall prejudicially affect any right
or privilege with respect to denominational schools which any
class of persons have by law in the province at the union;
“(2) All the powers, privileges and duties at the union law
conferred and imposed in Upper Canada on the separate schools and
school trustees of the Queen’s Roman Catholic subjects shall be
and the same are hereby extended to the dissentient schools of the
Queen’s Protestant and Roman Catholic subjects in Quebec;
“(3) Where in any province a system of separate or dissentient
schools exists by law at the union, or is thereafter established
by the Legislature of the province, an appeal shall lie to the
Governor-General in Council from any Act or decision of any
provincial authority affecting any right or privilege of the
Protestant or Roman Catholic minority of the Queen’s subjects in
relation to education;
“(4) In case any such provincial law as from time to time seems to
the Governor-General in Council requisite for the due execution of
this section is not made, or in case any decision of the
Governor-General in Council on any appeal under this section is
not duly executed by the proper provincial authority in that
behalf, then and in every such case, and as far only as the
circumstances of each case require, the Parliament of Canada may
make remedial laws for the due execution of the provisions of this
section, and of any decision of the Governor-General in Council
under this section.”(91)
Lately there have arisen religious difficulties to which this section has
no application. By the Confederation Act (Section 91) the Dominion
Parliament has exclusive jurisdiction as to marriage and divorce;
jurisdiction which would appear to relate to capacity as to marriage. By
Section 92 in each province the legislature may exclusively make laws as
to “the solemnisation of marriage in the province,” which would appear to
extend to all matters affecting the form and ceremony; a division of
powers certain to produce sooner or later conflicts. Recently the _Ne
temere_ decree was promulgated in Canada. The effect upon Roman Catholics
has been considered in what is known as the Hebert case, the chief facts
of which were these: Eugene Hebert and Emma Clouatre, both Roman
Catholics, were married by a Protestant clergyman. The marriage was
declared null and void by Archbishop Bruchesi. His decision was confirmed
by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau,
who held that any officer qualified by the State to marry persons could
marry persons of any religious faith; that the _Ne temere_ decree had no
legal validity and was binding only upon the consciences of Roman
Catholics.
To quote a report of Judge Charbonneau’s judgment:
“I do not think that the Roman congregation ever intended the _Ne
temere_ Decree to have a civil effect. It applies to Roman
Catholics only. As for the Archbishop’s nullification, it has the
same legal effect, but not more than the decree upon which it is
based. It simply declares that no Catholic marriage ceremony was
performed.”—(_Globe_, Toronto, February 23rd, 1912.)
So far as I know, there has been no appeal to the Judicial Committee, and
I take it that Judge Charbonneau’s decision is binding in Canada.(92)
In the Constitution of the Australian Dominion is a provision similar to
that quoted above from the Constitution of the United States. (Section
116):
“The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious
test shall be required as a qualification for any office or public
trust under the constitution.”
This enactment, so far as I am aware, has not been the subject of
interpretation. Religious equality in Australia has virtually no history.
IV. SAFEGUARDS FOR IRELAND
I come to the position of things in Ireland. It may be well at the outset
to make clear two points. The first is the present legal status of the
Roman Catholic Church in that country. It is the same as that of any other
voluntary association; its position theoretically no better and no worse.
It possesses autonomy; it enjoys freedom as to doctrine and worship; its
constitution is not interfered with; it regulates clerical education; it
nominates its bishops; it administers its property in its own way.
It may thus enjoy immense power, especially if there be no true national
system of primary education; it may well be doubted whether it possesses
as much power in any other country as in Ireland. But like other voluntary
religious associations the Catholic Church is not wholly withdrawn from
the supervision and control of the Law Courts. A series of decisions of
our highest courts with reference to Churches in Ireland and Scotland, and
the colonies, have laid down certain principles equally applicable to the
Roman Catholic Church and to all other religious bodies; in particular,
these principles: that the State can exercise control over all religious
bodies possessing property when it is proved to be contravening its rules
to the injury of members. In the case of societies resting upon a
consensual basis, Courts of Justice are bound when due complaint is made
that a member of the society has been injured as to his rights in any
matter of a mixed spiritual and temporal character, to inquire into the
laws or rules of the Society.(93) Further the authority of a Church cannot
be legally used for purposes inimical to the State or contrary to any
statute. It may make rules for its own members; it cannot enforce them
against others; they are invalid against them if contrary to the terms of
any statute. It may, for example, declare that it will not regard a
marriage with a deceased wife’s sister as valid; it may refuse to
recognise as members those who so marry. But such rules will not legally
invalidate a union which a statute has legalised. Probably this has not
always been fully borne in mind by those who have denounced the
promulgation of the decree _Ne temere_ in Ireland. Resolutions have been
passed against it here and in Ireland. Many Nonconformist bodies have
protested against the promulgation of the decree in British Dominions. The
decree is, I think, objectionable for several reasons, and not least
because it discourages mixed marriages, an effect which seems to me
deplorable, for nothing is better calculated to put an end to
uncharitableness and hatred than the frequency of such unions. But while
such a decree may do harm, it will have no direct effect except as between
the members of the Catholic Church _in foro conscientiæ_. The Irish
marriage law, which with a few exceptions is the same as the English, is
binding on all Catholics and Protestants. Lord Llandaff who speaks at once
as a lawyer and as a Catholic, puts this point clearly:
“The invalidity was that of the sacramental and not of the legal
marriage, and what the Church said to one of her subjects in such
circumstances was: ‘You are married; you are a husband; but you
may not receive the sacrament, and therefore you are in a state of
sin, and in that sense your marriage in void, according to your
conscience, though not according to the law.’ ”(94)
A movement of retrogression the promulgation of the decree may have been;
but every religious body must be free to lay down rules as to its
membership. To quote the letter of the Archbishop of Canterbury of
November 8th, 1911, on this subject: “Any branch of the Church of Christ
must clearly have the power of defining the conditions of membership.”(95)
It is but fair to remember that the decree _Ne temere_ is part of a
settled policy. The Church of Rome has often shown its disapproval of
mixed marriages which Benedict XIV. declared “abominable.”(96) It is but
fair also to take note of the plea that this decree is the latest attempt
to secure uniformity in regard to marriage law; attempts which have been
pursued since the _Tametsi_ decrees of the Council of Trent. Before the
reform in the marriage law then effected there was much confusion and
looseness. All that was required for a valid marriage was that the
contracting parties should express to each other their mutual consent by
words _de præsenti_; a state of things which favoured fraud and led to
uncertainty. The Tridentine change must appear to most lawyers to have
been a great reform; marriage was to be solemnised in the presence of the
parish priest of one of the parties and of two witnesses. But this
ecclesiastical law is not even now in force in several countries. It was
promulgated in most Catholic countries; it was never promulgated in purely
Protestant countries, or in all countries with a mixed population. It
applied to marriages between two Catholics but not necessarily to mixed or
to Protestant marriages. It might be in force in one part of a country and
not in another. Thus the _Tametsi_ decree was in force in the greater part
of the province of Armagh since the time of Elizabeth. Not until 1827 was
it promulgated in the province of Dublin. Now we are told that it was to
secure still further uniformity that the decree _Ne temere_ was published.
It requires all persons baptized in the Catholic Church, and those who
have been converted to it from heresy or schism, to marry in the presence
of the parish priest or ordinary of the place in which the marriage is to
be celebrated, otherwise the Church will regard it as null. If neither of
the contracting parties is a Catholic the Church recognises the marriage
as valid wherever it is celebrated.(97) How far other motives may have
operated I cannot say; it is only fair to bear in mind that the decree is
defended as a fresh effort to introduce certainty and definiteness as to a
fundamental institution.
I may here refer to the fears expressed as to the effects of the decree,
_Motu Proprio, Quantavis Diligentia_ of October 9th, 1911; a decree which,
it is said, might conceivably place every sincere Roman Catholic in
antagonism with his duties to the State. The principle of that decree
seems to me highly objectionable; it is an impossible attempt to revive
the past; a form of the greatest of all heresies, disbelief in spiritual
forces unsupported by privilege. But here, too, it is well to understand
the case made by defenders of that decree, and before deploring its
effects in Ireland to be certain that, in the view of the Catholic Church,
it is in force there. When the Church was all powerful, there existed a
_privilegium fori_ according to which no layman could bring a cleric
before a lay tribunal; a privilege based upon the words of St. Paul to the
Corinthians who resorted to the Pagan Courts. By various Concordats the
Papacy had agreed to abrogate this right wholly or partly. In some
countries the privilege had become extinct. In October 1869, was issued
the bull of Pius IX., _Apostolicæ Sedis Moderationi convenit_ which
appeared to revive the _privilegium fori_. This, however, is denied by
Roman Catholic theologians; according to them where no such Concordat
exists, a custom has grown up that breaches of ecclesiastical immunity are
to be overlooked; in any case it operates only as to canonical
offences.(98) Whether that interpretation is correct or not, I need not
enquire. But obviously such a rule has no legal efficacy; and it would be
a strong measure to deny the Church the right to give to its adherents
such monitions—for its commands are no more—as it thinks fit.
V. FUTURE SAFEGUARDS
In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed
to secure equality of treatment. Thus the Irish Legislature was prohibited
from making any law.
Respecting the establishment or endowment of religion, or
prohibiting the free exercise thereof; imposing any disability or
conferring any privilege on account of religious belief;
abrogating or derogating from the right to establish any place of
denominational education or any denominational institution or
charity; prejudicially affecting the right of any child to attend
a school receiving public money without attending the religious
instruction at that school; or impairing without either the leave
of Her Majesty in Council first obtained on an address presented
by the legislative body of Ireland, or the consent of the
Corporation interested, the rights, property or privileges of any
existing corporation, incorporated by Royal Charter or local or
general Act of Parliament.
(Summary of Clause 4 in Bills of 1886 and 1893.)
Two comments may be made upon these provisions. They were so minute as to
be at once a source of frequent irritation and certain to give rise to
frequent conflicts with the Irish Legislature and as to be calculated to
encourage litigation. Further, they did not specifically deal with the
subject of marriage, an omission which, in view of the decree _Ne temere_,
seems objectionable. They are replaced by a general clause to the
following effect:
“In the exercise of their power to make laws under this Act the
Irish Parliament shall not make a law so as either directly or
indirectly to establish or endow any religion, or prohibit the
free exercise thereof, or give a preference, privilege or
advantage, or impose any disability or disadvantage, on account of
religious belief or religious or ecclesiastical status, or make
any religious belief or religious ceremony a condition of the
validity of any marriage.”
How far these provisions will be eluded probably no one can say with
certainty. It is difficult enough to ascertain the present situation in
Ireland without attempting to predict with confidence the future.
Statements diametrically opposite are vouched for by persons of equal
experience and opportunity of knowledge. “Facts” in that country are so
elusive. What is true in the south is fiction in the north, and _vice
versa_. It may be admitted that machinery designed to protect minorities
counts for less than the spirit actuating those who work it. The greatest
security no doubt for religious liberty would be the presence of a general
spirit of mutual forbearance; militant bigotry could not permanently exist
alongside the prevalence of the spirit of charity; and Ulster, as well as
other parts of Ireland, might make its contribution thereto. Some new
forces there are working for toleration, I believe that they are
increasing. Among them are these: the action of democratic institutions in
which persons of all creeds take part; the prosperity of the country
bringing in its train to all parts of the country new ideas and hopes and
interests; the performance by Catholics and Protestants of common civic
duties; the constant stream, strongly charged with secular elements,
flowing between Ireland and the United States; the silent influence of
literature and newspapers permeated by a spirit which no priesthood can
exorcise; the frequency of mixed marriages as proved by the action of the
Catholic Church against them; the existence of urgent political and social
questions as to which men are not divided according to their religious
beliefs. These are so many manifestations of the modern spirit, from the
operation of which Ireland no more than any other part of the western
world can escape. They may prove stronger than legal safeguards.
I shall not attempt to measure the relative strength of these influences,
but I should be inclined to rate highest the ultimate effect of democracy,
and of a Parliament in which must be a Protestant minority powerful by
their talents, their wealth and their energy. Democracy has everywhere its
own problems, as engrossing for it as any in which the Church is
interested. It will solve them in its own way, which may not be always the
Church’s. “Nothing,” says Mr. Bryce with reference to America, “excites
more general disapproval than any attempt by an ecclesiastical
organisation to interfere in politics.” Under democratic institutions
there may be the same results in Ireland. The remodelling of primary
education will probably be one of the first struggles in which an Irish
Parliament will be engaged. The fight will be in the open, which is a
clear gain. The Church may for a time succeed in retaining its present
hold over the schools. It is quite as likely that it will lose ground, and
that the first Irish Minister of Education will be the first to incur
ecclesiastical censure. There is much evidence of the growth of a
widespread toleration extending it may be hoped, to the northeast corner
of Ulster:
“Since the Local Government Act of 1898,” writes Mr. Annan Bryce,
“it has not been found that the priest interferes unless in the
rare cases where there is a question of personal morality, and
then not always with success.”
The opinions of three Lord-Lieutenants upon this point cannot be ignored.
Lord Aberdeen:
“After years of continuous residence in Ireland, watching affairs
and meeting people of every class and creed, I am profoundly
impressed with the baselessness of alarm about the consequences of
Home Rule.
“On Home Rule for Ireland, I repeat and emphasise the opinion of
my former telegrams, especially regarding apprehension of
religious intolerance.”
The late Lord Spencer:
“I have had some experience of Ireland, and yet I do not know any
specific instance where there has been the exercise of religious
intolerance on the part of the Roman Catholics against their
Protestant countrymen.”
The Marquis of Crewe:
“In 1886 and 1893 the animosity between classes, largely agrarian
in its origin, was far stronger than at present, and the line of
cleavage roughly followed that of religious difference. But even
in those days, as I well remember, it was evident that the
possibilities of intolerance in a self-governed Ireland were
deliberately and grossly exaggerated, with a party motive. Now,
when the various classes know each other better, and there is less
occasion for friction, the attempt to excite religious discord
will utterly fail, as I firmly believe.”
The safeguards provided by the measure deal specifically with the subjects
as to which fears of religious inequality exist: establishment and
endowment, education and marriage; as compared with them, the provisions
in the Canadian and Australian Acts are very imperfect. They guard, in
explicit terms, against the dangers to religious liberty and equality in a
way in which probably no other Constitution does.
A necessary supplement to any Legislature with limited jurisdiction is a
Court of Appeal. Under the proposed constitution, the Irish Courts will be
free to determine the constitutional character of any measures passed by
the Irish Parliament; and from their decisions an appeal will lie to the
Judicial Committee of the Privy Council, which will decide questions
similar to those determined by it with reference to the Canadian and
Australian constitutions, and by the Supreme Court of the United States
reviewing the constitutional character of State legislation. It may be
surmised that the Court will be faithful to the principles which it has
laid down in dealing with the powers of the Parliaments of the Dominions.
It has not hesitated to interfere in Canada with ecclesiastical sentences
or censure which it believed invalid (see _e.g._, _Brown_ v. _Curé de
Montreal_). It will, we may assume, do likewise in Ireland.
To conclude: He who believes in political freedom will believe also that
religious oppression cannot long co-exist with it. Never, so far as I
know, has ecclesiastical tyranny been enduring under democratic
institutions; and I see no reason why the result should be different in
the new Ireland which the Land Acts and the Local Government Act have
created. Full and free political life is the best, perhaps the only,
solvent of intolerance.
V.—Financial Relations(99) BY LORD WELBY
“The Channel forbids Union, the Ocean forbids separation. I demand
the continued severance of the Parliament with a view to the
continued everlasting unity of the Empire.”
Terse words in which a great statesman summed up the relation of Ireland
to England. The Home Rule Bill will give the sanction of law to Grattan’s
aphorism. It bids Ireland manage her own affairs, freeing her in her own
house from official bondage to an unsympathetic consort. If the Act of
Enfranchisement is drawn in a trustful and large spirit, it will, we may
feel assured, end the feud of centuries, and create unity where the Act of
Union has created enmity.
The policy of Home Rule is wise in itself, and worthy the statesmanship of
a nation always bold in the hour of need, and, as experience of its
working is gained, it will commend itself more and more to the commonsense
of a practical people, but the immediate success of the first Home Rule
Act will depend greatly on the skill and wisdom with which the details of
a complicated measure are devised, facing fairly the financial evils
consequent on Tory obstinacy, and avoiding, in reasonable degree, offence
to popular prejudice and existing interests.
The provisions which will adjust the financial relations between the two
nations are not among the least difficult of those details, and Parliament
must solve the puzzling problem without delay. It must begin by
temporarily giving local government in Ireland a fair start at the cost of
the British tax-payer.
Let us, in the first place, clear the ground from some doubtful arguments
which, used as premises, will probably lead the unwary to false
conclusions. A plea is often put forward that England is a rich country
and Ireland a poor country, and it is argued that identical taxation
therefore wrongs Ireland. But England is not a rich country, in the broad
sense. It is a country in which there is vast accumulation of wealth, but
in which, also, there is a great mass of poverty—poverty probably
exceeding the poverty of Ireland, and, therefore, identical taxation if it
wrongs the poor of Ireland, wrongs still more the poor of England. Critics
arguing from this false premise contend that the extension of the
Income-tax to Ireland was a wrong, that is to say, the wealthy man living
in Ireland, where living is relatively cheap, ought not to contribute to
the national expenditure on the same principle as the wealthy man living
in England, where living is relatively dear; or, to put the argument in
another form, it is sound finance to take Income-tax from a man in
England, struggling on a few hundreds a year. It is unsound finance to
take Income-tax from, say, the profits earned in Ireland by the Guinness
firm. Nationalists, misled by the plea of Ireland’s poverty, have relied
on this argument, and Conservatives also have used it chiefly to discredit
Mr. Gladstone, who extended the Income-tax to Ireland; but the argument is
false in itself, and cannot be made the basis of sound financial
legislation. As a matter of fact, taxes on articles of general
consumption, on the necessaries of life, fall heavily on the poor, and the
argument of over-taxation applies in great degree to the poor in the great
towns of England, and to the poor in Ireland. If, then, the poor of
Ireland are to be relieved, the poor of England must be relieved also, and
identical taxation would still be the result. The statesman must find a
truer gauge by which to measure the relative capacity of the two countries
to bear taxation.
Again, during the long discussion on financial relations, much time has
been wasted in criticising that provision of the Act of Union, which fixed
the respective contributions of Great Britain and Ireland to the common
purposes of the Empire at the proportion of fifteen and two. That
proportion, in fact, was not exacted, and it may be put aside as
theoretical.
A summary of recent financial history in Ireland will enable the reader to
understand the circumstances in which Parliament takes up the problem of
Home Rule. Towards the close of the eighteenth century the condition of
Ireland was bad. England, selfish to the last degree in her commercial
policy, treated Ireland as little better than a conquered country, and
ruined her commercially and industrially by restrictions on her trade.
Protestants and Catholics joined in patriotic resistance, and wrung at
last freedom of trade in 1779, and an independent Parliament in 1782.
Thenceforward for a time the financial administration of Ireland was
regulated in accord with Irish interest. The country prospered financially
under the new order. Large sums were spent in promoting agriculture and
manufactures, and in grants for public works, and the country’s finance
was restored to order. During the years of peace, 1782 to 1793, Ireland
contributed on the average £584,000 to military—that is to the common
expenses of the Empire. The military expenditure of Great Britain in the
peace years, 1786 to 1792, averaged £5,142,000. Ireland was then a most
important factor in the State, for the population was to that of England
in the proportion of nearly one to two.
Pitt desired to establish reciprocity between the two countries and at the
same time to obtain from Ireland a contribution on a fixed principle for
the Navy, wise proposals worthy of the Minister; but the two Parliaments
could not agree. That of England bowed to the pernicious claims of
ascendancy and to the supposed interests of the commercial classes. Pitt
was defeated. The French Revolution and a war lasting nearly twenty-two
years followed, and in the midst of the war broke out the Rebellion of
1798. If the charge of the Irish debt at the outbreak of the war and the
average civil expenditure of Ireland between 1793 and the Union is
deducted from the average income of Ireland, the surplus constituted
Ireland’s real contribution to the common expenditure and it averaged
about £900,000 a year. The year 1800 marks a great change of policy. Pitt
put an end to the independent Parliament of Ireland and passed the Act of
Union, bad in itself, and worse by the means which made it law. It sought
to make the two countries one for all purposes of revenue, and that object
was kept steadily in view.
From 1800 to 1817 the United Parliament imposed taxes on both England and
Ireland, but the Irish Treasury collected the Irish Revenue, defrayed the
local expenditure of Ireland as sanctioned by the United Parliament and
remitted the surplus in aid of the war expenditure. The greater part of
the burthen fell upon Great Britain, but Ireland’s share drained greatly
her resources. Her revenue which had produced £1,837,000 in 1793, reached
£7,305,000 in 1817, an increase of 300 per cent., while her contributions
during the years of war to the common expenditure calculated on the
principle adopted in the preceding paragraph amounted to about £3,000,000.
During the same period Great Britain contributed to the war out of revenue
about £43,000,000 on the annual average.
In 1817 the Irish Treasury was abolished, the exchequers of the two
countries were united, the British and Irish Revenues were paid alike into
the one exchequer. The Irish local expenditure was defrayed from that
exchequer under the check of the English Treasury, and the United
Parliament imposed and repealed Irish taxes. From 1817 for many years
Ireland fared badly. Her representatives in Parliament served her ill.
Tories, Whigs, and independent members failed alike in making England
understand Irish needs, and the British Parliament neglected Irish
interests. The years between 1817 and 1842 mark the first period of Irish
financial history dating from the war. It was a period of stagnation. Both
countries required time to recover from the calamity incident to war; but
the recovery would have been more rapid, even under heavy taxation, had
not progress been retarded by the unwise legislation of protection, which
fettered enterprise and restricted commerce. This evil, however, injured
Great Britain more than Ireland. In 1824 the separate Customs Departments
of the two countries were abolished. The trade between Great Britain and
Ireland was treated as coasting, and from that time no official record has
been kept of goods exported from and imported into both countries.
In 1817 the taxes levied in England were similar to, but not identical
with, those levied in Great Britain. Ireland was exempt from many taxes
levied here, and in some cases, such as spirits, she paid a lower rate of
duty. A period of profound peace enabled the government to remit taxation;
but those remissions were chiefly made in deference to British interests,
and in making them Irish interests were little considered. The truth of
this statement is illustrated by the Revenue Returns. The estimated
“_true_”(100) Revenue of Great Britain fell from £51,500,000 in 1820 to
£46,250,000 in 1840, although population, and with it consumption, had
increased. The “_true_” Revenue of Ireland in the same period rose from
£5,250,000 to £5,500,000. But it must be added that many of the taxes
remitted were taxes _not levied in Ireland_. In respect to them Great
Britain had to a certain extent a claim to prior consideration.
The second period of financial history extended from 1842 to 1869, a
period of rapid recovery and of great prosperity in Great Britain, but not
so in Ireland. Famine fell upon her in 1846, and thinned her population,
followed by emigration, which showed how poverty pressed upon the poor,
while the Fenian movement of 1866 showed how widespread was the spirit of
unrest. A highly cultivated Liberal statesman was Lord-Lieutenant during
several years of the period. An interesting diary which he kept leaves the
impression that the leading statesmen of the day were not reading the
signs of the times, or gauging the gravity of a growing movement. This was
hardly the period to choose for increasing the taxation of Ireland,
nevertheless in 1853 Mr. Gladstone extended the Income-tax to Ireland,
counterbalancing it in part by the remission of loans granted to Ireland
during the famine—a very insufficient compensation. But the Income-tax did
not touch the poor, and as I have pointed out there was no reason why the
wealthy and comparatively well-to-do classes in Ireland should not
contribute to the public expenditure like their brethren in Great Britain.
This plea, however, does not extend to the spirit duties which during 1853
Mr. Gladstone and Mr. Disraeli raised to the level of the spirit duties in
Great Britain. That tax undoubtedly was paid in great measure by the
poorer classes.
In one direction there was improvement. In 1842 Sir Robert Peel acceded to
power, and inaugurated at once the policy of liberating trade which has
conferred such benefits on Great Britain, and in a minor degree on
Ireland. The era of prosperity which followed the adoption of the Free
Trade policy increased greatly the consuming power of the people, and
enabled Mr. Gladstone to largely reduce duties on the principal articles
of food consumed by the poorer classes. For example, he and his successors
reduced the tea duties from 2s. 2d. to 6d. and abolished the sugar duties.
This was undoubtedly the true method of remedying the evil which underlies
the plea that identical taxation wronged Ireland. I have shown that that
evil was caused not by identical taxation, but by heavy taxes on food,
which oppressed alike the poor of Ireland, and the more numerous poor of
Great Britain. The policy adopted met the local grievance, by modifying if
not removing the general grievance, and this remedy of the general
grievance was only rendered possible by the growing prosperity of Great
Britain. The poor of Ireland had therefore their full share of the benefit
caused by the prosperity of Great Britain. The historian must give full
weight to this consideration when he criticises the increase of the Irish
spirit duty. There can be little doubt as to the verdict of history, if
the choice lies between cheap whisky and dear food on the one side, and
cheap food and dear whisky on the other. Between 1860 and 1900 the Customs
and Excise duties which were reduced exceeded the like duties increased by
some £22,000,000 a year, and Ireland had her share in the reduction.
In 1864 a Committee of the House of Commons inquired into the taxation of
Ireland, but it led to no useful result. In other directions the monotony
of neglect continued. The Government and Parliament paid little or no
attention to Irish needs. Ireland was the Cinderella of the three
kingdoms, and fared accordingly.
The third period ranged from 1869 to 1896. It might be termed the Home
Rule period, for it includes the two Home Rule Bills of Mr. Gladstone, but
it includes also other great measures relating to Ireland. Indeed, during
the whole period of seventeen years Ireland engrossed, to a great degree,
the attention of Parliament. The change was very remarkable. Up to 1869
England was indifferent to, or bored by, Ireland. She was stupid. She did
not trouble herself to learn Irish wants, and she could not understand the
spirit of Irish nationality. The Devon Commission, a Conservative
Commission, appointed by a Conservative Minister, Sir Robert Peel,
reported that 2,500,000 people in Ireland were on the verge of starvation,
and gave warning of the evils, the perils, inherent in the Irish land
system. England took no notice of either warning. The famine answered the
first in cruel fashion. The second was pigeon-holed. Wise in her own Home
administration, wise of late years in her Colonial administration, she
knew no remedy for Ireland but force, and force is no remedy. She
accepted, almost as matters of ordinary administration, Coercion Acts
which marked with a black stigma most years of the century, unable to see
that that fact alone was a disgrace to her statesmen, her Parliament, and
her people.
Early in the Home Rule days I heard a great English statesman say: “The
first duty of a Government is to bring the people into agreement with the
law; till it does that it fails in its first duty, and England has
hitherto failed to bring Ireland into agreement with the law”—a truth well
and forcibly expressed.
In 1869 a man of great power and eloquence, wide views, and firm resolve
became Prime Minister. He realised the habitual injustice of England to
Ireland, and he saw the perils impending. By his strength of will he
forced an unwilling country and an indifferent Parliament to devote its
serious attention to Irish questions. He disestablished the Church. He was
defeated on Irish education, but he laid the foundation of a land
settlement by conferring on the tenants, in spite of strenuous opposition
from the Tories, the rights of fair rents, fixity of tenure, and free
sale, and his measures were marked by an earnest desire to deal liberally
with Ireland to the utmost extent consistent with equity to the British
tax-payer. Finally, when Ireland sent to Westminster more than four-fifths
of her representatives pledged to Home Rule, he accepted this expression
of the national will, and became a convert to the principle of Home Rule.
I deal later in detail with his two Home Rule Bills of 1886 and 1893,
which were defeated, and I need only here deal with finance of the third
period, apart from the provision of the Home Rule Bills.
Before Mr. Gladstone was converted to Home Rule, Home Rule finance
attracted little attention. That eminent statistician, Sir Robert Giffen,
made, indeed, in 1885, a singular suggestion to the _Statist_ newspaper,
viz., that the Irish landlords should be bought out at the cost of the
Imperial Exchequer, and that the rent charge, which would then be payable
by the purchasing tenant, should be given to an Irish authority, in lieu
of payments from the Exchequer, for the internal administration of
Ireland.
Again, Sir Robert wrote an article in the _Nineteenth Century Review_,
March, 1886, a few weeks before the introduction of the first Home Rule
Bill, to show how unimportant, from a financial point of view, Ireland had
become to us, and to suggest the expediency of devising some form of
Government under which the special needs and circumstances of that country
would receive more and better attention than they did under the existing
arrangements. His figures might be, in some instances, doubtful, perhaps
even incorrect, but it can hardly be denied that he made good his point.
Sir Robert was, we see, greatly in advance, not only of the ordinary
Briton, but of financial experts generally, both as regards the land
question and also that of the Government of Ireland.
Perhaps the most able thinker and writer on economic questions in the
second half of the nineteenth century was the late Mr. Bagehot, and, in
proof of the general indifference to Irish questions in England, it is
notable that his collected works, ranging over a wide field in politics
and literature, contain no paper on the government or condition of
Ireland. Yet he had witnessed O’Connell, the famine, the depopulation of
Ireland, the Committee on Irish Taxation, and the Fenian outbreak in 1866.
In 1890 Mr. Goschen, as Chancellor of the Exchequer, in the Conservative
Government, moved for a Committee of the House of Commons to consider the
financial relations of England, Scotland, and Ireland. The Committee was
instructed to inquire into the equity of their financial relations in
regard to the resources and population of the three kingdoms. It had
hitherto been much discussed whether Ireland could be regarded as a
separate financial entity from the rest of the kingdom. The Irish Taxation
Committee of 1864, of which Sir Stafford Northcote and Mr. Lowe were
prominent members, had refused to admit the principle of such separate
entity, and that had been generally the Conservative contention. But, in
the reference to the Committee of 1890, the Conservative Government
accepted the principle. The Home Rule Bills of 1886 and 1893 were, of
course, based upon it. Thus, 1890 marks an important advance in the
discussion, and thenceforward, by consent of both parties, the separate
“entity” was established.
After the rejection of the second Home Rule Bill the Liberal Government
appointed a Royal Commission to inquire into the financial relations of
the two countries and their relative taxable capacity. The Report of this
Commission deserves attention, because it was exhaustive in its inquiries,
because the information it laid before the public has since that time been
generally used in discussion, and because many of the recommendations made
were far-reaching and suggestive. There was, as might be expected, great
difference of opinion. The Conservative members and the Nationalist
members made their several Reports. Attention, however, may be directed to
one of the Reports, because it received the concurrence of the Nationalist
members and of three English members—one of whom was a very high, if not
the highest, financial authority in the City of London, the two others
retired Civil Servants who had been at the head of two great Departments
of the State. Their conclusions were as follows:
“(1) That Great Britain and Ireland must, for the purpose of this
inquiry, be considered as separate entities.
“(2) That the Act of Union imposed upon Ireland a burthen which,
as events showed, she was unable to bear.
“(3) That the increase of taxation laid upon Ireland between 1853
and 1860 was not justified by the then existing circumstances.
“(4) That identity of rates of taxation does not necessarily
involve equality of burthen.
“(5) That whilst the actual tax revenue of Ireland is about
one-eleventh of that of Great Britain, the relative taxable
capacity of Ireland is very much smaller, and is not estimated by
any of us as exceeding one-twentieth.”
The three English members above mentioned presented a separate Report,
recording at length their views on the questions referred to the
Commission. I call attention to it, because reference is frequently made
to it in the Report of Sir Henry Primrose’s Committee, recently appointed
to advise the Government upon the new Home Rule Bill.
They pointed out that the whole taxation of Ireland increased from
£2,900,000 in 1820, to over £6,600,000 in 1893, and that by far the larger
part of this increase was derived from taxes on articles of consumption
which fell most heavily on the poor; that the increase resulted only
temporarily in an increase in the contribution to common expenditure which
rose from £3,691,000 in 1820 to £5,396,000 in 1860, to fall to £1,966,000
in 1893, for the greater part of the increase had been absorbed in
increase of Irish civil expenditure. This local expenditure amounted in
Ireland to 19s. 7d. per head, while in Great Britain it only amounted to
11s. 9d. If the cost of administering Ireland had been reduced to the like
cost in Great Britain, a saving of nearly £2,000,000 would have been
realised.
They thought that the expenditure in Ireland was conducted on a scale
totally unsuitable to that country, that the industrial taxation, borne in
Ireland mainly by the consumers of dutiable articles, was heavier than the
masses of the Irish people ought to bear, that Irish taxation ought not to
exceed one twentieth part of taxation of the United Kingdom, but they
doubted whether Great Britain would consent to alter her whole system of
taxation to meet the evil to Ireland. They objected totally to seeking a
remedy in increased grants and doles, and they suggested that Ireland
should levy her own taxes and provide for her own expenditure.
Lastly, in answer to the objection that Ireland might impose new Customs
duties, they held that to be unlikely, since Ireland rather than Great
Britain would suffer by such a policy, because the market of Great Britain
is of greater importance to Ireland than that of Ireland to Great Britain.
The Royal Commission reported in 1896. The question of the financial
relations remained then in practical abeyance till 1907. In that year the
Government of Sir H. Campbell-Bannerman proposed to establish an Irish
Council under the Lord-Lieutenant entrusted with the control and direction
of certain administrative Departments. A sum was to be charged on the
Consolidated Fund to enable the Council to meet the expenditure of the
transferred Departments. This sum was fixed for the first five years at
£4,164,000. This was simply a measure to decentralise administration, and
to admit Irishmen to a share in Irish administration. It did not, however,
obtain support in Ireland, and in consequence it was not pressed.
We come now to the last stages in the story of Irish finance. The
Government of Mr. Asquith decided to introduce the Third Home Rule Bill in
the session of 1912, and in 1911 they appointed a Departmental Committee
under Sir Henry Primrose to advise them. The able report of that Committee
has been laid before Parliament, and it brings our information on the
financial relations up to the latest date:
They state the “true” Irish Revenue in 1895-6 to have been £8,034,000.
They estimate “true” Revenue 1910-11 at 10,300,000.
Increase £2,266,000.
The “true” local expenditure in Ireland, 1895-6, £5,938,000.
The “true” local expenditure 1910-11, 11,344,000.
£5,406,000.
Thus whereas Ireland in 1895-6 made a contribution of £2,066,000 to
Imperial Expenditure, in 1910-11, not only did she make no contribution to
Imperial Expenditure, but the British taxpayer was called on to contribute
more than £1,000,000 towards Irish local expenditure. But Irish local
expenditure is increasing under the heads of old-age pensions, land
purchase, and expenses of the Government which will be established in
Ireland under Home Rule. The Committee in consequence estimate:
The Irish local expenditure in 1913-14 at £12,400,000.
The Irish Revenue at 10,350,000.
Deficit £2,050,000.
for which provision must be made in the forthcoming measure.
In order to meet the existing deficit, the Committee suggest that the
British Exchequer should take over liability for all old-age pensions
which had been actually granted at the date when the Home Rule Bill comes
into operation. They estimate that liability at £3,000,000 a year,
gradually, of course, diminishing. If necessary, the liability in whole or
part of the Irish Constabulary Pensions (£400,000) might also be
transferred to the British Exchequer. They advise that the obligation of
Ireland to contribute to the Imperial expenditure should be affirmed, but
that a settlement of the amount of the contribution should remain in
abeyance; and lastly, that the guarantee of the Imperial Exchequer in
respect of the Land Stock should remain, but that means should be taken to
secure regular payment of the sum due from Ireland to the National Debt
Commissioners.
I shall contrast later the recommendations of the Committee with the
actual provisions of the Home Rule Bill.
I will now compare the finance of the three Home Rule Bills which have
been submitted to Parliament, those of 1886, 1893 and 1912.
THE BILL OF 1886
Mr. Gladstone made it an essential condition of his plan that there should
be an equitable distribution of Imperial charges and that Ireland should
pay her fair proportion to the common expenses of the Empire. In 1885 that
contribution was represented by the surplus of Irish Revenue remaining
after deduction of the expenditure in Ireland on Irish services. He
calculated in 1886 that the surplus above described provided a
contribution by Ireland to Imperial expenditure equivalent to £2 where
Great Britain contributed £23. This proportion contrasts with Mr. Pitt’s
arrangement in 1800 that Ireland should pay £2 where Great Britain paid
£15. Mr. Gladstone proposed in future that where Great Britain paid £28,
Ireland should pay £2, a concession of moment to Ireland, and he supported
it on the following ground: he measured the taxable capacity of the two
countries by (1) the Income-tax returns (2) the death duty returns, and
(3) the valuation of property. Income-tax gave a proportion of £38 to £2,
but he held Income-tax an imperfect test, because it was paid in Ireland
on a lower valuation than in Great Britain and because many Irishmen
receive dividends on securities which pay Income-tax in England. He
thought that £34 to £2 would be nearer the true proportion. He held the
death duties to be a better test and they showed a proportion of £26 to
£2, while the valuation, lower in Ireland than in Great Britain, gave a
proportion of £24 to £2. Arguing from these premises, he held that his
proposed contribution of £2 to £28 was an equitable and even a generous
arrangement, justified by the necessity of starting the Irish Legislative
body with a balance to its credit.
A table is given showing how the contribution was appropriated.
The amount to be contributed by Ireland to Imperial expenditure being thus
ascertained, the more difficult part of the problem remained, viz., how to
provide the fund out of which the contribution would be payable and how to
secure its payment. The plan which commended itself to him as insuring the
fiscal unity of the three kingdoms, and giving absolute security to the
British Exchequer, left the imposition and collection of Customs and
Excise duties with the Imperial Government, and under Imperial control.
This plan was to be carried into effect in the following manner. The
Customs and Excise were to be levied under Acts of the Imperial
Parliament, and were not to be subject to the control of the Irish
Legislature. The Irish Legislature with that exception could impose taxes
on Ireland. Under the Land Purchase Bill, which was to be introduced
concurrently with the Home Rule Bill, a Receiver-General was to be
appointed, into whose hands the Customs and Excise Duties and other taxes
were to be paid, including taxes imposed by the Irish Parliament. The
Imperial Receiver-General, having thus in hand all Imperial and local
taxes levied in Ireland, would in the first instance pay out of them the
Imperial charges. Apart from the Imperial charges there were other
charges, strictly Irish, such as Judges’ salaries, pensions, the salaries
of existing civil servants, for the security of which the Bill provided.
The Bill bound the Irish Parliament to impose taxes sufficient to meet
such charges, and ordered them to be paid by the Receiver-General. The
Receiver-General was to keep an Imperial and an Irish account. The Irish
charges would of course be paid from the latter account. He was to carry
the Customs and Excise Duties in the first instance to the Imperial
account, and the local taxes to the Irish account, transferring to the
Irish account the surplus of Custom and Excise, after payment of the
Imperial contribution. He was subsequently to pay the balance remaining on
the Irish account to the Irish Exchequer.
An Imperial Court of Exchequer was established in Ireland to watch over
the observance of the Act, and all Revenue acts were to be tried and
defaults punished in that Court. The Bill further enabled the Irish
Parliament to take over the Irish Post Office, if it should so desire,
though it was Mr. Gladstone’s opinion that it would be for the convenience
of both countries if the Post Office were to remain under the control of
the Postmaster-General.
The Imperial contribution payable by Ireland was not to be increased for
thirty years, though it might be reduced if the Imperial charge for Army,
Navy and Imperial Civil expenditure for any year should be less than
fifteen times the contribution paid by Ireland. In that case one-fifteenth
of the diminution could be deducted from the Imperial contribution.
Existing Civil Servants were retained in their offices at existing
salaries. If the Irish Government were to desire their retirement, they
would be retired on pensions. On the other hand, if at the end of two
years the officers themselves desired to retire, they could do so,
receiving pensions on the usual abolition of office scale.
Supposing the Home Rule Bill to have become law the account of Irish
finance would have stood thus:
RECEIPTS.
Imperial taxes:
Customs £1,880,000
Excise £4,300,000
Total £6,180,000
Local taxes:
Stamps £600,000
Income-tax 6d. £550,000
Total £1,150,000
Non-tax revenue:
Post Office £1,020,000
Total: £8,350,000
EXPENDITURE.
Contributions to Imperial expenditure on basis of one-fifteenth of
Imperial expenditure:
Debt charges £1,466,000
Army and Navy £1,666,000
Civil charges £110,000
Total £3,242,000
Sinking Fund on one-fifteenth of capital of debt £360,000
Constabulary(101) £1,000,000
Local Irish Civil charges £2,510,000
Collection of revenue:
Imperial taxes £170,000
Local taxes £60,000
Non-tax revenue £604,000
Total £834,000
Surplus £404,000
Total £8,350,000
When it is said that in 1885-1886 Ireland was paying to Imperial
expenditure in the proportion of £2 to £23, that proportion was calculated
on the whole gross Imperial expenditure, whereas Mr. Gladstone calculated
the proportion of £2 to £28 on a military expenditure materially cut down,
for he excluded from it charges which ought strictly to be called war
charges, a modification very favourable to Ireland and reducing
considerably her true contribution.
He made another concession of great importance. He proposed to credit
Ireland with the entire receipts levied in Ireland, but that was not a
true test of the amount of taxation paid by Ireland. There are goods which
pay duty in Great Britain, but which are consumed in Ireland, so
conversely there are goods which pay duty in Ireland but are consumed in
Great Britain. For instance, spirits, porter, and tobacco are largely
exported duty paid from Ireland and are consumed in Great Britain, and Mr.
Gladstone calculated that the excess of duties so paid in Ireland on goods
consumed in Great Britain amounted to no less a sum than, £1,400,000 a
year. That is of course British Revenue, and in striking a true account
between the two countries it should be credited to Great Britain, not to
Ireland. The Home Rule Bill, however, gave it to Ireland, a direct grant
of £1,400,000(102) from Great Britain to Ireland, and if that amount be
subtracted from the contribution of £2 to £28, it leaves the proportion £2
to £52 instead of £2 to £23.
If we strike a balance between the contributions to be paid by Ireland to
Great Britain under the Home Rule Bill, and the grants to be paid to
Ireland, we shall arrive at the following result:
Contribution from Ireland to Great Britain £3,602,000
Grants from Great Britain to Ireland:
Duties paid in Ireland on goods consumed in Great Britain
£1,400,000
Grant toward the Constabulary £500,000
Total: £1,900,000
Net contribution from Ireland to Imperial purposes (or nearly in the
proportion of 2 to 60) £1,702,000
If the Imperial contribution _actually_ paid by Ireland in 1885 be equated
on like principle, the proportion stated above at 2 to 23 will be
similarly reduced.
The Bill was defeated in the House of Commons, and therefore its
provisions did not undergo the test of scrutiny in Committee.
The provisions of this Bill illustrate the difficulties which attend the
financial severance of the Irish from the British Government. High
authorities thought at the time that Mr. Gladstone, in 1886, should have
proceeded in the first instance by way of Resolutions establishing the
principles upon which the Bill would be subsequently founded, and there is
much to be said for that view. The main principles of the measure would
have been established in the first instance after free and full
discussion, and the details would have been adapted later to the
principles then laid down. Mr. Gladstone himself, in his reply upon the
Second Reading (June 7th, 1886,) indicated a course somewhat similar in
its result. He said:
“If an interval is granted us, and the circumstances of the
present session require the withdrawal of the Bill, and it is to
be re-introduced with amendment at an early date in the autumn, it
is our duty to amend the Bill with every real amendment and
improvement, and with whatever is calculated to make it more
effective and more acceptable for the attainment of its end.”
It must be remembered that there had been no sufficient time for the
collection of the data on which an effective measure could be founded, and
the collection of those data was a task of great difficulty, for the
Departments did not possess them. The Government came into power in
February, and the Bill was introduced on April 6th; thus there was no real
opportunity for testing the value of the data collected in that short
interval, or for gauging beforehand objections both to the principles and
details of the scheme adopted, and experience proved that some of the
objections were valid, though probably not insurmountable.
The scheme was based on two principles which would be especially liable to
criticism:
(1) For thirty years Ireland was to contribute to Imperial charges as they
then existed a fixed annual sum.
(2) The Customs and Excise duties as _collected_ in Ireland (_i.e._, not
the “true” revenue) were to be credited to the Irish Government.
The first of these principles would have been closely scrutinised in
Committee, but probably in the main it could have held its ground. In the
first place, it reduced considerably the Imperial contribution, consisting
hitherto of the balance of revenue after payment of Irish charges. As Mr.
Gladstone pointed out, the amount of military expenditure, on which the
proportion of 2 to 28 was calculated, was considerably reduced, and Great
Britain had to pay the difference, and so far the change was favourable to
Ireland. In the second place, Irish expenditure was increasing, and under
the existing system the balance of Irish revenue, constituting the Irish
Imperial contribution, was, as the sequel lamentably proved, diminishing,
and, a result not foreseen at the time, the wasteful and unsound finance
which financial partnership entailed upon Ireland ere long extinguished
it. The grant of autonomy was an effective check on this continued waste,
otherwise the contribution of a fixed quota would soon have reduced the
Irish Government to insolvency.
The grant to Ireland of the _collected_ not the _true_ duties of Customs
and Excise was open to grave objection. It presented her with the duties
levied in Ireland on articles consumed in Great Britain, but if at any
time the habits of the people, such as decrease in drinking, reduced this
practical gift—estimated at £1,400,000, or if changes in law or practice
transferred the payment of these duties from Ireland to Great Britain, the
financial equilibrium of the scheme would be destroyed. This was a real
danger as under the bonding system the British trader could, if he
pleased, pay these duties in Great Britain.
The decision that Ireland was not to be represented at Westminster led to
a clumsy device for giving Ireland a voice in the Imperial Parliament when
Irish interests were involved. This would be the resource if a war
contribution had to be obtained.
The scheme of 1886 can only, therefore, be regarded as a draft to be
tested and modified in discussion and to form the basis of a revised and
amended scheme.
THE BILL OF 1893
Mr. Gladstone introduced the second Home Rule Bill in February, 1893. In
the discussion he pointed out how incredibly wasteful the method of
governing Ireland was; the Irish Civil Government grants, which had
averaged from 1833 to 1837 £762,000, had risen between 1888 and 1892 to
£4,042,000, and the cost of local government in Ireland was twice as much
per head as the like cost in England.
Under the scheme of 1886 Irish representatives were not to sit in the
Imperial Parliament, but the Government found that under existing
financial arrangements there must be financial connection, unless
Parliament was prepared to face a different system of trade laws between
the two countries, and provision must be made for that connection. Mr.
Gladstone, therefore, reversed the decision of the Government in 1886. He
proposed to retain Irish representatives at Westminster, reduced in number
to 80. They were not to vote on purely British questions, but in his
opinion it would be difficult to make that distinction as far as the mass
of business was concerned. The Irish representatives would not vote on any
tax which was not to be levied in Ireland or on any grant of money for
other than Imperial purposes as scheduled in the Bill. By this means
Ireland would have a voice, if emergency, such as war, rendered fresh
taxation necessary.
In the interval between 1886 and 1893 knowledge had been gained to some
extent as to what constituted the “true” revenue of Ireland, and the
Inland Revenue thought it possible to levy in Great Britain the Excise
duties collected in Ireland on articles consumed in Great Britain and
_vice versa_. These Excise duties represented the greater part of the sum
of £1,400,000, previously described as the difference between duties, so
to speak, belonging to Ireland and duties collected in Ireland, a
difference estimated in 1893 at £1,800,000. If Ireland retained that
difference, as contemplated by the scheme of 1886, it was equivalent to a
grant from Great Britain to Ireland. On the other hand the Customs were
not able to make the separation thought possible by the Excise.
With these facts before him Mr. Gladstone made an entire change in the
financial scheme. As in 1886, he held that Ireland must make a proper
contribution to Imperial expenditure, but he abandoned the principle,
adopted in 1886, of obtaining that contribution by a quota of
one-fifteenth of Imperial expenditure, that is a contribution of £2 by
Ireland to £28 by Great Britain. He retained instead the whole of the
Customs revenue collected in Ireland as the Irish contribution. He
proposed that Great Britain should pay any excess of the charge of
constabulary over £1,000,000, out of the contribution, the balance
representing Ireland’s share of Imperial expenditure. He justified the
change on the ground that as the management of trade was reserved to the
Imperial Government, the management of the Customs so closely connected
with trade should be Imperial also. The Customs were expected to produce a
net revenue of £2,370,000. He estimated it as equivalent to about 4 per
cent. of Imperial expenditure whereas the actual contribution was about 12
per cent. The contribution would, of course, vary as the net Customs
revenue rose or fell. On the other hand the Irish Government were to take
all the rest of the “true” revenue of Ireland and to defray out of it all
local Irish expenditure, including a fixed sum of £1,000,000 towards the
cost of the constabulary and Dublin police, which were temporarily to
remain Imperial services. Customs and Excise duties were to be regulated
and collected by the Imperial authority which was also to fix postal
rates; but all other taxes were to be imposed by the Irish Legislature.
The interests of existing judges, and existing civil servants, and of her
constabulary, which remained under the control of the Viceroy, were
secured. The constabulary would be gradually replaced by a force under the
control of the Irish authority. Two Exchequer Judges would be appointed to
guard observance of the Act, and appeals lay to the Privy Council which
would try on the motion of the Viceroy, or of the Secretary of State, any
question as to invalidity of an Irish Act. These arrangements might after
fifteen years be subject to revision in pursuance of an address to Her
Majesty from the House of Commons or the Irish Legislative Assembly.
The receipts and expenditure of the Irish Government under this scheme
would have stood as follows:
RECEIPTS.
(1) Excise true revenue exclusive of licences £3,220,000
(2) Local taxes:
Stamps, Income-tax, Excise licenses £1,495,000
(3) Postal revenue £740,000
(4) Other non-tax revenue £205,000
Total £5,660,000
EXPENDITURE.
(1) Civil Government charges, except Constabulary £3,210,000
(2) Collection of Inland revenue £160,000
(3) Postal service £790,000
(4) Contribution to Irish Constabulary £1,000,000
Total £5,160,000
Surplus £500,000
The Bill passed the House of Commons, but the financial clauses were
greatly recast in Committee. The changes originated in the fact that the
Inland revenue had overestimated the “true” revenue of Excise by a very
considerable sum, and the error would have reduced to an insignificant sum
the free starting balance for the Irish Government provided in the
original scheme. Mr. Gladstone decided in consequence not to keep the
Customs revenue as Ireland’s contribution to Imperial expenditure, but to
let that revenue fall into the common stock of Irish revenue and to take
out of that common stock one third of the “true” Irish revenue. This third
was to cover Ireland’s contribution to Imperial expenditure together with
one third of the cost of the Irish constabulary and Dublin police. Ireland
was to meet all her local charges out of the remaining Irish revenue. The
Imperial Government was to retain for six years the imposition and
collection of all taxes; the Irish Government having only supplementary
powers of taxation. At the end of six years the Irish contribution was to
be revised, and Ireland would be empowered to impose taxes other than
Customs and Excise, and she would collect taxes, the Customs alone being
retained by the Imperial authorities. The “true” revenue derived from the
Customs and Excise was to be ascertained by a Joint Committee of the
Treasury and the Irish Government. The financial result of these changes
is shown in the following figures:
(1) Customs:
Revenue collected in Ireland £2,136,000
_Add_ estimated allowance for duties paid in Great Britain on articles
consumed in Ireland £266,000
Total estimated Irish revenue £2,402,000; Amount Payable to Irish
Exchequer Two-Thirds £1,601,000
(2) Excise:
(_a_) Spirits. Revenue collected in Ireland £4,112,000
_Deduct_ duties ascertained to be paid in Ireland on spirits consumed
in Great Britain £1,872,000
Total £2,240,000
(_b_) Beer. Revenue collected in Ireland £811,000
_Deduct_ estimated allowance for duties paid in Ireland on beer
consumed in Great Britain £187,000
Total £624,000
(_c_) Licence duties collected in Ireland £194,000
Total estimated £3,058,000; payable to Exchequer £2,039,000
(3) Stamp duties collected in Ireland £707,000 estimated, £471,000
payable
(4) Income-tax collected in Ireland £552,000 estimated, £368,000 payable
(5) Crown Lands amount estimated to be due to £65,000 estimated, £43,000
payable
Total £6,784,000 estimated, £4,522,000 payable
(6) Miscellaneous Irish Revenue £138,000 estimated, £138,000 payable
Totals £6,922,000 estimated, £4,660,000 payable
Irish Expenditure, 1892-3.
(1) Civil Government charges (exclusive of Constabulary and salary of
Lord-Lieutenant, but inclusive of local charges met out of
local taxation account) £3,123,000
(2) Constabulary charges (£1,459,000) two-thirds of £973,000
(3) Estimated deficit on postal account £52,000
Total £4,148,000
Surplus £512,000
Total £4,660,000
The schemes of 1893 again illustrate the difficulties inherent in a
severance of the two Exchequers. The revise left more points open for
difference between the two Governments, and it had the serious defect of
revision after the short interval of six years.
The original scheme was far preferable. The retention of the Customs as
the Imperial contribution reduced opportunity for conflicts of opinion to
a minimum, and the interval of fifteen years before revision left ample
time for the new Irish Government to put its house in order. I venture to
think it would have been wise to make good the error in estimating the
“true” revenue of Ireland (which invalidated the scheme) by an Imperial
Grant, at all events for a time. Under the scheme the Imperial Government
provided £500,000 for the constabulary. If it had granted £300,000 or
£400,000 more, the net Imperial contribution derived from the Customs
would have been reduced to say £1,400,000, not a large sacrifice for the
end in view—reconciliation with Ireland.
The Bill as amended passed the House of Commons but was thrown out in the
Lords. This Parliament refused to accept Mr. Gladstone’s proposals to give
Ireland Home Rule, and nineteen years elapsed before a third Home Rule
Bill was submitted to Parliament.
In the three schemes of 1886 and 1893 the Imperial contribution was very
similar, perhaps somewhat larger in 1893. In all three schemes, also, the
net gain to the British Exchequer was reduced by the grant from that
Exchequer of £500,000 to the cost of the Irish Constabulary.
The difficulty of devising a financial scheme fairly simple and workable,
which was experienced in 1886 and 1893, has been disappointing, but not
discouraging. It was inevitable but it can be surmounted.
THE BILL OF 1912
In 1911, Mr. Asquith pledged the Government to take up again in the
ensuing session the question of Home Rule. In 1910 the Conservative Party,
at least a considerable part of it, in presence of a probable dissolution
on the Parliament Bill, showed, as in 1885, a disposition to coquette with
Home Rule, but the movement came to nothing, and the Party settled into
determined opposition to the Home Rule policy, submitting themselves to
the lead of the Ulster extremists, who preached sedition in no measured
terms. In other respects, the prospects of Home Rule are fairly
favourable. England, apart from Scotland, Wales, and Ireland, still
returns a majority opposed to Home Rule, but public opinion does not show
any signs of vigorous or violent opposition as in 1886. The Liberals, the
Irish, and the Labour Party are united in its favour. The passing of the
Land Acts is rapidly removing the agrarian evil, and the landlords have
not the same cause for anxiety as formerly. The grant of Local Government
is working well, and in spite of much poverty the condition of the people
is improving. Lastly, the passing of the Parliament Act has made it
possible, in spite of opposition in the Lords, to pass a Home Rule Act
within the limits of the present Parliament.
On April 11th, the Prime Minister introduced the Government Bill. He
regarded it as the first step in a comprehensive policy of devolution. It
retains permanently at Westminster 42 Irish Members, so that Ireland will
have a voice, not only on questions in the Imperial Parliament which
concern Ireland, but on questions of Imperial interest, such as war and
peace. The Bill of 1886 reserved to the Imperial Parliament certain
questions. The Bill of 1893 also made necessary reservations, though its
tendency was towards more complete autonomy; but in the interval between
1893 and 1912 great changes have taken place, and the Imperial Government
finds itself hampered by new liabilities. The Old-Age Pension Act, the
Land Purchase Act of 1903, the National Insurance Act, and Labour
Exchanges have added very greatly to Irish expenditure. On the other hand,
the contribution to Imperial expenditure, unluckily for the British
taxpayer, has disappeared. The problem is, therefore, a new one, and the
Government solves it, at all events for the present, by keeping in its own
hands a large number of Services, as will be seen hereafter.
In 1885-6 Ireland contributed a surplus of considerably more than
£2,000,000 to Imperial expenditure; in 1895-6, £2,000,000.(103) The
Government estimates the true revenue of Ireland in 1912-13 at
£10,839,000; and the expenditure on Irish services at £12,354,000.
Therefore the new Irish Government will start with a deficit of
£1,515,000. That deficit is now charged on the British taxpayer. It
results from British management of Irish finance, for, on the one hand,
Irish revenue is limited by the relatively limited means of Irish
taxpayers; on the other hand, England has regulated Irish expenditure on
the lavish scale of her own expenditure.
The Government lays down certain principles on which Home Rule finance
will be based:
(1) Ireland must manage her own finance and must have powers of
taxation consistent with leaving to the Imperial Government a
field of taxation sufficiently wide for Imperial needs.
(2) The Budgets of the two countries must not hamper each other.
(3) Ireland must bear the cost of any increase arising hereafter
on Irish services, but she must benefit by economies in those
services.
(4) She must have power to reduce taxation if her economies permit
it.
The scheme which will give effect to these principles may be described as
follows.
In the first place the Imperial Government retains in its own hands the
imposition and collection of all Irish taxes, the Post Office duties alone
excepted, which will be transferred to the Irish Government. _Normal_
increase in Irish Revenue will not be applied to Irish services. It will
reduce the deficit. The Irish Government, however, will have supplementary
powers of taxation.
An Irish Exchequer and an Irish Consolidated Fund will be created, and an
Irish Auditor-General appointed. Further, a joint Exchequer Board,
consisting of Treasury and Irish officers, will adjust the accounts
between the two Exchequers, based upon what it declares to be the actual
cost of Irish services when the Act comes into operation. If the Irish
Government, using its supplementary powers of taxation, increases or
reduces taxes, the Exchequer Board will vary accordingly the sum to be
paid by the British to the Irish Exchequer on account of Irish
expenditure, and it will determine the effect of any other changes taking
place in the relations between the two Exchequers. Lastly, if and when
normal increase of Irish revenue puts an end, during a period of three
years, to the existing deficit, the Exchequer Board will make a report to
that effect, and the financial arrangement between the two countries will
then be reconsidered in order to secure a fair contribution from Ireland
to Imperial expenditure.
The Government, as I have stated, estimates the revenue of 1912-13 at
£10,839,000. That sum represents the whole “true” revenue of Ireland,
viz., taxes and miscellaneous, £9,485,000; Post Office Revenue,
£1,354,000. The Imperial Government adds to this revenue of £10,839,000 a
free gift of £500,000 at the cost of the British taxpayer, in order to
give the Irish Government a fair start. The total Irish income in the year
1912-13 will therefore be £11,339,000.
On the other side of the account, the Imperial Government retains in its
own hand various Irish Services, termed in the Bill “_Reserved Services_,”
described later. It transfers from the British to the Irish Exchequer the
sum allotted to Irish Expenditure (outside the Reserved Services),
estimated in 1912-13 at £5,462,000, the cost of the Postal Service
£1,600,000,(104) and £500,000, the free gift mentioned above, making a
total transfer of £7,562,000.
If in the future the sum of £5,462,000 allotted to Irish Expenditure and
the free gift of £500,000 are exceeded, the Irish Legislature must provide
the necessary ways and means.
The transfer of £7,562,000 from the British to the Irish Exchequer leaves
a balance on the British Exchequer on the Irish Account of £3,777,000(105)
free to that extent to meet the charge of the Reserved Services.
These Reserved Services are:
(1) Old-age Pensions £2,664,000
(2) National Insurance Labour Exchange £191,500
(3) Land Purchase £761,000
(4) Constabulary £1,377,500
(5) Collection of Revenue £298,000
Total £5,292,000
Therefore the excess of Irish Expenditure in 1912-13 over Irish Revenue as
provided results in a deficit of £1,515,000 payable by the British
taxpayer, and if the free gift of £500,000 by the British taxpayer
included in the provided revenue be added, the total charge on the British
taxpayer in 1912-13 on account of Irish Expenditure is £2,015,000.
This annual gift of £500,000 is after three years to diminish yearly by
£50,000, until a minimum of £200,000 is reached, which will eventually
represent the gift of Great Britain to Ireland, until prosperity or good
management enables Ireland to pay her own way, and at the last to make a
contribution to Imperial Expenditure.
The Government estimates a normal growth in Irish Revenue of £200,000 a
year, which, to the extent it is realised, will reduce the deficit payable
by the British taxpayer.
The Imperial guarantee on Irish Land Stock is to continue in full force.
EFFECT OF FUTURE MODIFICATION
If the Imperial Parliament increases or reduces taxation, the change will
not affect the Irish Budget, for the transferred sum will remain
unaltered.
The Irish Parliament will have power to reduce taxes levied in Ireland. It
will also have power to impose taxes. It may add at will to Excise duties,
and if so the Customs duties on beer or spirits must vary with the Excise
duties. It may levy new duties which do not interfere with the Imperial
system of taxation—for instance, a house duty, or establishment licences.
It may add to Income-tax or death duties, and also to Customs duties
(other than beer and spirits) provided that the addition does not exceed
10 per cent. of their yield. This 10 per cent. resembles the “centimes
additionels” which are levied in foreign countries on direct taxes, and
are applicable there to local expenditure. But the Irish Parliament must
not trench on Imperial taxes. This increase or reduction of Irish duties
will not affect the British Exchequer, but it will increase or diminish
the “sum transferred” to the Irish Exchequer.
The Irish Parliament will not have power to tax articles not subject to
Imperial taxes for the time being. If in the exercise of its power it
differentiates Customs or Excise duties in the two countries, there will
be a differential duty on such goods passing from one to the other.
Public Works Loans granted before the passing of the Home Rule Act will
remain under the management of the Imperial Government. Future loans will
be managed by the Irish Government.
The Irish Parliament will have power to raise loans on the security of the
“transferred” revenue, sufficient provision being made for interest and
sinking fund. If the Irish Government desires it, the Exchequer Board
above-mentioned, may issue an Irish Loan, deducting the charge from the
sum “transferred” to Ireland.
Such are the provisions of the Bill. It cannot be denied that they appear
complicated, but they will be found less so in practice. The machinery of
financial administration in a great State is necessarily complicated, and
a radical change in that machinery involves a multitude of changes in
detail for which the reforming Act must provide. Root and branch opponents
of Home Rule naturally criticise those provisions, and exaggerate with
_Ulster_ vehemence the administrative difficulties which attend radical
change, but the advocates of great measures, while recognising
difficulties can take juster views of their extent, and they know that
they can be surmounted.
In the first place an expert body (the Exchequer Board) will interpret the
financial provisions of the Act. It will consist of two members appointed
by the Treasury and two by the Irish Government, and a chairman appointed
by the Crown. Their decision is to be final. On these questions there is
therefore no power reserved to the Imperial Government, which might cause
friction. The Chairman should probably be a man of judicial rank. Possibly
a case might arise in which a revision of the Board’s decision would be
needed. So far this important section of the machinery is not complicated.
In the next place the Imperial Government remains responsible and liable
for all the “reserved” services. Here again there is no complication.
_Thirdly_, the Customs and Excise Clauses appear complicated, but they are
for the most part machinery clauses, common to Revenue Acts. _Fourthly_,
the Free Trade Clause offends of course the Unionist-Protectionist party,
but its merits need not be discussed here. I venture to doubt where
Ireland is likely to set up a Protectionist policy against Great Britain.
Our market is too important to her. If such a policy were established,
history tells us that British Protectionists will not consult Irish
interests. Lastly a certain, but not a great, inconvenience will attend
the taking of an official record of goods passing between the two
countries essential to determining the true revenue of Ireland.
Thus the apparent complications of the Bill dwindle greatly on
examination. The Bill of 1912 is no doubt much less simple than that of
1893 as introduced by Mr. Gladstone, but that Bill was not, however, so
simple as it appeared. It was based on the principle of autonomy, but it
retained great powers in Imperial hands. In fact it gave autonomy as far
as autonomy was practicable. Circumstances have changed much since 1893,
and the problem is now in some respects easier. The pivot and crux of Mr.
Gladstone’s scheme, the Imperial contribution, has, for the time,
disappeared.
Sir Henry Primrose’s Committee adopted unanimously and unhesitatingly the
principle of simplicity. They recommend that the power of imposing and
levying all taxation in Ireland, subject to reservations on questions of
trade and of foreign relations should rest with the Irish Government. They
urge that that policy accords with the general policy of Home Rule, as
removing causes of friction, as avoiding need for revision of the
arrangement (excepting a future question as to an Imperial contribution),
it terminates the extravagance inherent in the partnership, and makes the
responsibility of the Irish Government for Irish administration complete.
The Committee examine the objections to the grant of complete power of
taxation, viz., that (1) it would break up the fixed unity of the realm;
(2) that it would impair facilities of trade between the two countries;
(3) and that it is at variance with the principle of a Customs Union, said
to be a feature common to federations.
On the first point the Committee reply:
(1) That in their view the Irish Government should have power to
impose Customs duties only for the purpose of raising revenue, and
that the Imperial Government should reserve questions of tariff,
and foreign relations. Thus fiscal unity on important points would
be maintained. For sixty years from the Union separate machinery
existed for the collection of different rates of duty in the two
countries. If Union could dispense with fiscal unity, _a fortíorí_
can any less close form of association do so.
(2) The Committee do not attach importance to the second
objection. The Custom House does not seriously trammel the
convenience of traders between this country and the Continent, and
it was found endurable when the variance between England and
Ireland was more formidable than now.
(3) On the third objection the Committee argue that a Customs
Union is indispensable, when the boundaries of federated states
form a ring fence. It is not indispensable when, in a case like
that of England and Ireland, the two countries are separated by
sea.
These reserves diminish, of course, the severe simplicity of the scheme,
and the Committee’s answers to objections admit some inconvenience to
trade, but a great change like that of Home Rule must have some drawbacks,
and in the opinion of Home Rulers, the end to be gained far more than
compensates for slight inconveniences which attend its execution. It is
certain, moreover, that, whatever may be the measure adopted, it will be
necessary to take means for ascertaining the “true” Revenue of Ireland,
and to that extent there must be some slight interference with trade.
I agree with the Committee in their preference for the simplicity of
complete autonomy.
Sir Henry Primrose and his colleagues agree to a great extent with a
Minority Report of the Financial Relations Committee (1896), signed by
Lord Farrer, Mr. Bertram Currie and myself. The advantages of complete
autonomy are obvious, and I cannot avoid a regret that it has not been
possible to adopt it. I note, however, that the greatest Irish authority
on Irish Government, Lord Macdonnell, though in favour of Home Rule, is
entirely opposed to the grant of fixed autonomy to Ireland.
We must not misunderstand the relations of the Committee to the
Government. They were not appointed to draw a Home Rule Bill. They were to
ascertain and consider the fiscal relations between Ireland and other
parts of the United Kingdom as they exist to-day, paying special regard to
the changes which have taken place in revenue and expenditure since 1896,
the date of the Report of the Royal Commission; to distinguish between
Irish Local Expenditure and Imperial Expenditure in Ireland; and to
consider, in the event of Home Rule being established, how the revenue
required to meet the necessary expenditure should be provided. The
function of the Committee was, therefore, purely financial. They had to
collect financial information, a necessary preliminary to a consideration
of the Bill, and to advise as to the method of providing the revenue
required. They had no mission to examine the political conditions which
must be satisfied by a Bill designed to effect a Constitutional
Revolution. That was the function of the Cabinet. The Committee, limiting
itself to its instructions, recommended the method of raising revenue
which they thought wisest, independently of any but financial
considerations. The Government consider the question from a wider point of
view. Their measure must be founded on policy as well as finance. They do
not adopt the Committee’s recommendations. They decide to retain for a
time, more or less indefinite, a closer relation between the two financial
systems. Much as I should like greater simplicity, a study of their
measure leads me to the conclusion that its provisions are, in the main,
wise. Let us then consider how far the provisions of the actual Bill
satisfy the conditions needed to insure the success of Home Rule.
In the first instance, and for an uncertain number of years, the Imperial
Government keeps a tight hand upon the Irish Government. It reserves large
powers enabling it to reject, postpone, or test the validity of Irish
Bills. It regulates and levies all taxes, and fixes postal rates. It
secures the interests of various classes of public servants, and retains
temporarily the police under its own control. It fixes Irish Local
Expenditure at a certain sum, and it issues that sum yearly to the Irish
Government together with a free gift of £500,000 a year for three years,
falling gradually to a permanent gift of £200,000. _Normal_ increase of
Irish Revenue is appropriated to reduce the deficit to be borne by the
British Exchequer. If, therefore, the Irish Government increases its own
expenditure beyond the fixed sum allotted to it, it must find the revenue
required, and for that purpose powers of taxation are given to it.
The nursing hand of the mother is, in fact, present at every point of the
Bill, but it must be remembered that a hostile step-mother may, at any
time, replace the kindly mother.
There is no escape from the conclusion that these reservations restrict
the autonomous power of the Irish Government. On the other hand, the whole
spirit of the Bill marks the greater part of them as temporary. The Bill,
in fact, confers autonomy by gradual steps, and holds out prospects that
eventually the relations between the two countries will be simple and
workable. At the outset, and for some time onward, the Irish Government,
freed from liability for the costly “reserved” services which the
“partnership” has bestowed or inflicted on Ireland, will occupy itself
with the organisation of its own home administration. It starts with no
previous experience of administration, and it is clearly desirable that it
should proceed by steps, gathering experience as it goes. Its field of
work at first should not be too wide, and six years is not too long a
period for it to reform and reconstitute its administrative organisation.
This is its first duty, and it undertakes it under favourable conditions.
In six years the constabulary will be transferred automatically from the
charge of the Imperial Government to that of the Irish Government with the
sum allotted to its support.(106) That sum will be increased by any saving
which accrues to the British Exchequer from the transfer, and in
determining that sum regard is to be had to the _prospect_ of any increase
or decrease in the cost of the service, expected to arise from causes not
being matters of administration.
In the next place, the Irish Parliament may, at any time, on twelve
months’ notice assume the legislative and executive control of three
reserved services, viz., Old-age Pensions, National Insurance, and Labour
Exchanges. If they are taken over, the sum transferred with them will be
determined on the same principle as in the case of the constabulary.
Autonomy, therefore, in regard to these services is granted to the Irish
Government, and they will only be retained under the control of the
Imperial Government, if, and so long as the Irish Government desires it.
The Postmaster-General said in his speech on the introduction of the Bill
that the old-age pension charge is now practically at its maximum,
gradually diminishing, and the Primrose Committee (paragraph 54), estimate
the charge at the time when the Bill becomes law at £3,000,000. The
question then arises what will be the amount transferred, if the Irish
Government, seeing its way to more economical administration, were to give
at once the twelve months’ notice and take over the service at the end of
a year. It would not, I presume, be £2,664,000 the charge at which the
Treasury in its “outline of financial provision” (paper 6154), estimated
it in 1912-13, but £3,000,000, modified to some extent by the prospect of
reduction.
The cost of National Insurance and Labour Exchanges is estimated by the
Treasury in 1912-13 at £191,500, increasing by £300,000 in ten or fifteen
years. If the Irish Government were in like manner to take them over, the
amount transferred would, I presume, be £190,000 with a sum added
representing the prospect of increase.
In the event then of those services being taken over by the Irish
Government, they would considerably exceed their charges as estimated by
the Treasury for 1912-13, and the excess would entail a corresponding
increase of charge on the British taxpayer, to be counterbalanced
gradually by the normal increase of Irish revenue, which the
Postmaster-General estimates, with due reserve, at £200,000 a year, and by
the gradual reduction (£50,000 a year) of the free gift of the British
taxpayer from £500,000 to £200,000.
It must be remembered that these increased charges on the British taxpayer
are not the result of Home Rule, they are an inheritance from the
“partnership.”
When these services are transferred from the Imperial to the Irish
Government, the Imperial Government will only retain control over the land
purchase charges and the regulation and collection of taxes. The former
will apparently remain permanently with the Imperial Government, involving
an estimated increase of charge on the British taxpayers of £450,000 a
year (Treasury Paper 6154). With regard to the latter, it is clearly
desirable that at the outset the Imperial Government should be responsible
for levying and collecting taxes. If difficulties on that subject should
arise in parts of Ireland, the Imperial Government will settle them with
an authority which the new Irish Government cannot possess. Clause 26,
however, holds out a possibility hereafter of extended autonomy to
Ireland. If for three years the revenue of Ireland exceeds the expenditure
on Irish services by the Imperial and Irish Governments, the Parliament of
the United Kingdom will revise the financial provisions of the Home Rule
Act, with a view to securing a proper contribution from Irish revenues to
Imperial expenditure, and extending the powers of the Irish Government
_with respect to the __ imposition and collection of taxes_, and if
extension were then granted in a liberal spirit, there would be little
left to desire.
CONCLUSION
I have thus traced the gradual progress towards autonomy contemplated by
the Act. It justifies the conclusion that the Government favours autonomy,
but seeks to achieve that end gradually and tentatively. With the path
thus marked out, it lies with the nation to pursue steadily and resolvedly
the great end of reconciliation with Ireland.
It is impossible to consider Home Rule in its financial aspect, without
casting a look backward and comparing the result which would have followed
the grant of Home Rule in 1886 with the result which has followed its
refusal. In the former case Ireland would have been reconciled long ago.
She would have been mistress in her own house, and it would have been her
interest as well as her policy so to conduct her administration as to
insure the success of her autonomy. She would have had full opportunity
for reorganising her establishments on a reasonable scale, substituting
for an expensive military police an ordinary police, with a saving, as Mr.
Gladstone once pointed out, of £900,000 a year. She would have been able
to maintain the reasonable contribution to Imperial expenditure which it
is her duty as an integral part of the United Kingdom to provide. It would
have been worth the while of Great Britain to make a great sacrifice at
the outset to attain this solution of the Irish problem, and long before
now the solution would have been complete.
The Conservative Party refused Home Rule. They have held power during
sixteen out of the twenty-five years elapsed in the interval, and they
have had full opportunity to try their alternative policy. That policy has
not indeed been the twenty years of “resolute Government,” a euphemism for
coercion, advocated by Lord Salisbury. They have tried a policy of bribes
and doles, with the result that the Imperial contribution of over
£2,000,000 made in 1885 has been dissipated, and that Irish local
expenditure alone shows now a deficit of £1,500,000 and a steadily
increasing deficit. In short, a total burthen of between £3,500,000 and
£4,000,000 has been inflicted on the British taxpayer. The Leader of the
Conservatives has now announced with splendid audacity that if the
“partnership” continues, if the Conservatives are allowed still to
mis-rule Ireland, and to maintain the baleful spirit of ascendancy, they
will endeavour to develop in every possible way the resources of Ireland.
That is to say, the policy of bribes and doles is to continue at the
expense of the British taxpayer. Let the British taxpayer note that, and
let him note also that the Conservative Party will find the ways and means
for these bribes and doles not by taxes on the wealthy, but by taxes on
the food of the people. Ireland will accept the doles; but she will not be
satisfied. She will still clamour at our gates for Home Rule, as she has
clamoured since 1886, and she will get Home Rule, but the burthen on the
British taxpayer will be then how much greater than now?
Appendix
This Report of the Primrose Committee, the Treasury outline of financial
provisions, and the speech of the Postmaster-General on the introduction
of the Bill offer some vague estimates, perhaps more properly guesses, of
Irish finance, one of which, Old-age Pensions, extends to twenty years. It
may be interesting to throw these figures together, not (God forbid) as an
estimate, but as illustrating opinion prevalent among the experts engaged
in the preparation of the Bill.
Income:
Estimate for the year 1912-1913 10,839,000
_Add_ free gift of £500,000 to be reduced in nine years to 200,000
The Postmaster-General’s Estimate of £200,000 normal yearly increase
of revenue in twenty years 4,000,000
Income in twenty years (round figures) 15,000,000
Expenditure:
Sum transferred to Ireland 1912-1913 5,462,000
Post Office, 1912-1913 1,600,000
Old-age pensions (Treasury Paper) 2,800,000
Land purchase (£761,000 in 1912-1913 increased by £450,000) 1,211,000
Insurance £191,500 in 1912-1913 increased by £300,000 491,500
(Say) 11,564,500-11,600,000
Balance available for Constabulary, collection of Revenue, Imperial
contribution and Irish services.
It must be recollected that the Irish Government has to provide for
increase of Irish services beyond £5,462,000 by taxation.
VI.—The Judiciary, The Police, And The Maintenance Of Law And Order. BY
THOMAS F. MOLONY, K.C., HIS MAJESTY’S SECOND SERJEANT-AT-LAW, CROWN
COUNSEL FOR DUBLIN.
(1) _The Judiciary_
The Supreme Court of Judicature in Ireland is at present constituted as
follows: The Lord Chancellor, the Lord Chief Justice, the Master of the
Rolls, the Lord Chief Baron of the Exchequer, two Lords Justices of
Appeal, two Judges of the Chancery Division and six Puisne Judges of the
King’s Bench Division. On the occurrence of the next vacancy in the office
of Lord Chief Baron the office is to be abolished and a Puisne Judge
appointed instead. Since the year 1897, six judgeships have been abolished
in Ireland, and a large saving thereby effected. The duties formerly
discharged by the Probate and Matrimonial Judge, the Admiralty Judge and
the two Bankruptcy Judges have been transferred to the King’s Bench
Division and the number of the Puisne Judges of the King’s Bench Division
has been reduced by two.(107) With every desire for economy it is believed
that the Supreme Court Bench cannot be further reduced without interfering
with the efficiency of the public service. The Lord Chancellor of Ireland
is appointed by having the Great Seal delivered to him by the Crown, and
all the other Judges are appointed by His Majesty by Letters Patent. There
are also in Ireland five Recorders and sixteen County Court Judges, who
are appointed by the Lord-Lieutenant. The County Court Judges in Ireland
are also Chairmen of the Quarter Sessions of their respective counties. No
Judge of the Supreme Court or of the County Court can be removed from his
office except upon the address of both Houses of Parliament. Under the
Home Rule Bill the position of existing judges is to remain unchanged, and
future judges are to be appointed by the Irish Executive, and can only be
removed by a joint address of both Houses of the Irish Parliament which
gives them the same independence that the existing Judges now enjoy. Under
the Bill of 1893, the Imperial Executive was to have the appointment of
Judges for six years after the passing of the Act, but there seems to be
no justification for the suspensory period and it has been wisely dropped
from the present measure. The Irish Executive will not be “irresponsible
and inexperienced” as Mr. J. H. Campbell says in “Against Home Rule—The
Case for the Union” (page 54), but will be composed of men who for many
years have served in the Imperial Parliament, and are well qualified from
their ability and experience to at once take up the reins of Government.
(2) _The Police_
There are two distinct police forces in Ireland. The Dublin Metropolitan
force(108) has jurisdiction over the Dublin Metropolitan District, which
includes the whole of the City of Dublin and portion of the County. It
consists of 2 Commissioners, 7 Superintendents, 25 Inspectors, 187
Sergeants and 1,060 Constables, and costs £154,181 per annum.(109) Portion
of the cost is met by a police tax of 8d. in the £ on the rateable value
of the district, but a substantial balance—in the present year amounting
to £96,466—is borne by the Treasury. The Royal Irish Constabulary(110) has
jurisdiction over the rest of Ireland, including Belfast. It consists of 1
Inspector-General, 1 Deputy Inspector-General, 3 Assistant
Inspectors-General, 37 County Inspectors, 195 District Inspectors, 235
Head Constables, 2,068 Sergeants and 8,182 Constables. It costs £1,413,069
per annum, the whole of which is borne by the Treasury.(111) There is a
fundamental difference between the two forces. The Dublin force has been
founded on the model of the London Metropolitan Police, and is essentially
a civilian force. It is admirably trained in police duties, and has always
discharged its duty to the satisfaction of the citizens. The Royal Irish
Constabulary is drilled and trained in the use of the revolver, rifle, and
sword in the same manner as are the armed forces of the Crown, and is in
every essential a military organization. There is a reserve force always
kept at the Depôt in the Phœnix Park which at a moment’s notice is
available for service in any part of Ireland. The Bill proposes that the
control of the Dublin Metropolitan Police be transferred immediately to
the Irish Executive, but that the Royal Irish Constabulary shall remain
under Imperial control for six years. An Irish Executive which could not
control the police force of its own metropolis would be in a ridiculous
position, and no believer in self-government can object to the immediate
transfer of the Dublin force to the Irish Executive, and indeed, many
think that the same course ought to be adopted with regard to the Royal
Irish Constabulary. It has for a long period, been a constant source of
complaint that the numbers of the Royal Irish Constabulary, and its
consequent cost, are entirely out of proportion to the wants of the
country. It was created in a time of agrarian disturbance which has long
since passed away, and now that Ireland has been for many years far more
free from serious crime than either England or Scotland, it is absurd that
in Ireland it should cost 6s. 8d. per head of the population for police,
while an equally efficient force can be provided, in England for 3s. 4d.
per head, and in Scotland for 2s. 5d. per head. In Ireland there is one
policeman for every 365 inhabitants, while in England and Wales there is
only one for every 727 inhabitants.(112)
(3) _Law and Order_
The maintenance of law and order is the first duty of a Government, and if
it could be proved that the proposed measure of Home Rule for Ireland
would lead to crime and disorder, the cause would lose many of its more
prominent adherents. To those, however, who are interested in the
administration of the law—and particularly the criminal law—it is obvious
that Home Rule will have the effect of still further diminishing crime,
and will also enable considerable saving to be effected in the sums now
spent on law charges and criminal prosecutions. At the present time, and
indeed for many years past, Ireland has been practically crimeless. The
Judges at the Spring Assizes, 1912, were unanimous in describing all the
counties in Ireland, except two, as peaceable and orderly, and free from
serious crime. In two counties—Fermanagh and Carlow—there were no cases
whatever for trial, and it was only in Galway and Clare that
dissatisfaction was expressed with the present state of affairs, and even
in those counties the affected districts comprised a very limited area.
The following table taken from the report of the General Prisons Board for
Ireland for 1910, shows how the Government have been able to close prisons
in consequence of the diminution of crime and reduction in the number of
prisoners:
“The number of prisons and bridewells,” says the report, “under
the control of the General Prisons Board on the 1st April,
1878—the date when the local prisons and bridewells were
transferred to the Board—and now is as follows:—
1878. 1910.
4 Convict 1 Convict
Prisons. Prison.
38 Local 1 Joint Convict
Prisons. and Local
Prison.
95 Bridewells. 15 Local
Prisons.
6 Bridewells.”
The Unionist Associations of Ireland have recently published a handbook
called “The Home Rule ‘Nutshell’ Examined by an Irish Unionist” in which
it is stated (p. 69) “The only crime that is complained of in Ireland is
the organized crime due to the inspired agitation of the United Irish
League. Without that Ireland would be _comparatively crimeless_.” No proof
has ever been given that the United Irish League has taken any part in the
organization of crime, and beyond all doubt in many instances it has been
instrumental in preventing it. It cannot, of course, be denied that in
certain parts of the country instances of boycotting and cattle driving
occur, but such occurrences will certainly not increase, and are more
likely to cease altogether when Ireland is governed by an Irish Executive
chosen by the people, and responsible to the people for the good
government of the country. The Unionist complaint is, not so much that an
Irish Executive will not be able to enforce the law, but that it will be
unwilling to do so in certain cases, and will exercise a dispensing power
as to whether the decrees of the Courts shall or shall not, in particular
cases, be enforced.(113) If it were within the power of the Executive to
prevent the police or military from being called upon to protect the civil
officers of the law in the discharge of their duties, it would, no doubt,
be possible to paralyze the administration of justice, but it is well
settled that a sheriff, or anybody charged with the execution of a writ of
a competent Court, has the right to require the assistance of constables,
and indeed of any of the liege subjects of the Crown, and that the
Executive has no power to prevent such assistance being given. This was
laid down by the Common Law Judges in England in the well-known case of
“_Miller_ v. _Knox_”(114) and still more emphatically by the Lord Chief
Baron (Palles) of the Exchequer in Ireland in the case of the Woodford
prisoners at the Connaught Winter Assizes of 1886.(115) The Lord Chief
Baron said:
“I desire it to be thoroughly understood that the execution of the
decrees of the judiciary in this country does not depend—as it
does not, I believe, in any civilised country—upon the will of the
Executive who, for the moment, may happen to be in office. Into
the execution of our writ we cannot allow any question of party
politics to enter. If the law be wrong, let the law be altered by
the Legislature, and the judges will, at the moment, carry out the
law as altered. They cannot look beyond the law. They cannot, in
the administration of that law, contemplate alterations at a
future time. Their sworn duty is to give to him who asks it that
which he is entitled to by law. It is not competent to them, or to
any other person, to go behind the law and to ask whether, in his
own opinion, or in the opinion of others, the law is just or
unjust. With them the only consideration must be that is the law.
They are bound to pronounce the law. From that pronouncement there
is an appeal to the highest court in the realm. But when judgment
is once given—the judgment of a court of law, acting within the
scope of its jurisdiction—it is not competent to anyone in this
kingdom, I care not how high he may be, to say that a writ
regularly issued on foot of that judgment shall not be executed,
or to prevent those who by law are bound to aid in its execution
from giving that aid and assistance which the Constitution
requires.”
In 1893 the County Inspector of the Royal Irish Constabulary in County
Kerry, by the direction of the Executive, refused the assistance of the
Constabulary to the Sheriff of the County, when he desired to execute
certain writs of the superior Courts in the night time. The Sheriff
thereupon applied to the Queen’s Bench Division for an attachment against
the County Inspector, and the Court unanimously made the order.(116) The
Lord Chief Justice (Lord O’Brien) in giving judgment said (p. 238):
“I wish to point out that, according to the opinion of all the
judges who were called in to advise the House of Lords in the case
of _Miller_ v. _Knox_,(117) refusal, unjustified by the occasion,
as, in my opinion, the refusal in the present case was, to protect
the sheriff in the execution of his duty, when protection is
sought by him, in the honest exercise of his discretion, to enable
him to discharge his duty in the execution of civil process, is
punishable, by indictment, by criminal information, and, as was
established in _Miller_ v. _Knox_ by the summary process of this
court. The official, be he Under Secretary or Chief Secretary (I
do not, of course, refer to his Excellency the Lord-Lieutenant),
who directed Mr. Waters not to comply with the sheriff’s demand
for protection, has rendered himself amenable to the criminal law,
is liable to be tried by indictment, to have a criminal
information exhibited in this court against him, or to be attached
by the summary process of this court.”
There can be no doubt, therefore, that the Irish Executive will be bound
to give assistance and protection to sheriffs or other lawful officers
executing any legal process of a competent Court, and if such assistance
is not given the Courts will be able to assert their supremacy in the
various ways pointed out by the Lord Chief Justice.
A great deal of capital has recently been made in the Unionist Press on
account of the promulgation of the _Motu Proprio_ “_Quantavis
Diligentia_.” It has been asserted that this decree applies to Ireland and
will necessarily embarrass catholic officials in the discharge of their
public duty. The Roman Catholic Archbishop of Dublin has, however, fully
explained the meaning of the decree, and has shown that it does not apply
to any country where there has prevailed against it, as there has long
prevailed against it in Ireland, a custom invested with the conditions
required by the Canon Law.(118) He further says (p. 36):
“The excommunication of the clause _Cogentes_, is not decreed
against all who oblige lay judges to compel the attendance of
ecclesiastics in their courts. It is decreed against those who do
this in violation of the Canon Law. There must first, then, be a
canonical offence. It is to that offence that the clause
_Cogentes_ attaches the penalty of excommunication. But, there
being no canonical offence in the discharge of their duty by our
Catholic Judges, and Catholic Law Officers of the Crown, our
Catholic Police Magistrates and Catholic Policemen, and our laity
in general—who were so ludicrously paraded before the public a few
weeks ago as the unhappy victims of the _Motu Proprio_—there is in
their case no offence to which an ecclesiastical penalty can be
attached, and so, no ecclesiastical penalty is incurred.”
Nothing is to be feared in Ireland from the _Motu Proprio_ “_Quantavis
Diligentia_,” and there is really no necessity for the restrictions
contained in Section 3 of the Bill, although no person will object to
their insertion as a matter of precaution. The Unionists profess to be
alarmed at the prospects of Ireland under Home Rule; but when their fears
are analyzed they are seen to be illusory, and when their arguments are
considered they are found to amount to a single assertion that a great
measure of reform is not to be passed, and the will of the people is not
to prevail, because a small minority is irrevocably opposed to any measure
which will give to the Irish people power to manage their own affairs.
When Unionists complain of an occasional case of boycotting or
cattle-driving—and it is almost all they have to complain of now—they
should read Lord Durham’s report on Canada in 1838, and they will see how
favourably Ireland, even in its darkest hour, contrasts with the Canada of
that day. Lord Durham adopted the courageous policy of trusting the
people, and his policy brought peace, prosperity and contentment to that
country. Mr. Asquith’s great measure is an embodiment of the same policy,
and will be attended with the same results, and indeed the situation could
not be better summed up than it was by Mr. John Redmond in the House of
Commons three years ago.(119)
“As it happened in Canada, so it will happen in Ireland—when you
throw responsibility on the shoulders of the people, and not till
then. Then respect for law will arise in Ireland; then confidence
in the administration of justice will arise; and when that day
comes, I am perfectly convinced that Ireland will become the most
peaceable and most law-abiding, as she is to-day the most
crimeless, part of your Empire.”
VII.—The Present Position Of The Irish Land Question. BY JONATHAN PIM,
K.C.
INTRODUCTORY
The following chapter contains an account of the change which has been
wrought by legislation in the position of the Irish tenant farmer and
labourer during the last forty years. The change is large—the benefit and
improvement equally great. The task is, however, not much more than half
completed. The holdings purchased, or agreed to be purchased, by tenants
under the Purchase Acts amount to about 378,000. There remain to be
purchased about 227,000. The Congested Districts Board have done good work
in the congested districts, but what has been done has hardly gone beyond
the experimental stage. The experiments have, to a large extent,
succeeded, but their very success enlarges the vista of work to be done in
the future. The work of the District Councils in providing better
dwellings for agricultural labourers is perhaps more nearly completed.
Nevertheless, much still remains to be done.
Under the second section of the proposed Bill “to amend the provision for
the Government of Ireland,” the “general subject matter of the Acts
relating to Land Purchase in Ireland” is reserved. This would seem to
include the Land Purchase work of the Congested Districts Board, but it is
doubtful if it would include any part of the Labourers’ Acts. Taken in
conjunction with the whole scheme of the Bill, and especially with its
financial provisions, the wisdom of this reservation is evident. That work
which has gone so far and has been so beneficial in its operation should
be stopped, or even hampered, in its development, would be an injury
which, even the undoubted benefits a Home Government will bring with it
would scarcely out-weigh. No doubt Ireland, if thrown altogether on her
own resources, could, after a few years’ time, continue the work of land
purchase and could finally complete it, but the interregnum would be most
mischievous. All those who had not purchased would be dissatisfied, and
the Irish Government would be subjected to a pressure which they would
find it hard to resist. The danger would be two-fold. On the one hand the
Government might attempt to raise money at an excessive rate of interest
and would thereby embarrass themselves financially; on the other hand an
attempt might be made to force the Government to pass a “Compulsory
Purchase Act” and to fix the price of purchase at a much lower figure than
could be obtained under a system of free agreement. The Imperial
Government itself runs no risk in reserving Land Purchase; on the
contrary, it will run less risk under Home Rule than it does now. At the
present moment, there is due to the Treasury a sum of about £71,000,000,
money advanced for the purchase of land. The amount of the annual
instalments payable on this sum is about £2,226,785, and on the 31st of
March, 1912, there was due for arrears the sum of £44,156.(120) The
purchase annuitants have up to the present discharged their obligations in
a most faithful and honest manner. There is not the slightest reason to
think that they will act differently in the future, but if, as some
political prophets seem to consider possible, they do, in the future,
strike against the payment of the instalments they themselves will be the
principal sufferers, for under the proposed Bill the Treasury may, out of
the sum to be transferred to the Irish Government, before making the
transfer, deduct each year the amount then due on account of purchase
annuities. This, if it happened to any large extent, would render fresh
taxation necessary—a contingency which would certainly not be desired by
the Irish Government. The proposed Bill does not contain any specific
provision giving power to the Irish administration, in the case of local
repudiation, to make the counties in which repudiation had taken place
repay to the Irish Treasury such sums as they had been forced to pay to
the Imperial Treasury. If such a provision were inserted, it would make
the position of the Treasury extremely secure.
When Mr. Gladstone introduced his first Home Rule Bill in 1886, the land
war was at its height. The country was, on the one hand, full of intense
and unreasoning bitterness and resentment, and, on the other hand, of
unreasoning terror of the consequences of the change of administration.
There are many persons, to-day convinced believers in the policy of Home
Rule, who do not regret that the Bill of 1886 failed to pass. Things were
not very much better in 1893, although, owing to the Land Act of 1881, the
land war was slowly losing its fierceness. Since then a slow, but no less
deep and far-reaching, change has passed over the tenant farmers of
Ireland. The bitterness and discontent which rightly possessed them during
the whole of the last century have at last given way to more kindly and
contented feelings. This is due in a great measure to the large remedial
measures passed first by Mr. Gladstone’s Government of 1880 to 1895, and
afterwards by the Conservative Administration between 1896 and 1905; but
it is perhaps even more due to the feeling which has slowly grown up among
the agricultural population that, at last, they are being listened to, and
that their wants are being attended to, imperfectly, no doubt, but still
with sympathy and with a desire to do what can be done to meet them.
Whatever dangers may attend the granting of Home Rule now, they will not
be the dangers which terrified and controlled public opinion in 1886 and
1893. Almost all the confusion, trouble, and crime of last century was due
to the vicious absurdity of the Irish land code and to the miserable
condition of the Irish tenant farmers produced thereby. That is now
changed and Ireland has become a quiet and comparatively crimeless
country. The danger which many foresee under a Home Government is of a
different kind. It is rather that the overwhelming peasant vote may render
the administration unduly parsimonious and so unwilling to place any
additional burden on the owners of land that a kind of political
stagnation may arise therefrom. Ireland cannot, of course, be kept
permanently out of the great movements of European thought, but, for the
moment, it may be safely alleged that in no part of Europe is property
safer.
Part I. The Fair Rent Acts and the Land Purchase Acts.(121)
Two Classes of Occupiers of Land in Ireland—Economic and Uneconomic.
The occupiers of Irish agricultural holdings are of two classes—those
whose farms are economic, and those whose farms are uneconomic. By an
economic holding is meant one of sufficient productive capacity to support
a family at a reasonable standard of comfort without help from outside
sources. One class holds land of a fertility, quantity, and situation that
enables the occupier to live at a reasonable standard of comfort out of
the produce, and pay a rent. The other class also lives on and partly out
of land, but land of a character, quantity, or situation that will not
support a family at a proper standard of living without extraneous help.
In the case of the first class, the fairness of the rent is the most
important consideration; in the case of the second, the land and rent are
often minor elements in the struggle for existence. The land is either so
limited in amount or of so unproductive a character that, without outside
help such as the wages of labour, or help from friends and relations, the
income of this class would sink below the line necessary for subsistence,
and actual starvation would ensue. It has often been pointed out that
agricultural rent is in many cases paid in Ireland for farms out of which
no true economic rent is earned. This means, as every economist knows,
that, were the ordinary and necessary cost of production, including the
remuneration of labour, deducted from the returns from the cultivation of
land, no surplus would remain for the payment of rent. Consequently, the
rent paid for such land is not true agricultural rent. It is more of the
nature of house-rent paid by working men in towns, who, out of the wages
that they earn in their various employments, spend certain portions in
food, clothing, and shelter. But the Irish peasant, who tries to support
his family on an insufficient farm, has not the advantage of having a
demand for his labour at hand. He has either to emigrate, to migrate, or
to live below the proper standard of decency and comfort. Consequently, he
is neither in the position of the farmer nor of the labourer. He is the
occupier of a piece of land on which he builds his cabin, and pays a rent
which is supposed to be agricultural, but which is really not earned out
of the land, but is paid out of whatever other supplementary income he is
able to obtain by working for wages in other countries; or by
contributions from outside sources. The Irish Fair Rent Acts are supposed
to deal only with agricultural holdings. The rents fixed under them are
intended to be agricultural and economic rents. It is evident to anyone
who has examined the circumstances of the small holdings of the West of
Ireland, that the rents assessed on them under the Land Acts in many cases
are not agricultural rents, but are payments more of the nature of site
rents, or the rents of non-agricultural holdings, which were not supposed
to be subject to the provisions of the Irish Fair Rent Acts at all. Were
the Land Acts strictly administered, unquestionably the greater portion of
the small holdings on the western seaboard and other parts of Ireland
would have been excluded, and applications to fix agricultural rents on
them would have been dismissed.
Confusion of Treatment of Occupiers of Economic and Uneconomic Holdings.
The importance of the view here put forward lies mainly in the fact that
until the passing of the Act of 1891, under which the Congested Districts
Board was created, no attempt was made to distinguish between the two
classes of occupiers of Irish land. The occupiers of economic and
uneconomic farms were subject to the same laws, and were treated in the
same manner. No attempt was ever made to distinguish between the man who
could make his rent out of his land and the man who could not. Both were
included in the Fair Rent provisions of the Act of 1881, as it was
administered, and a rent was assessed on what was practically the site for
a cabin as if it were a farm. This confusion of treatment of two different
problems renders it necessary to trace the evolution of the Irish Land
Acts if we are to understand intelligently the problem that presents
itself in dealing with congestion in Ireland, and it is accordingly
proposed to sketch shortly the steps by which Irish land legislation has
advanced, and how it at present deals with the various classes of holdings
that have to be taken into consideration.
Special treatment for the congested districts was not thought of in the
earlier remedial Land Acts. The Act of 1881, if strictly administered, as
we have seen, would have excluded most of the holdings in such districts.
After twenty years’ experience of this Act it was found that its
provisions, even though amended repeatedly, did not meet the special
difficulties. The Congested Districts were not withdrawn from the
operations of the various Land Acts—merely additional powers were given
for ameliorating the condition of the people in the defined localities.
The Land Act of 1881 is naturally regarded in Ireland as the sheet-anchor
of the peasant—as the Magna Charta of his rights. On the other hand, it
has been looked on by many land-owners as an unjustifiable invasion of
their rights, and it has often been blamed for results which it recorded
rather than caused. To justify that Act of 1881, we must understand the
preceding conditions that governed the tenure of land in Ireland.
Complaints against Irish rents are not confined to recent years or to the
last century. A continuous stream of emigration of Protestant dissenters
from Ulster went on during the early part of the eighteenth century, and
the Irish Government of the day was much concerned at losing so many of
their most loyal citizens. In 1729 the Lord-Lieutenant forwarded a report
on the subject to the King, which states:
“One great reason given by the people themselves for leaving the
Kingdom is the poverty to which that part of the country is
reduced, occasioned in a great measure, they say, by raising of
rents in many places above the real value of land, or what can be
paid out of the produce of them, if any tolerable subsistence be
allowed to the farmers using their utmost industry.”
Complaint was also made of the uncertain tenures, the short leases, and
“the usual method of late when lands are out of lease,” which was “to
invite and encourage all persons to make proposals and set them to the
highest bidder without regard to the tenants in possession.”
Relation of Landlord and Tenant in Ireland prior to 1860.
The relation of landlord and tenant in Ireland was, down to the year 1860,
based on tenure, not on contract. The old feudal tenures imported from
England were, during the last two or three centuries, modified and altered
by the existing Irish customs. The result was that a period of much doubt
and confusion arose, and an extraordinary collection of Acts dealing with
land was placed on the Irish Statute Book. In the reign of George III.
upwards of sixty of these Acts were passed for Ireland, while six sufficed
for England. The following reigns were equally productive in agrarian
legislation, and the condition of the occupiers became more and more
unsettled and unsatisfactory, and “wild doctrines,” to quote the words of
the eminent authors of a standard work on Irish Land Tenure, published in
1851, were agitated, including “extravagant demands for fixity of tenure
and compulsory valuation of rents.”
The relation of landlord and tenant, based on tenure that prevailed down
to the year 1860, gave no security of occupation to the tenant, and did
not protect his improvements, but the cost of ejectment and the legal
difficulties of proof that accompanied it exercised a powerful restraining
influence in preventing capricious eviction.
Position of Tenants under the Common Law as regards Eviction—in the case
of Leaseholds.
During the eighteenth and early part of the nineteenth centuries, while
many Irish tenants held under leases or written contracts the great
majority were tenants from year to year. Under the Common Law both in
England and Ireland, the right of the landlord to recover possession of
the land in the case of a lease or written contract depended on the
covenants and conditions in the contract, and no ejectment could take
place unless for “a condition broken.”
In the Case of Yearly Tenancies.
In the case of tenancies not created by writing—tenancies from year to
year—there was no power of eviction for non-payment of rent under the
Common Law. The tenant of such a tenancy could only be ejected by a notice
to quit, which notice must expire with the termination of the year of his
tenancy. This system caused much difficulty to the landlord, as the onus
lay on him of proving the commencement of the tenancy, and, frequently,
even where the tenant had failed to pay the rent, eighteen months passed
before possession could be obtained.
The Common Law of England and the tribunals that administered it
discouraged the forfeiture of tenants’ interests, and the landlord was
held strictly to the technical proofs required by law.
The Irish Ejectment Code—how it Pressed against the Tenant.
In Ireland a different course was followed. The Irish “Ejectment Code,”
which originated in the reign of Queen Anne, had for its object, to quote
an eminent Irish lawyer, the expediting and facilitating the eviction of
the tenant. It got rid of every formality by which the old Common Law
delayed and obstructed the forfeiture of the tenant’s estate. Statute
after Statute was passed for this purpose. The whole principle of the
Common Law was reversed. Chief Justice Pennefather judicially declared
that it was a code of law made solely for the benefit of the landlord, and
against the interest of the tenant, and that it was upon this principle
that judges must administer and interpret it.
Facilities given for Evicting Leaseholders.
The landlord who sought to evict a tenant holding under lease was, down to
the year 1816, obliged to proceed in one of the Superior Courts of law, a
practice which caused much expense and delay. When the European peace came
in 1815, after the Battle of Waterloo, the fall in agricultural prices
rendered it difficult, if not impossible, for tenants to pay the high
rents which had been fixed while war prices ruled. An Act was immediately
passed (56 George III., c. 88) which enabled an ejectment to be obtained
in the County Courts at a small cost, and without delay. In this respect
Ireland was forty years ahead of England, as a similar jurisdiction was
not given to the English County Courts until 1856.
Facilities given for Evicting Yearly Tenants.
The Irish Ejectment Code applied only to tenants holding under leases or
written contracts. As the country advanced, landlords gradually ceased to
give leases, and the great majority of small tenants held from year to
year. To meet this state of things the Civil Bill Court Act of 1851
extended the ejectment for non-payment of rent to tenancies from year to
year. Under the English statutes no similar power was given, and the
English landlord was obliged in the case of non-payment of rent to first
serve the tenant with a Notice to Quit, and then proceed to evict him by
the slow and costly process of an action in the Superior Courts.
The Land Act of 1860 (Deasy’s Act).
From this sketch it will be seen that the law governing the relations of
landlord and tenant in Ireland became more and more favourable to the
owner. This tendency culminated in 1860, when, by “Deasy’s Act” (23 & 24
Vic., c. 154)—which was passed through Parliament without amendment—the
relation between landlord and tenant was defined as founded on contract
and not upon tenure. The Act proceeded on the assumption that the land is
the exclusive property of the landlord, and that the tenant’s interest is
nothing more than that of a person who has agreed to pay a certain
remuneration for the use of the soil for a limited period. It simplified
and increased the remedies of the landlord for recovering possession of
the land, and rendered efficient the law of ejectment for non-payment of
rent and on notice to quit. Thus a default in payment of one year’s rent
entitled a landlord to evict the tenant and get possession of the land,
with all improvements on it, even where such improvements many times
exceeded in value the amount due. So also, by serving a Notice to Quit,
the landlord could similarly get rid of the tenant without cause, and take
possession of the holding and all its improvements, no matter how valuable
these might be, and without having to pay any compensation. The governing
principle of the Act was that whatever attached to the freehold became
part of the freehold.
Position of the Irish Tenant from 1860-1870.—The Devon Commission reported
(1844) that farm Improvements are made by the Tenants.
During the ten years after the passing of “Deasy’s Act” the position of
the Irish tenant reached its nadir. He had no right of any kind, except
such as the contract under which he held gave him. Almost all the
improvements which rendered the land capable of being worked were made by
him. He had built the houses, erected the fences, made the roads, drained
and manured the land, reclaimed it from bog or mountain—generally at a
cost out of all proportion to the return—and yet he could be turned out
without compensation at the will of the owner, either by the service of a
Notice to Quit or by ejectment for non-payment of one year’s rent. That
the tenants in Ireland made the improvements was universally admitted. The
Devon Commission (presided over by a leading Irish landlord) in the year
1844, reported:
“It is well known that in England and Scotland before a landlord
offers a farm for letting, he finds it necessary to provide a
suitable farm-house, with necessary farm buildings for the proper
management of the farm. He puts the gates and fences in good
order, and he also takes upon himself a great part of the burden
of keeping the buildings in repair during the term; and the rent
is fixed with reference to this state of things. In Ireland the
case is wholly different. It is admitted on all hands, that
according to the general practice in Ireland, the landlord builds
neither dwelling house nor farm offices, nor puts fences, gates,
&c., into good order, before he lets his land to the tenant. The
cases in which the landlord does any of these things are the
exception. In most cases whatever is done in the way of building
or fencing is done by the tenant, and in the ordinary language of
the country—dwelling houses, farm buildings, and even the making
of fences, are described by the general word _improvements_, which
is thus employed to denote the general adjuncts to a farm, without
which, in England or Scotland, no tenant would be found to rent
it.”
Effects of Political and Economic Changes on the Relations between
Landlord and Tenant during the Nineteenth Century.
In the early part of the last century the landlords, for political as well
as commercial reasons, encouraged the increase of the tenantry. The
political system that prevailed gave the landlord who had a large number
of tenants considerable power. The economic conditions of the time made
small tillage farming productive, and the demand caused by an ever-growing
agricultural population increased the competition for land, and enabled
the rents to be raised. About the middle of the century all these
conditions altered. The combined influence of the Famine and of the
introduction of Free Trade made it the interest of most landlords to get
rid of their small tenants as expeditiously and as completely as possible.
Now came the era of pasture and larger farms. Although the population
rapidly decreased, the consolidation of farms kept up the competition for
land, and rents rose rapidly. The clearances so common from the Famine to
1870 were made in many cases quite irrespective of the non-payment of
rent.
Attempts at Reform.—Land Act of 1870.
This state of things led to outrage and constant agrarian disturbance.
Various suggestions for reform of the Land Laws were made, but such
proposals were usually denounced as confiscatory. Mr. Butt’s proposal in
1866 that sixty-three years’ leases, with power to the landlord of varying
the rent, when any accidental circumstances increased the value of the
land, should be given by every landlord to his tenants, was described by
Lord Dufferin as “communistic” and “as subversive of the rights of
property.” Mr. John Stuart Mill, speaking on a Land Bill introduced by Mr.
Chichester Fortescue (May 17th, 1865), denounced the policy of clearing
away the small tenants to make room for capitalist farmers. “You cannot,”
he said, “evict a whole nation.” Various attempts to alter the law were
defeated, until at length, in 1870, Mr. Gladstone took the matter in hand,
and passed his Landlord and Tenant Act—the beginning of a new Land Code.
The justification for the Act of 1870 was the same as for the Act of 1881,
which followed it. The tenant had made all the improvements on the land,
and yet had no legal property in them. He was liable to capricious
eviction from a holding, the value of which was often mainly due to his
labour, and he was subject to arbitrary increases of rent.
The Act of 1870 did three things: (1) It gave compensation for
disturbance; (2) it gave compensation for improvements; and (3) it
legalised the Ulster Tenant Right Custom.
_Compensation for Disturbance._
I.—Compensation for disturbance was strictly limited to such loss
as “_the Court shall find_” to have been sustained by the tenant.
The loss was often held to be the less the higher the rent. The
amount of compensation could in no case exceed £250, and was
limited to tenancies created after the passing of the Act. No
compensation was to be given to tenants who had sublet or
subdivided their holdings without the consent in writing of the
landlord, or to any tenant under a lease for thirty-one years or
upwards, and the landlord had a right of deduction from the amount
awarded, for deterioration, &c.
_Compensation for Improvements._
II.—The right to compensation for his improvements to be awarded
to a tenant when quitting his holding was subject to so large a
variety of exceptions as to greatly limit the number of tenants
able to take advantage of the provision.
Even when compensation was awarded, the landlord could deduct from
the amount any arrears due for rates and taxes and for the loss
due to the non-observance of express or implied covenants or
agreements, and the Court in awarding compensation was required in
reduction of the claim of the tenant to take into consideration
the time during which the tenant had enjoyed the advantages of
such improvements, and also any other benefits he had had.
_Ulster Custom._
III.—The legalization of the Ulster Custom did not prevent the
landlord from increasing the rent from time to time so as almost
to destroy the tenant’s interest. The Act did not define the
custom, and the onus lay on the tenant of establishing that the
particular usage under which he held was within it.
The three great reforms introduced by the Act of 1870, namely: (1) The
right to compensation for disturbance; (2) to compensation for
improvements; and (3) the legalization of the Ulster Custom—could only be
brought into operation by proceedings before the County Court Judges, who
were thus entrusted with the administration of the Act.
Failure of the Act of 1870, Causes of.
The Act of 1870 failed in its object mainly for three reasons:
(1) The great variety and complexity of the exceptions from the
benefits of the Act.
(2) The principle of administration which, as a rule, tended to
reduce the compensation to as low a figure as possible.
(3) The insecurity of tenure of the tenant, and the right the
landlord still had of raising the rent at his pleasure. Thus the
legalization of the Ulster Custom was of little use, as the
landlord could practically destroy all the tenant’s interest under
it by raising the rent. The only remedy was to surrender the
holding and go before the County Court Judge for compensation,
which was usually much less than the tenant-right would fetch if
sold in the open market.
To protect the interest and property of the tenant in his holding and in
his improvements, both of which had now legal recognition—it was necessary
to give him: (1) Security of tenure at a fair rent; and (2) a special and
expert tribunal to decide on the amount of the rent at which he was to
hold.
The Land Act of 1881.
The Act of 1881 effected these reforms. It gave the tenant the right to
sell his interest in his holding—subject to the landlord’s right of
pre-emption—it gave fixity of tenure at a fair rent—subject to a fifteen
years’ re-valuation—and it established a special tribunal to fix the
rents.
The principles of the present Irish Land Code—which comprises a large
number of statutes—are contained in the Acts of 1870 and 1881. The Act of
1870 recognised for the first time that the Irish tenant had a right of
occupation and a property in his improvements. But the Act failed because
it recognised these rights grudgingly, and left untouched the power of the
landlord to fix what rent he pleased. The Land Act of 1881 for the first
time safeguarded the property of the tenant, and reversed the policy of
the Act of 1860 (Deasy’s Act) by removing the Irish Land system from the
domain of contract, and, in a manner, bringing it back to tenure.
Differences between the English and the Irish Land Systems.
To understand the agrarian situation in Ireland it is necessary to keep in
mind the fundamental difference between the English and the Irish systems,
which was pointed out in the Report of the Devon Commission. In England,
speaking generally, agricultural farms are let by the owners fully
equipped with buildings, fences, farm roads, and other improvements
necessary for the proper working of the holding. The tenant contracts to
pay a rent for the farm so equipped, and, if he finds that the particular
holding does not suit him, he gives it up at the end of his contract term,
and goes elsewhere. Under this system, what Adam Smith termed “the
higgling of the market!” is the easiest test of land value, as it is of
all other commodities with regard to which competition is free. In
Ireland, on the other hand, the landlord, speaking generally, owns only
the soil. The equipment of each farm is the property of or has been
effected by the tenant, who is practically a hereditary occupier. The
houses, fences, drainage, reclamation, farm roads, and other such
necessary improvements have been made by the tenant or his predecessors in
title. The landlord owns the soil, and the tenant the necessary
agricultural equipment. Consequently, the tenant is not free. He cannot
walk out at the end of his term and leave behind him his houses, roads,
fences, and drains. Besides, if he goes out, he has nowhere else to
settle.
The pressure of competition is so great—as is natural in a country in the
greater part of which there is no other employment or industry than that
of agriculture—that, very large sums, often far in excess of the value of
the land, measured by any standard of productive capacity are paid for the
mere right to occupy. Again, the nature of the land, in large parts of
Ireland, is such as to prevent owners from working it on the English
system of equipped farms. In the poorer parts of the country the land can
only be made to yield a profit to the owner by being worked by small
occupying tenants, who, without any economic return, are willing to expend
their labour and that of their families. Were such land to be handed back
to the owners to be worked by them without the intervention of tenants no
profit could be obtained, and the land would go out of cultivation, being
below the margin of economic profit.
Here we have the explanation and the justification of the series of Land
Acts from 1870 to 1896. They were an attempt to adjust the law of landlord
and tenant to the facts of the case. Before 1870 the law regarded the
landlord as the sole owner of the farm, while, in fact, the tenant was the
co-owner. The Act of 1870 recognised, to a limited extent, the
co-ownership, but gave insufficient relief. The Act of 1881 gave a more
complete recognition and relief, and various amendments and extensions
were introduced by subsequent Statutes.
Irish Land Purchase and the extent to which it has been carried on by
State aid.
Side by side with the legal recognition of dual ownership in Ireland there
proceeded a system for the creation of a peasant proprietary by the aid of
State loans, when both parties were agreed. The principal Acts under which
advances of public money to enable tenants to become proprietors of their
holdings were made are:
The Irish Church Act, 1869.
The Landlord and Tenant (Ireland) Act, 1870.
The Land Law (Ireland) Act, 1881.
The Purchase of Land (Ireland) Act, 1885.
The Purchase of Land (Ireland) Act, 1891 and 1896.
The Irish Land Act, 1903 and 1907.
The Evicted Tenant Act, 1907.
The Irish Land Act, 1909.
Irish Church Act, 1869.
Under this Act the Church Temporalities Commissioners were empowered to
sell to tenants of Church Lands their holdings at prices to be fixed by
the Commissioners themselves. If the tenants refused to buy on the terms
offered to them, the Commissioners could sell to the public. The Church
Temporalities Commissioners were empowered, if they thought well, to take
payment, as to one-fourth only, in cash and to leave the other
three-fourths outstanding as a legal charge on the holding, to be paid off
in thirty-two years by sixty-four half-yearly instalments.
The Commissioners sold in all to 6,057 tenants at an average price of
twenty-two and two-thirds years’ purchase of the rents, and the total
amount of the money advanced on loan was £1,674,841, which was issued by
the Commissioners of Public Works.
The terms of repayment and the rate of interest charged on loans were
afterwards altered and reduced under the Purchase of Land Act of 1885,
Section 23.
Landlord and Tenant (Ireland) Act, 1870.
Under what are known as the “Bright Clauses” of this Act, the landlords
and tenants of agricultural or pastoral holdings could arrange for a sale
of their holdings with State aid to be carried out in the Landed Estates
Court. Upwards of two-thirds of the price agreed upon could be advanced by
the Board of Works, to be repaid in thirty-five years by an annuity, at
the rate of five per cent. on the loan. Under this Act 877 tenants
purchased their holdings, and the amount of loans issued was £514,536. The
total purchase money paid by the tenant purchasers for their holdings was
£859,000, being at the rate of twenty-three and one-third years’ purchase
of the rents.
The Act of 1881 (the “Gladstone Act”).
Under this Act the Land Commission thereby established was empowered to
make advances to tenants for the purchase of their holdings, and was
enabled to purchase estates for re-sale to the tenants. The limit of
advance was extended from two-thirds of the purchase-money (as in the Act
of 1870) to three-quarters. The terms of repayment were the same—an
annuity of five per cent. for thirty-five years.
Upwards of 731 tenants purchased under this Act, and the advances made
amounted to £240,801. These included advances to 405 tenants on seven
estates bought under the Act (Section 26) by the Land Commission in the
Landed Estates Court.
The Purchase of Land (Ireland) Act, 1885 (the “Ashbourne Act”).
Under this Act—commonly known as the “Ashbourne Act”—a sum of £5,000,000
was authorised to be advanced to the Land Commission to enable sales to be
carried out between landlords and tenants by agreement, and to enable the
Land Commission to purchase estates in the Landed Estates Court for the
purpose of re-selling them to the tenants. The Land Commission was
empowered to advance the entire of the purchase-money subject to the
retention of one-fifth by way of guarantee deposit for a period of about
seventeen and a half years, by which time an equivalent amount of the
capital advanced had been repaid by means of the sinking fund. This
deposit could be utilised if the tenant purchaser made default in his
repayment, and if the amount in default could not otherwise be recovered.
Thus the landlord vendor was made a guarantor for the repayment of the
annuity by the tenant purchaser. (Section 3.)
The advances made under this Act were to be repaid by annual instalments
(which included interest and sinking fund), extending over a period of
forty-nine years.
In 1888, the £5,000,000 given under the Act of 1883 being practically
exhausted, an additional sum of £5,000,000 was advanced to the Land
Commission for the purposes of land purchase (51 and 52 Vic., c. 49).
Under the “Ashbourne” Acts 25,367 tenants (on 1,355 estates) became
purchasers of their holdings, and the loans made amounted to £9,992,536.
The rate of sale was seventeen years’ purchase of the rents. (Report of
the Irish Land Commission, 1902, p. 89.) Under these Acts 101 estates were
purchased in the Landed Estates Court for re-sale to tenants, and loans
were issued to 2,029 tenants, amounting to £531,277.
Purchase of Land Acts, 1891 and 1896 (the “Balfour Acts”).
The funds advanced to the Irish Land Commission for the purposes of land
purchase having again become exhausted, Mr. Balfour, in 1891, introduced a
new system under which the landlord or vendor was paid in a specially
created guaranteed Land Stock (exchangeable for Consols at the option of
the vendor), equal in nominal amount to the purchase money. This stock
bears interest at the rate of 2-¾ per cent. per annum, and cannot be
redeemed until the expiration of thirty years from the date of the passing
of the Act of 1891. The dividends and sinking fund payments required for
this stock are paid out of a “Land Purchase Account,” established by the
Land Commission (Section 4), to which all moneys received on account of
any purchase annuity for the discharge of an advance are paid. If this
Land Purchase Account is at any time insufficient to meet the dividends
and sinking fund payments (owing, for instance, to default in the
repayment of instalments), the deficiency is to be a charge on a
“Guarantee Fund,” established for the purposes of the Act (Section 5).
This fund consists of a cash portion and a contingent portion. The cash
portion is mainly made up of the Irish Probate Duty (now Estate Duty)
grant, and an Exchequer contribution, and the contingent portion consists
of the Irish share of the local taxation (Customs and Excise) duties and
certain local grants (Section 5). Any deficiency in the Land Purchase
account is to be paid out of this Guarantee Fund. This financial
expedient, of course, throws the securing of the repayment of the advances
for land purchase on the ratepayers of the county, as any default will be
recouped by deductions from the various payments and contributions in aid
of rates that make up the Guarantee Fund. The amount of stock that could
be issued for each county for purposes of Land Purchase was limited to
twenty-five times the share of the county in the guarantee fund by the Act
of 1891 (Section 9). This limit, having been reached in the case of Co.
Wexford, by Mr. Wyndham’s Purchase of Land (Ireland) Act, 1901 (1 Edw.
VII., c. 3) the limit was extended to fifty times the share of that county
in the guarantee fund. By the Act of 1903 (Section 46) the limit for each
county was raised to thirty times its share in the guarantee fund, which
limit might be further raised to sixty times where the Treasury, on the
certificate of the Lord-Lieutenant, were of opinion that such increase in
advances could be made without any risk of loss to the Exchequer.
Taken on the basis of the financial year 1909-10 the Guarantee Fund for
all counties of Ireland amounted to £2,797,126. On the above figures the
capitalized value of the Guarantee Fund on the thirty times basis is at
present £83,913,780, but owing to increases beyond this thirty times limit
which have been sanctioned by the Treasury, in certain counties the
present capitalized value of the fund stands at £89,323,685.
The total charge on the fund up to March 31st, 1910, was about 48-¾
million pounds in respect of advances made on the security of the fund,
and, taking pending applications for advances into account, the
approximate charges amounted at that date to about 105 millions.
The Act of 1891 was amended in various respects by Mr. Gerald Balfour’s
Act of 1896, which introduced, among other changes, a method of reducing
every decade (up to thirty years after the advance was made), the annuity
to be paid by the tenant purchaser. As under the “Ashbourne Act” of 1885,
this annuity was calculated at £4 per cent. on the purchase money, 2-¾ per
cent. being for interest, and 1-¼ per cent. being for sinking fund. Under
Mr. Gerald Balfour’s system, during the first decade after the purchase
the annuity is calculated on the original advance, and during the second
and third decades on the portion of the advance which is ascertained to be
unpaid at the end of the previous decade. At the end of the third decade
the annuity is calculated on the amount of the advance then outstanding
and runs until the entire debt is paid off. The Act of 1896 also permitted
the Land Commission to dispense with the whole or any part of the
guarantee deposit required under the Act of 1885 if the security for the
repayment of the advance was considered to be sufficient without it
(Section 29).
The number of loans issued under these Acts of 1891 and 1896 to tenant
purchasers up to March 31st, 1910, was 46,828, amounting in all to
£13,145,762, and being at the rate of 17.7 years’ purchase of the rents
(Land Commission Report, 1910, p. 110).
Irish Land Act, 1903 (the “Wyndham Act”).
I have traced the history of the Irish Land Acts down to 1896. Some short
Acts were added to the code during the following years to clear away
certain difficulties, and in 1903 Mr. Wyndham brought in and passed his
Irish Land Act, which may be said to have opened a new era in Irish
agrarian legislation. Under it a new body known as Estates Commissioners
was formed, and included in the Land Commission to administer land
purchase in Ireland.
Sales under previous Purchase Acts were carried out by holdings. A
landlord could agree with one or more of his tenants to sell them their
farms, and if the Land Commission, after examination, found that the
particular holding was security for the advance asked for by the tenant,
such advance was made irrespective of any other sales on the estate. The
Act of 1903 introduced the system of sales by “Estates.” A landlord, to
obtain the benefit of the Act, is obliged to sell his entire estate, or
such portion of it as the Land Commission considers fit to be regarded as
a separate estate for the purposes of the Act. The Commissioners, before
defining any lands to be an estate, have to consider all the circumstances
of the district and of the property. Once the estate is “declared,” the
holdings comprised in it are dealt with in accordance with the provisions
of the Act. Those of them that are subject to judicial rents and are
within certain “zones” laid down in the Act are freed from the liability
to inspection as to security or equity of price. The Act presumes that a
holding subject to a judicial rent which is sold at a price the annuity on
which is from 10 to 30 per cent. less than the judicial rent, where that
rent was fixed since the passing of the Act of 1896, or from 20 to 40 per
cent. less where the rent was fixed before that date, is good security for
the payment of the annuity, and that the agreed price is equitable.
Holdings not subject to the “zone” provisions are liable in inspection as
to security and as to equity of price.
The Act also introduced the system of sales of estates to the
Commissioners under Section 6 (the direct sales to tenants by landlords
being under Section 1). When a landlord is willing to sell in this manner,
the Commissioners, after due enquiry as to the price that should be paid
by each tenant for his holding, may offer to purchase the estate for the
purpose of re-selling to the occupiers, provided that at least
three-fourths of the tenants agree to purchase their holdings from the
Commissioners at the estimated price.
To encourage sales of estates, and to enable owners to get such a sum as
would give them their net income out of the purchase money, when
reinvested in suitable securities, the Act provided that a bonus of 12 per
cent. on the purchase money should be paid to the owner on the completion
of the sale. At the same time the tenant was enabled to borrow the
purchase money of his holding on easier terms. As we have seen, under the
former Purchase Acts, the annuity rate was fixed at 4 per cent., of which
2-¾ per cent. was for interest and 1-¼ per cent. for a sinking fund, the
accumulation of which, with compound interest, would repay the sum
advanced in about forty-three years. Under the Act of 1903 the annuity
rate which the tenant had to repay was reduced to 3-¼ per cent., of which
2-¾ per cent. is for interest and a ½ per cent. for sinking fund. This
reduction in the sinking fund lengthens the period over which the
repayment will extend to sixty-eight and a half years, and, of course,
renders it practically impossible to continue the system of giving decadal
reductions in the annuities. The decadal reductions, which were abolished
by the Act of 1903, worked out at about 15 per cent. reduction in the
annuity every ten years.
The Act of 1903 also enabled owners to sell their demesnes and untenanted
lands to the Commissioners, and to repurchase them, or so much of them as
the Commissioners approved, with the aid of advances made to them in the
same manner and under the same conditions as to tenant purchasers.
The Act also gave considerable powers to the Commissioners of dealing with
poor and uneconomic holdings. It enabled (Section 2) parcels of untenanted
lands on the sale of an estate to be sold to the following persons:
(_a_) A person being the tenant of a holding on the estate;
(_b_) A person being the son of a tenant of a holding on the
estate;
(_c_) A person being the tenant or proprietor of a holding not
exceeding five pounds in rateable value, situate in the
neighbourhood of the estate; and,
(_d_) A person who within twenty-five years before the passing of
this Act was the tenant of a holding to which the Land Law Acts
apply, and who is not at the date of the purchase the tenant or
proprietor of that holding: Provided that in the case of the death
of a person to whom an advance under this paragraph might
otherwise have been made, the advance may be made to a person
nominated by the Land Commission as the personal representative of
the deceased person.
This last class (_d_) was intended to provide for the reinstatement of
tenants evicted from their holdings within the prescribed time.
It also gives power to the Commissioners to purchase untenanted lands for
the purpose of enlarging holdings and of creating new holdings, and to
enable this work to be carried out satisfactorily, the Land Commission is
given all the powers conferred on the Congested Districts Board by their
Act of 1901 for facilitating re-sales of land.
The Evicted Tenants Act, 1907.
A large number of evicted tenants had been reinstated in their holdings
under the Act of 1903 or had been provided with new holdings where their
former holdings were not available. Large sums of money (drawn from the
Reserve Fund established under the Act of 1891, which was made available
by Section 43 of the Act of 1903) were expended in equipping these
holdings and in financing reinstated tenants where in the opinion of the
Estates Commissioners this was necessary. The provisions of the Act of
1903 were, however, found to be insufficient to carry out the intentions
of the legislature, and in 1907 Mr. Birrell passed an Evicted Tenants Act
which enabled the Estates Commissioners to acquire untenanted land
compulsorily for the purpose of providing holdings for tenants who, or
whose predecessors, had been evicted from their holdings since the year
1878, and who had applied to the Commissioners before May 1st, 1907. Up to
March 31st, 1911, as many as 12,398 persons had applied for holdings as
Evicted Tenants. Of these 6,276 were rejected by the Commissioners after
enquiry; 2,631 did not apply within the prescribed time; 2,830 were
actually reinstated in holdings; and 661 were still under consideration by
the Commissioners.
Irish Land Act, 1909 (Mr. Birrell’s Act).
After six years’ experience of the Act of 1903 it became evident that
further legislation was required if Land Purchase was to go on. In two
important matters Mr. Wyndham’s Act needed amendment. Under the financial
provisions of the Act the money required for advances to enable tenants to
purchase their holdings was provided by the issue of a Stock bearing
interest at 2-¾ per cent. But it turned out that at no time after the
passing of the Act could the money be raised on these terms, except at a
large discount averaging over 12 per cent. The Act provided that a fund
known as the Irish Development Grant should bear any loss due to the issue
of Stock at a discount. This Fund made available a sum of £160,000 a year.
The first issue of Stock under the Wyndham Act was made at 87, or a
discount of 13 per cent. Thus, to provide £100 in cash over £113 of Stock
had to be issued. The interest on this “excess Stock” was not paid by the
tenant purchasers, and was to be provided for out of the Development Grant
so long as that Fund was available, and afterwards would fall on the
Guarantee Fund, which meant the Irish Ratepayers. In the year 1909 it,
however, appeared that the charge for “excess Stock” necessitated by the
continual flotation of Stock at a large discount had so eaten into the
Development Grant that that Fund had become exhausted, and consequently
all subsequent issues of Stock for Land Purchase purposes would have to be
made at the expense of the Ratepayer. Agreements amounting to 56 millions
of Purchase Money were pending. To finance these Agreements a sum of about
£250,000 a year for the period of sixty-eight and a half years would have
to be provided by Irish Ratepayers, and were all the agricultural land in
Ireland to be sold the charge on the ratepayers would amount to an annual
sum of £877,000.
It became evident that the Irish Ratepayers would not tolerate Land
Purchase on these terms. Mr. Birrell, accordingly, by his Land Act passed
in December, 1909, provided that the charge for excess Stock to finance
all pending Purchase Agreements should be provided by the Treasury instead
of the Ratepayers, thus relieving the latter of a capital sum that might
exceed over £7,000,000. As regarded future Purchase Agreements, the Act
provided that the Vendors should be paid in 3 per cent. Stock, and that
Purchasers should pay an Annuity of 3-½ per cent. instead of 3-¼ per cent.
The other matter in which the Act of 1903 required amendment was as
regards the provision of the Bonus. A sum of 12 millions was provided by
Mr. Wyndham for the purpose of encouraging landlords to sell. On the
assumption that £100,000,000 would be sufficient to complete Land
Purchase, this Bonus Fund was distributed at the rate of 12 per cent. on
the Purchase Money advanced. This rate was to be continued for a period of
five years. On the expiration of that period (November 1st, 1908) it was
found that proceedings for sale of Estates had been instituted to an
amount of between 70 and 80 millions, and that the amount remaining to be
sold would probably approximate to another 80 millions. The Treasury
accordingly, in accordance with powers given them in the 1903 Act, reduced
the percentage from 12 to 3 per cent. at which rate it would remain for at
least five years were a new Act not passed. Mr. Birrell’s Act, however,
removed the 12 million limit, and provided for the payment of a graduated
Bonus at rates ranging from 3 to 18 per cent., according to the number of
years’ purchase of the rent at which the landlords sell. The old rate of
Bonus tempted landlords to stand out for a high price: the new graduated
rate offers an inducement to them to sell at a low price. It was
calculated that under the new provisions the capital sum for Bonus would
amount to at least 15 millions, which is likely to cost over 17 millions,
owing to the necessity for excess Stock.
As before stated, Agreements representing 56 millions of purchase money
were awaiting completion through the Land Commission in 1909. In 1903 it
had been calculated that the annual output of the Land Commission would be
five millions, and at that rate it would take more than eleven years to
complete these agreements. The block was due partly to the difficulty of
raising more than a limited amount of money in each year; partly to the
impossibility of any department dealing with more than a limited number of
sales in a year; and partly to the great rush of applications in 1908 when
the bonus revision was impending. The Act of 1909, in order to relieve the
block, gave Vendors under pending agreements an option to take 2-¾ per
cent. Stock at 92 (3 per cent. investment) in whole or part liquidation of
their Purchase Money. By virtue of certain statutory regulations, all
Vendors who exercise this option will be paid in a special priority
sometimes years sooner than if they elected to be paid entirely in Cash.
Cash Sales, Stock Sales, and Future Agreements are dealt with _pari
passu_, each class claiming on a separate fund.
Land Purchase under the voluntary system operated least of all in places
where its operation would have been most beneficial, and the congested
districts derived comparatively little benefit from the Act of 1903.
Table of Number of Purchasers and Amount of Advances under the various
Land Purchase Acts
The following table gives a summary of the number of tenant purchasers and
the amount of advances issued under the various Acts from 1869 to March
31st, 1912:
TABLE I
Act. No. of Amount of
Purchasers. Advances.
I—Irish Church Act, 1869 6,057 1,674,841
II—Landlord and Tenant Act, 1870 877 514,536
III—Land Law (Ireland) Act, 1881 731 240,801
IV—Land Purchase Acts, 1885, 1887, 25,367 9,992,536
1888, and 1889
V—Land Purchase Acts, 1891, 1896 46,810 13,633,665
VI—Irish Land Act, 1903 144,630 48,824,884
VII—Evicted Tenants Act, 1907 641 356,487
VIII—Irish Land Act, 1909 5,062 1,435,175
Total 230,175 76,672,925
The following represent the Number of Purchasers and Advances—comprised in
cases at present pending under the 1903 and 1909 Acts, (_i.e._, on March
31st, 1912).
TABLE II
Purchasers. Advances
applied for.
Act of 1903 118,360 35,794,157
Act of 1909 40,733 7,094,725
(Includes lands of an estimated value of £4-½ millions for the purchase of
which the Congested Districts Board are in negotiation.)
TABLE III
Table giving (1) the Number of Holdings; (2) Area; (3) Poor Law Valuation;
and (4) the Purchase Money of (_a_) Lands Sold and Vested; (_b_) agreed to
be Sold but not yet Vested; and (_c_) in respect of which proceedings for
sale had not been instituted up to March 2nd, 1912:
(_a_) _b_) Lands (_c_)
Lands _agreed to Lands in
_sold_ and be sold_ respect of
_vested_ but _not which
in yet _proceedings
purchasing vested_ in for sale
tenants, purchasing have not
or in the tenants been
Estates (including instituted_
Commissioners lands under the
or comprised Land
Congested in Estates Purchase
Districts for the Acts (the
Board, for sale of estimated
resale to which to Purchase
Tenants. the Money of
Estates same being
Commissioners calculated
and on basis
Congested of
Districts Purchase-Price
Board of Poor
proceedings Law
have been Valuation
instituted. of lands
sold to
March
31st,
1910,
under the
Act of
1903).
Acts
1870-1896.
Number of 73,812 73,812
Holdings
Area 2,508,938 2,508,938
Poor Law £1,399,188 £1,399,188
Valuation
Purchase £24,779,176 £24,779,176
Money
Acts
1903-1909.
Number of 143,618 167,319
Holdings
Area 4,637,183 4,291,725 7,301,798 16,230,706
Poor Law £2,418,136 £2,250,372 £3,993,971 £8,662,479
Valuation
Purchase £49,202,298 £45,536,851 £82,263,747 £177,002,896
Money
Gross
Totals.
Number of 217,430 167,319
Holdings
Area 7,146,121 4,291,725 7,301,798 18,739,644
Poor Law £3,817,324 £2,250,372 £3,993,971 £10,061,667
Valuation
Purchase £73,981,474 £45,536,851 £82,263,747 £201,782,072
Money
NOTE.—This Table is based on the assumption that all the land in Ireland
valued as agricultural land will come under the operations of the Land
Purchase Acts.
TABLE IV
Table giving Rates of Annuity (distinguishing amounts for Interest and
Sinking Fund) and number of years payable under the various Land Purchase
Acts:
Purchase Rate of Rate of Rate of Number of
Act. Annuity. Interest Sinking years
comprised Fund payable.
in comprised
Annuity. in
Annuity.
1881 5 3-½ 1-½ 35
1885 4 3-1/8 7/8 49
1891 4 2-¾ 1-¼ 49
1896 As in Act 73
of 1891,
subject to
decadal
reduction.
1903 3-¼ 2-¾ ½ 68-½
1909 3-½ 3 ½ 65-½
Part II. The Statutes Relating to the Relief of Congestion in Ireland.
Two Classes of Occupiers in Ireland—Establishment of the Congested
Districts Board
Most of the earlier Statutes which have been summarised in the first part
of this chapter deal with the rights and obligations of Irish Tenants
without any attempt at Economic discrimination. No distinction was drawn
between the occupiers of uneconomic holdings and those who were able to
make a living and pay a rent out of their farms. Some slight recognition
of the fact that the smaller tenants had a special claim to protection was
shown by the Compensation for Disturbance Clause (Section 3) of the Act of
1870, which enacted that a tenant of a holding valued at £10 or under
might be awarded a sum not exceeding seven years’ rent, while a tenant
above £100 Valuation could not in any case receive more than one year’s
rent. Beyond that, however, nothing was done. It took many years to get
the Irish Administration to understand that something more than “Fixity of
Tenure” was necessary if the periodical famines and endemic misery of the
poorer occupiers of the West and South of Ireland were to be fought
successfully. It was, however, finally recognised that, in many parts of
the country, the average character of the holdings was below the level
which is necessary in order to make a reasonable standard of living
possible, and it was then resolved to adopt special means to meet the
evil. The establishment of the Congested Districts Board in 1891 was the
outcome of this resolve. It was the first attempt made to discriminate by
legislation between the two great classes of Irish occupiers, namely,
those whose holdings were capable of affording a means of livelihood and
of paying a rent; and those who were so impoverished as to be incapable of
supporting themselves without assistance from outside.
The word “Congestion,” as applied to land, has acquired a special and
peculiar meaning in Ireland. It has become a term of art, and, like many
another word of the kind, has travelled far from its original meaning. It
does not mean, as might be supposed, “pressure of population.” The
definition of a “Congested District” given in the Act of 1891, is a
district in which more than 20 per cent. of the population live in
electoral divisions of which the total rateable value, when divided by the
number of the population, gives a sum of less than 30s. for each person.
This definition is, of course, arbitrary, and in fact includes many
districts through which a man might drive for miles without seeing a human
habitation, and excludes districts in which the population is in truth
“Congested.”
The word connotes not the over-population of particular localities, but
rather the condition of the people in those localities. Owing to various
reasons, mainly historical, a population which, having regard to the means
of subsistence, may be called excessive, is to be found on the large area
of poor land that extends along the western seaboard of Ireland from
Donegal to Cork. In some regions it is really “congested” and, as in such
places the poverty of the people is most pronounced and obtrusive, the
problem was supposed to be one of “congestion,” and so the word came to be
used. The true area of congestion is, of course, the western part of the
Island, but it must not be supposed that the same problem does not arise
in other parts of Ireland—(even in the province of Leinster)—in an acute
form. This was recognised by the framers of the Land Act of 1909, and now
the Estates Commissioners are empowered to purchase compulsorily, not only
any congested estate, but also, in the case of any estate which does not
as a whole come within the definition of a “Congested Estate,” any
townlands forming part of the Estate which are themselves “Congested.” The
definition of a “Congested Estate” is “an Estate not less than half the
area of which consists of holdings not exceeding seven pounds in rateable
value or of mountain or bog land or not less than a quarter of the area of
which is held in rundale or intermixed plots.” There is a further power
given to the Commissioners to acquire compulsorily untenanted lands. Under
these powers the Estates Commissioners will be able to do for the rest of
Ireland what the Board is doing for the Congested Districts, namely: to
turn the present uneconomic holdings into economic ones by the addition
thereto of other lands; and further, by the consolidation of holdings held
in rundale or in intermixed plots, to put an end to the waste of effort
inherent in such a system.
Statutes Dealing with Congestion
(Act of 1891—Act of 1893—Act of 1894—Act of 1896—Act of 1899—Act
of 1901—Act of 1903—Act of 1909)
The Congested Districts Board was founded under the authority of Section
34 of the Purchase of Land (Ireland) Act, 1891, to continue for twenty
years, “and thereafter until Parliament shall otherwise determine.” It was
given power (Section 39) to aid migration and emigration within a
congested districts county, to sell suitable seed potatoes and seed oats
to occupiers, to aid and develop agriculture, forestry, the breeding of
live stock and poultry, weaving, spinning, fishing (including the
construction of piers and harbours, the supply of fishing boats and gear,
and industries connected with fishing), and any other suitable industries.
Powers were also given for the enlargement of holdings whether subject to
purchase annuities, or to rents to private owners, but these powers were
so circumscribed and guarded, as to be unworkable. The Board was granted
an income to commence with of £41,250 a year. In 1893 an Act was passed
(56 & 57 Vic., c. 35) which gave the Board power to acquire land and to
hold it as landlords for the enlargement of holdings and for the purpose
of the Land Purchase Acts. In 1894 another Act was passed which enabled
the Board to give to the Land Commission, on selling to a tenant
purchaser, a guarantee for the repayment of the annuity. Such guarantee
enabled the Land Commission to dispense with their retention of any sum
out of the purchase money as a guarantee deposit, a practice which, if
followed, would have seriously crippled the operations of the Board. The
Land Law Act of 1896 gave power to the Board to obtain an advance from the
Land Commission for the purchase of estates “in like manner as if the
Board were a tenant purchasing his holding.” This Act contained some
provisions that greatly hampered the Board. Thus an advance could not be
obtained by a tenant valued at under £10 for the repurchase of his holding
from the Board. Also Section 40 (2) enabled Court tenants and temporary
tenants to obtain advances under the Purchase Acts in the case of sales of
estates under the section in the Land Judges’ Court. This meant that the
lands that were most required by the Board for the Relief of Congestion
were commonly disposed of to graziers and others. The Congested Districts
Act of 1899 cleared away these two obstacles to the work of the Board, and
also enabled the Land Commission to make advances for the redemption of
head rents and other “superior interests,” and increased the Parliamentary
Grant from £6,500 to £25,000. The Congested Districts Board Act of 1901
gave a limited power of dealing with obstructive tenants in the
rearrangement of the estates purchased. It also gave the Board all the
powers of entry on a holding subject to a statutory tenancy for the
purposes of mining, quarrying, cutting timber or turf, opening or making
roads, fences, drains, and water-courses, hunting, fishing, shooting,
etc., given to the landlord by Section 5 (subsection 5) of the Act of
1881, and further extended these powers to holdings not subject to
statutory tenancies. The Act also enabled the Board to purchase land
outside a congested districts county with the approval of the
Lord-Lieutenant. The Land Act of 1903 gave facilities to the Board for the
purchase of estates, similar to those given to the Estates Commissioners
under the Act. It also gave the Board the discretionary power of deciding
whether an advance should be made to a purchaser; of what amount the
advance should be; and how far the security was sufficient. The collection
of the purchase annuities so made, was, however, still left to the Land
Commission. The Act added £20,000 to the annual income of the Board, to be
drawn from the Irish Development Grant (Section 38).
Under Mr. Birrell’s Act of 1909 the constitution, powers, duties and
income of the Board were reconstituted and enlarged. The new Board
consists of fourteen members, three of whom are _ex-officio_, namely, the
Chief Secretary, the Under-Secretary to the Lord-Lieutenant and the
Vice-President of the Department of Agriculture; nine are appointed by the
Crown; and two are paid permanent members. The annual income of the Board
was raised from £86,250 to £250,000, and its operations were extended so
as to comprise the counties of Donegal, Sligo, Leitrim, Roscommon, Mayo,
Galway, Kerry, and parts of the counties of Clare and Cork. It was enacted
that thenceforward no Congested Estate could be sold under the Land
Purchase Acts in a congested districts county to persons other than the
Congested Districts Board without the consent of that Board; that the Land
Commission before entering into an agreement for the purchase of any land
in a congested districts county, should obtain the consent of the Board;
and the power of purchasing estates and land compulsorily through the
Estates Commissioners was given to the Board within all congested
districts.
Up to February 1st, 1911, the Congested Districts Board had purchased
estates of the value of £1,813,568, and of this, lands of the value of
£1,710,304 then remained unsold. The remainder, so far as they were
“tenanted lands,” had been sold to the tenants, and, so far as they were
“untenanted lands,” had been used in enlarging the neighbouring holdings
or in the creation of new holdings. In the latter cases, the new farms
were fenced and drained and houses built thereon. On some estates where
the tenants held in rundale or had joint rights of grazing over parts of
the land, the Board “striped” the whole estate, giving to each tenant an
enlarged and compact holding, properly drained and fenced. An example of
the excellent work done on such an estate can be seen by anyone who will
pay a visit to Clare Island at the mouth of Clew Bay in the County of
Mayo. An example of the work done in creating new holdings can perhaps
best be seen on the Dillon Estate in the County of Roscommon.
Since the passing of the Act of 1909 the most extravagant ideas as to the
powers of the Board have got abroad among the people of the congested
areas, and applications are being made to them from every estate—almost
from every parish—to purchase and divide up particular lands. The area of
the congested counties under their control amounts to 7,658,114 acres, or
about one-third of the whole of Ireland. Even assuming that a large number
of these applications should not be granted, there still remains a residue
of work to be done which would tax the capacity of a Board many times
stronger both in resources and staff than the Congested Districts Board.
At the present time the Board is possessed of large tracts of land which
they annually let on grazing contracts or which they stock themselves.
This is not as it should be, for, when the people see lands taken by the
Board used year after year as pasture, they begin to lose faith in the
capacity and usefulness of the institution.
It is not the fault of the Board. It would take a much bigger income than
they possess and a much bigger staff than they command, to cope with the
work which they have to do and which ought to be done.
Parliament has now given them enormous and compulsory powers. Immense
pressure will be put on them to exercise these powers, and in many cases
if the powers were exercised it would be for the lasting benefit of the
country. If the Board are to carry out fully the work which they have been
created to do, the Government must in the near future again come to their
assistance. With their present resources, their task is well-nigh
impossible.
Part III. Statutes Relating to the Provision of Allotments of Land and
Dwellings for Agricultural Labourers in Ireland.
(Act of 1883—Act of 1885—Act of 1886—Act of 1891—Act of 1892—Act
of 1896—Act of 1903—Part IV. of the Irish Land Act, 1903—Act of
1906)
Previous to the Act of 1883 little or nothing had been done to meet the
want of better housing for the agricultural labourers in Ireland. Their
condition was deplorable. The houses in which they lived were almost
everywhere throughout the country of the worst description. In fact, they
were little better than hovels.
By the Acts of 1883 to 1906, the Rural District Councils of Ireland were
empowered to obtain loans to provide suitable dwellings and allotments of
land for agricultural labourers. The loans might be applied, subject to
the approval of the Local Government Board, for any of the following
purposes: the acquisition of land either for new cottages and allotments
or for additional allotments; the acquisition of existing houses; the
erection of new houses; the legal, engineering and incidental expenses in
connection with these purposes. The amount of land which might be allotted
to any one labourer was not to exceed one statute acre.
The expression “agricultural labourer” is defined by Section 4 of the Act
of 1886 as “a man or woman who does agricultural work for hire at any
season of the year on the land of some other person or persons, and shall
include handloom weavers and fishermen doing agricultural work as
aforesaid and shall also include herdsmen.” By Section 93 of the Land Act
of 1903 (Part IV. of which is construed as one of the Labourers Acts) the
earlier definition is enlarged so as to include “any person (other than a
domestic or menial servant) working for hire in a rural district whose
average wages in the year preceding the lodgment of any representation
under the Labourers Acts affecting him do not exceed two shillings and
sixpence a day, and who is not in occupation of land exceeding one quarter
of an acre.” These definitions are very wide and, practically speaking,
enable the Sanitary Authority to provide cottages and allotments for all
labourers in rural districts, who are thus placed on somewhat the same
footing as artisans in urban districts are placed under the Housing of the
Working Classes Act. The Rural District Councils are given power to
acquire, compulsorily or by agreement, the necessary lands from the owner
either by purchase of the fee simple or on a lease for a term not
exceeding ninety-nine years. If the lands are acquired compulsorily in
fee, the amounts to be paid to the owners and occupiers are fixed by an
arbitrator appointed by the Local Government Board; if the lands are
acquired compulsorily for a term of years, the rents to be paid are fixed
by the Land Commission.
If the Council cannot agree with the owner as to the price to be paid,
they must prepare a scheme showing the lands it is purposed to take, and
the scheme must be confirmed by an Inspector of the Irish Local Government
Board. Any person interested can appeal, at their option, either to the
County Court Judge or to the Local Government Board. In either case the
decision is final. There is no appeal against the price fixed by the
arbitrator unless the amount awarded exceeds one thousand pounds.
Prior to the passing of the Act of 1906, the loans for the purposes of the
Labourers Acts were advanced by the Commissioners of Public Works and were
repayable by annuities which included principal and interest. The rates of
interest varied according to the number of years during which the
annuities were payable, and at the passing of the Act of 1906 were as
follows:
Period. Rate of Annuity
Interest. covering
Principal and
Interest.
20 years 3-½ per cent. £7 0s. 9d.
30 years 3-¾ £5 12s. 2d.
40 years 4 £5 1s. 1d.
50 years 4-¼ £4 17s. 2d.
The Act of 1906 enabled the Rural District Councils to obtain advances for
the purposes of the Labourers Acts up to 4-¼ millions from the Land
Commission out of the Irish Land Purchase Fund, and provided that such
advances were to be repayable in like manner as the advances under the
Irish Land Act of 1903, that is to say, by annuities at 3-¼ per cent.
(covering both principal and interest) and payable for 68-½ years. This
annuity rate has been continued in the case of advances for the purposes
of the Labourers Acts by the Irish Land Act, 1909, which Act increased the
annuity rate to 3-½ per cent. in respect of all advances for lands
purchased under the Land Purchase Acts since September 15th, 1909.
It will thus be seen that the terms of repayment for loans under the
Labourers Acts were made much easier by the Act of 1906 than they were
under the previous Labourers Acts. That Act further provided that only 64
per cent. of the charge was to be borne by the local rates; the remaining
36 per cent. being defrayed, as to 16 per cent. out of the Labourers’
Cottages Fund established by the Act, and as to 20 per cent. out of the
Irish Development Grant. There was placed at the disposal of the Local
Government Board the following sums for the purposes of the Labourers’
Cottages Fund: A capital sum of £150,000 taken from the Petty Sessions
Clerks’ Fund; a principal sum of £7,000 taken from the Ireland Development
Grant, an annual sum of £6,000 to be deducted from the Exchequer
Contribution mentioned in Section 5 of the Land Purchase Act of 1891, and
an annual sum of £9,000, equivalent to the savings to be effected by the
abolition of two Irish Judgeships and a reduction in the salary of the
Lord Chancellor of Ireland.
By an amending Act passed in 1911 a further sum of £36,000 cash, and 2-½
per cent. Consolidated Stock to the nominal value of £30,000, both taken
out of the Fund of Suitors in the Supreme Court, were added to the
Labourers’ Cottages Fund.
The effect of the change made by the Act of 1906 has been to reduce the
charge per £100 on the rates from £4 17s. 2d. (the lowest amount payable
before that Act) to £2 1s. 7d. the amount payable now—a reduction of
almost 57 per cent.
Under the Acts of 1883 to 1896, 22,588 cottages were built, and the loans
sanctioned amounted to £3,600,000. Under the Act of 1906, 12,821
additional cottages have been built, 5,057 are in course of erection, and
others have been sanctioned or are awaiting sanction. The loans sanctioned
under the Act amount to close on 4-¼ millions. This is the amount provided
for by the Act of 1906. Another million on the same terms as the 4-¼
millions was provided by the amending Act of last year.
The average cost of each cottage built has been £175, and the average rent
paid for a cottage with half an acre of land is 10d. per week, and for a
cottage with an acre of land about 1s. per week.
The Labourers Act of 1906 included agricultural labourers in the class of
persons to whom a parcel of untenanted land might be allotted by the
Estates Commissioners, where the agricultural labourer had for a period,
not less than five years immediately preceding, been resident on the
estate or in the immediate neighbourhood thereof, but it provided that in
no case should any advance be made to a labourer to purchase a parcel of
land so long as he was in occupation of a tenancy under the Acts. The Act
also empowered the Estates Commissioners to make advances to Rural
District Councils, as trustees under Section 4 of the Irish Land Act,
1903, to purchase parcels of untenanted land for the purposes of the
Labourers Acts.
The Labourers Acts and their administration have been, on the whole,
extremely successful. No legislation passed during the last thirty years
was more entirely needed, and none has been more beneficial to the
country. The benefit is one which no one who travelled through Ireland
thirty years ago, and who travels through it again to-day can fail to
remark.
Where dilapidated hovels stood formerly, decent cottages stand to-day. A
great deal still remains to be done, but what has been done has been, on
the whole, well done. Up to the present there has been no inquiry ever
asked for into the working of the Acts. That fact in itself shows that no
serious dissatisfaction has been felt with their administration. However,
from time to time complaints are heard which should be attended to;
complaints as to the unsuitability of the people for whom cottages have
been built; as to the size or workmanship of the cottages; as to a number
of the cottages, remaining untenanted; and more often as to jobbery in
respect of the sites chosen. Considering the amount of work done, it is
surprising that the complaints have been so few. Nevertheless, it would be
well that an inquiry should be held. It would tend to prevent any existing
abuses from increasing.
Part IV. Compulsory Registration of Land in Ireland.
In the year 1865 a Record of Title Act was passed for Ireland. Its
operation was confined to lands sold through the Landed Estates Court.
About 680 titles were recorded under it. It failed, largely because it was
not compulsory.
In the year 1891 the Local Registration of Title (Ireland) Act was passed.
All lands sold under the Land Purchase Acts and vested in purchasing
tenants subject to land purchase annuities, are thereby required to be
registered in the central or local offices of the Land Registry. There is
a local office in each county in Ireland and a central office in the City
of Dublin, which is also the local office as regards lands in the county
of Dublin. When the holdings are vested in the purchasing tenants by the
Land Commission that department furnishes to the Land Registry the
necessary particulars for the registration of the lands. These particulars
are entered on the registers and the boundaries of the holdings are
delineated on the registry maps. A certificate, which is a copy of the
folio of the register, is then issued to the purchaser.
All subsequent dealings with the land must be registered, and no estate is
acquired by the transferee of registered land until his name is put on the
register as owner of the lands transferred (Section 25).
All registered land is divisible on the death of the registered holder
intestate “_as if it were personal estate_” (Section 85).
Lands acquired by Rural District Councils under the Labourers Acts are
also compulsorily registered in the Land Register.
The title of each purchasing tenant is registered on the application of
the Land Commission and without any application by him. As no
investigation of any of these titles is possible, each holding is
registered “subject to equities,” that is, subject to any rights of third
persons interested in the land. Before a transfer of the holding is
executed these equities are, as a rule, discharged.
When the work of the Land Purchase Acts has been completed, practically
the whole land of Ireland will be registered. The principal effect of such
registration will be to facilitate the sale of land by reducing the cost
and simplifying the process of transfer. Registration of title exists
wherever a peasant proprietary has been established. It is almost a
necessary concomitant of such ownership.
The Irish Act has been conceived on right lines, but it will in the near
future need much amendment.
It needs simplification. The process of registration is too complicated
and too slow; there are too many burdens on the lands which do not require
registration, and in consequence, there are too many matters which, on a
sale, must be inquired into and so add to the price of transfer. Above
all, registered land should be declared to be personal property and should
not merely be made to descend “_as if it were personal estate_.” These
words have already on numerous occasions occupied the attention of the
judges, and their full meaning has not yet been made clear. The effect of
the various decisions is that, while registered land descends on a death
intestate to the next of kin as if it were personal estate, for every
other purpose it is to be regarded as “real estate.” To a lawyer the
position is full of interest; to the ordinary layman it is absurd; for the
community it is most mischievous.
PART II. A HISTORICAL ARGUMENT
VIII.—Irish Nationality. BY MRS. J. R. GREEN
“Justice requires power, intelligence, and will.”—(_Leonardo da
Vinci_.)
“Sinister information,” reported a Governor of Ireland under Henry VIII.,
“hath been of more hindrance to the reformation of Ireland than all the
rebels and Irishry within the realm.” The complaint is as true to-day as
it was nearly four hundred years ago, for false tongues still gain power
through ignorance. Irish history has the misfortune of being at the same
time trite and unknown. Men hear with the old acquiescence the old
formulæ, and the well-known words carry to them the solace of the ancient
prejudices.
There is indeed in these latter days a change of accusation. In former
times Irishmen were marked off as an inferior people, but within the last
few years the attack is altered; and it is now the fashion to assume that
the Irish fail, not as individuals, but only in their corporate capacity.
To Irishmen is still denied “the delight of admiration and the duty of
reverence.” Holding in their hearts the image of a nation, they are warned
not to ask whether it was a nation of any value, whether there has been
any conspicuous merit which justifies the devotion that the Irish people
feel to their race, and which may claim the regard of others. For it is
not enough to have the mere instinct of passion for our country, unless
our heart and reason are convinced that we give our allegiance to a people
that, in spite of human errors, has been of noble habit and distinguished
spirit.
The policy of “Unionist” leaders is to meet the Irish desire for an
uplifting pride in the life of the Irish commonwealth by a flat denial.
Ireland, we are told, is not, nor ever has been, nor ever can be, a
nation. A disorganized and contentious people, incapable of rightly using
any polity Irish or English, we have not, it is said, even the materials
of a nation. We are only “material,” to use an old Irish expression, for
an Empire. The island in fact was never a kingdom till England gave it a
king worthy the name; so how could it be a nation? To the gift of a king
England added her invention of a Parliament, but the failure of Parliament
in Ireland was open and flagrant; how then talk about a nation?
“There are Englishmen and Scotchmen,” says Mr. Balfour, “who
really suppose that England has deprived Ireland of its own
national institutions, has absorbed Ireland, which had a polity
and a civilization of its own—has absorbed it in the wider sphere
of British politics; and who think that a great wrong has thereby
been done to a separate nationality.... It is a profound illusion.
It has no basis in historical fact at all.”
He gives a history of his own.
“Those whom the Nationalists choose more particularly and
especially to call Irishmen, namely, the original inhabitants of
Ireland—those who were there before the Celt and before the Saxon
and before the Norman—never had the chance of developing, they
never could have developed, a polity of their own, any more than
the Highlanders. That does not mean that they are in any sense
inferior, but it does mean that all this talk of restoring to
Ireland Irish institutions, and of governing Ireland according to
Irish ideas, has no historic basis whatever.”
It is for such wayward imaginings that the historic claim of Ireland is
denied. What meaning shall we give to this new dogma of the partiality of
Nationalists for some pre-Celtic race—whether Iberian, or whether (as some
explain the phrase) Finn MacCumhaill and his followers, ingeniously
regarded by Mr. Balfour as having adorned Ireland before the Celtic age?
Where was the “Saxon” settlement in Ireland between the Celts and the
Normans? What is the comparison of the Highlanders with the original
inhabitants of Ireland? Why should Mr. Balfour’s doubts of a pre-Celtic
polity put an end to all talk of Irish institutions and Irish ideas?
To come to somewhat later times, under the clan system, says Mr. Balfour,
it was impossible to rise to civilization. “And when England dealt with
Ireland, Ireland was completely under the tribal system” (a theory false
to history). The superior English polity in due time, however, spread its
hand over Iberian chaos. “An Irish Parliament is a British invention”—the
word, with Mr. Balfour’s easy adjustment of history to politics, is
probably chosen to give the Scotch a gratuitous share in the credit, with
a compliment to their spirit; for, as he says, “my Lowland ancestors in
Scotland had precisely the same contempt for my Highland fellow-countrymen
as the English had for the Irish in Ireland”—(the word Lowland being here
misused in a non-historic sense). “Every political idea in Ireland is of
English growth—the Irish dependent Parliament, the Irish independent
Parliament—it is all of British extraction.” Mr. Balfour seems to imagine
in his indifferent way that the “dependent form” was the first; he seems
to guess that it was a single form, “_the_ dependent Parliament”; and he
calls his “independent Parliament” “a practically sovereign legislature.”
It would be hard to gather more fundamental errors into one sentence. At
any rate in his simplified scheme both forms of “the British invention”
failed in Ireland. But in the success of the Union and the assembly at
Westminster, England has established successfully what Mr. Balfour calls
“the unity which we have inherited from our forefathers.”
Such are the “General Principles” which Mr. Balfour—speaking with all the
authority of an “Unionist” statesman, head of a great English party,
leader for a generation of those who refuse to Ireland any claim to
national memory or national hope, absolute ruler for four years of that
island—has issued in his book “Aspects of Home Rule” to rally his
followers. This confusion of fictions, in all their brave untruth,
furnishes the historic background and justification of the Unionist creed.
We might not easily expect an “Imperial” leader so far to forego respect
for himself or for his public.
There is an Old Irish proverb: “Three candles that illumine every
darkness: truth, nature, knowledge.” But Mr. Balfour is as a man for his
pleasure wandering in the dark among the tombs of vain things. And from
places of death comes as of old “sinister information” to minister to
ignorance and prejudice, and to be still the hindrance to the reformation
of Ireland.
These comprehensive charges cover the two strongly-contrasted periods of
Irish history—the period of Gaelic civilization, and that of Norman, or
later of English settlement. All races are alike condemned. The one people
had no institutions. The other misused what were given to it. In either
case the fault is said to be “Irish”—the general word of contempt.
Confounded together by Mr. Balfour for his own purposes, the two
accusations have nothing in common, and must be separately considered if
we wish to think justly.
We may, however, observe that to both races is denied the praise of a
“nation” or “nationality.”
The definition of a “nation” may be varied: every man has his opinion,
for, as the old Irish saying went, “’tis his own head he has on him.” But
in the matter nature and history cannot be wholly set aside, and we may
attach some importance to the unity of a country, the persistence of its
race, and the continuity of its life. If we consider outward form, who
ever thinks of the map of Great Britain as a whole? The form that is in
men’s minds is of two configurations, one of England and one of Scotland,
two countries mapped out on separate sheets. The names of the countries
have changed, Alban and Scotland; Britain and England; and the title of
the whole is a somewhat awkward evasion or compromise. Ireland on the
other hand has its unchangeable boundaries fixed by the Ocean, its
provinces from immemorial times subordinate territories of the undivided
country. Its successive peoples, perhaps for some four thousand years,
have never known it but by one name, Erin; or by the variations of that
name as it passed into other speech, Iberia, Hibernia, Ire-land. The Old
Irish knew it some fourteen hundred years ago as their “Fatherland.” As
far back as we can go the unity of the country as a whole is prominent in
their thought; as, for example, in an ancient poem on the passing of the
pagan world and the triumph of Christianity:
“God’s counsel at every time concerning virgin Erin is greater
than can be told; though glittering Liffey is thine to-day, it has
been the land of others in their turn.”
In the Middle Irish period a legend of the coming to Tara of the most
ancient of all the sages carried to the people the same rapt love of
Ireland. When all the assembly rose up before him:
“There is no need to make rejoicing for me, for I am sure of your
welcome as every son is sure of his foster-mother, and this, then,
is my foster-mother,” said Fintan, “the island in which ye are,
even Erin, and the familiar knee of this island in which ye are,
namely, Tara. Moreover it is the mast and the produce, the flowers
and the food of this island that have sustained me from the deluge
until this day. And I am skilled in its feasts and its
cattle-spoils, its destructions and its courtships, in all that
have taken place from the deluge until now.”
Every race in turn that entered Ireland drank in the spirit of the soil:
all became citizens of the one land. Even that gift of “English invention”
and “British extraction,” the Pale Parliament, was by mere human nature
and necessity stirred to loyalty for “the land of Ireland.” “More
conveniently,” so they urged in a statute of 1460, “a proper coin distinct
from the coin of the realm of England was to be had therein.” And the
Anglo-Norman colonists decreed that of the coins they ordered one should
be called an “_Irelands_,” with that name engraven on it, and the other a
“_Patrick_,” with the name and cross of the national Irish saint.
This persistence of the name of Ireland with its national pride, and its
perpetual recalling of a distinct people, was displeasing to Englishmen in
the height of their “godly conquest.” If the name was extinguished the
fact might be more easily denied. They pleaded, as we learn in the Carew
Papers (I. 251-2), for its disappearance, in the true spirit of modern
Unionism. When Paul IV. gave to Philip and Mary the title of King and
Queen of Ireland:
“Men of judgment, ... thought it a vanity, not seeing what profit,
either of authority or honour, it might bring to a King to have
many titles in the country which he possesseth, considering that
the Most Christian King is more honoured by the only title of King
of France, than if his state were divided into as many kingly
titles as he hath provinces.... But it seemed hard to induce
England to quit that which two kings had used, and the Queen, not
thinking much of it, had continued.”
There was indeed a power in nature far older than the habit of two English
kings; and in spite of the Unionist grumblings the ancient name survived,
and the ancient fact. Cardinal Pole was appointed legate to “the realms of
England and Ireland.” Our ambassadors and consuls still carry with them
abroad the significant title “of Great Britain and Ireland”; and we may
read in a Russian newspaper concerned with the East, of the “policy of
Great Britain and Ireland in Afghanistan.”
The persistence of race in Ireland was no less remarkable than the triumph
of its name. There are some who profess to distinguish the Iberians. We
know that successive streams of immigrants, Danes, Normans, English,
French, have been merged in the commonwealth. But the Registrar-General
gives, in spite of outgoings of the Celtic and incomings of Teutonic
peoples, an overwhelming majority of men of Celtic blood and name—a
majority which is in fact less than the truth, owing to the continual
change during centuries of Celtic into English surnames. But it is not on
purity of race that Ireland, any more than other countries, would rely.
Difference in blood was recognised, but it was not held a bar to
patriotism. Ireland was the common country to which all races who entered
it were bound by every human interest. It had a unity of its own, which as
“the Pale” shrank and the sense of country deepened, laid hold on the
minds of the later as of the earlier inhabitants. Belfast Orangemen
indeed, as “the loyalists of Ireland,” accepted the doctrine in 1886 that
a Parliament in Dublin chosen by the whole Irish people “must be to them a
_foreign_ and _alien_ assembly.” It was the echo of an old fiction. We
know that the ascendency of a constantly recruited English group, above
all of safe men born in England and consequently held worthy of trust
there, was for seven centuries the favourite dream of English politicians;
and that it invariably failed before the broader and humaner influences
that move communities of men dwelling side by side under the equal
heavens. Faithful citizens of Norman or English stock did brave service
for their country: “Ireland-men” they called themselves, or “commonwealth
men,” or “good ‘country men’ as they would be gloriously termed.” What
name indeed is there for men of Ireland to take unless they frankly own
their country? The term chosen for them by _The Times_: “The British
Colony on the other side of St. George’s Channel” will scarcely endure.
Mr. Balfour is probably the last statesman to press a claim to ascendency
in the partial favour of Great Britain for a selected group, “who, of all
others in the United Kingdom, surely deserve the protection of England and
Scotland.” It is a curious return in these days of equal citizenship to
the tyrannical distinctions of the middle ages—“wild Irish our enemies,
Irish rebels, and obedient English,” who had varying claims on the
dominating race according to their deserts.
To return, however, to the special charges urged against Gaelic life in
Ireland. The island may be the same, and the race of ancient date, and
with no less than their ancient pride; but what of that, if the people
could not have, nor ever did have, a polity of their own, nor any Irish
institutions nor an Irish idea of government? “The fiction has been
assiduously propagated,” says a Unionist writer in the _Morning Post_, “by
the Irish extreme section ... that the nationhood of Ireland is a thing
which once had an actual objective existence.... But such teaching,
however romantically attractive, is simply incompatible with the plain
facts of history. Ireland as a political entity dates from the period of
the conquest by England, when for the first time the princes and
chieftains with their followers were fused into something like national
unity.” So Macedon might have boasted that for the first time it had put
some order into Greece, given it a political entity, and brought it into
line with modern Imperial civilization.
Is this unhistoric statement all the Unionists have in the end got to give
us of the Irish story? Is there nothing behind it—no trace of any soul of
the people in Ireland? How then was it that with so incomplete a military
or political organization, they could defy for centuries the whole power
of England? Ireland in fact drew her strength from a remarkable State
system of her own. In the Gaelic form of civilization the national
sentiment did not gather round a military king, as in the Teutonic states,
but round a common learning, literature, and tradition; and this exalted
belief in the spiritual existence of a nation, though it is not the
English idea of a kingdom, may belong nevertheless to a high order of
human aspiration. It produced in Ireland a literature which has not been
surpassed among any people for its profound and ardent sense of
nationality.
The union of the Irish people lay in the absolute community of learning,
institutions, and law. Irish law was one of the most striking products of
Irish genius. If we know nothing of its beginnings, we see it as a body of
custom that spread over the entire country, varying not at all from
province to province. Highly finished, highly technical, worked on for
hundreds of years by successive commentators, it still remained the law of
the people, and claimed their allegiance—an allegiance could only have
been possible to a law founded on reason and justice, and expedient and
efficient in practice. If we take that which in an agricultural country
comes home to every peasant—the land system—the native law in Ireland was
equal, enduring, and respected. The farmer was assured a fair rent and
compensation for improvements. No chief in Ireland could molest the people
in their ancient privilege; he could neither evict them, nor take their
grazing-lands, nor make a forest waste and impose a forest law for his
hunting. Five hundred years after the Norman invasion Irish farmers
holding under the old Irish law were still paying the same rent that their
forefathers had paid centuries before. It is certain that no system can
wholly prevent misfortune, injustice, or usurpation; but there seems to
have been among the people a social content far beyond that in mediæval
England, a long security of farmers, a passionate belief in their land
system, an extraordinary tenacity in its defence against any other, and as
far as we can see no bitterness of classes. A satirist might mock at the
depth of the chief’s pocket, as deep as the pocket of the Church or of the
poet; but the Irish no more wanted to get rid of the chief than of the
poet or the priest. In Tudor times the only way in which a chief could be
absolutely alienated and divided from his people was by pledging him to
the English land system and government.
The Irish were further reminded of their essential unity by the great
genealogical compilations in which every element of the population, Celtic
and aboriginal, free and unfree, were traced to a common ancestry. Pride
in the country which they possessed was maintained by the _Dinnsenchus_ or
collection of topographical legends dealing with hundreds of places,
mountains, rivers, earthworks, roads, strands, venerable trees, in every
nook and corner of Ireland—none elsewhere—all evidently things of interest
to the whole people. The dignity of their race and history was recalled to
them in the semi-legendary history of pagan Ireland—which is really a
great epic in prose and verse, in two main sections, the Book of Invasions
and the Irish Book of Kings. The subject of this work is simply Ireland.
It has no other connecting motive than to satisfy the desire of the Irish
to possess a complete and brilliant picture of Ireland from all antiquity.
The charge was a solemn one, and carried out by generations of scholars
with exact fidelity. There is no parallel elsewhere to the writing down of
the great pagan epics five hundred years after Christianity, with no more
direct influence of Christianity on them than we might find in the Odyssey
or the Iliad.
Nor was their language the least of the spiritual possessions of the
Gaelic people—that language which, following their people over Scotland,
Lowlands and Highlands and the Isles, remained for some fourteen centuries
the symbol of immemorial unity of their race. The pride of the race in
their language was beyond that of any other people in Europe outside of
the Greeks and Romans. Grammars of Irish were written in the eighth or
ninth centuries, perhaps earlier, full of elaborate declensions and minute
rules, accounts of obsolete words and forms and esoteric literary jargons,
treatises on the Ogham alphabet, dictionaries of celebrated men and women
of Ireland from remote antiquity, numerous festilogies of the national
saints in prose and verse, with their pedigrees and legends. What mediæval
language in Europe had a school of grammarians, and at what date? It may
seem strange to Englishmen that this affection should have stirred the
hearts of pastoral and agricultural people; but no Irish man was far
removed from the immaterial and spiritual life of his country. The famous
works in verse and prose, the stories, the hymns, and the songs of heroes
old and new, were known by heart, and handed down faithfully for centuries
in thousands of cabins; and the Irish tiller of the ground in remote
places has even in our own day a rich vocabulary of six or seven thousand
words. The pleasure and pride of art, so widely diffused among the mass of
the people by the Irish scheme of life and education, became a natural
part of the Irishman’s thoughts. Their main concern in the Danish
devastations was the threatened destruction of an ancient order of
civilization. Before the “flood of outlanders,” says the “Colloquy of the
Sages,” written probably before 850, “every art will be buffoonery, and
every falsehood will be chosen.” Poems would be dark, music would be given
over to boors, and embroidery to fools and base women so that no more
beauty of colour could be expected; everyone will turn his art into false
teaching and false intelligence, to seek to surpass his teacher.
Instruction and skill would end, they lamented, with lawful princes and
sages, belief and offerings, the respect of ranks and families, due honour
of the young to the old, the ordered hospitality of the wealthy, and the
high justice on the hilltop: “On every hill-top treachery will adventure.”
The great expression of Gaelic life was the assembly of the people, those
“parles upon hills” that seemed so grievous to Elizabethan rulers. In
every Federal State, such as Leinster or Munster, and in every petty
State, they were the ever-recurring guarantee of the national
civilization. The feeling of the people is shown by the constant
references to “frequent assemblies,” “an assembly according to rules,” “a
lawful synod.” The serious organization of these gatherings in stately
form had been brought to a fine art. The business and science of the
country was there open to the whole democracy. Many were the directions
for the right conduct of those who took part in the assemblies—against
stiffness of delivery, a muttering speech, hair-splitting, uncertain
proofs, despising books, inciting the multitude, very violent urging,
playing a dangerous game to disconcert the meeting, above all against
ignorant or false pleading. The authority of the assembly in its
exposition of the law was never questioned by the people.
“Irishmen,” wrote an English judge to Henry VIII., “doth observe
and keep such laws and statutes which they make upon hills in
their country firm and stable, without breaking them for any
favour or reward.”
“As touching their government in their corporations where they
bear rule,” wrote an Englishman, Payne, from Connacht in 1589, “is
done with such wisdom, equity, and justice, as demerits worthy
commendations. For I myself divers times have seen in several
places within their jurisdictions well near twenty causes decided
at one sitting, with such indifference that, for the most part,
both plaintiff and defendant hath departed contented; yet many
that make show of peace and desireth to live by blood do utterly
mislike this or any good thing that the poor Irishman doth.”
A poem of about 1100 A.D. describes how the people of Leinster, by their
tribes and families, celebrated their fair of Carman—Carman reputed to
have come “from delightful Athens westward.” Every third year they held
the feast and two years for the preparation. The kings sat in order in
their Forud (a word cognate with _Forum_), surrounded by their councillors
and retinue. “Each one sits in his lawful place, so that all attend to
them to listen.” The women were seated in the same manner, “a noble, most
delightful host, women whose fame is not small abroad.” There was a week
for considering the laws and rights of the provinces for the next three
years. “There aloud with boldness they proclaimed the rights of every law
and the restraints.” “Annals there are verified, every division into which
Erin was divided; the history of the household of Tara—not insignificant,
the knowledge of every territory in Erin, the history of the women of
illustrious families, of courts, prohibitions, conquests.” The accurate
synchronisms of noble races, “the succession of the sovereign kings, their
battles and their stern valour,” “Fenian tales of Finn, an untiring
entertainment,” proverbs, maxims, royal precepts, occult poetry,
topographical etymologies, the precepts of law-givers and sages—all came
in their turn; and inscribed tablets, and books of trees, satires, and
sharp-edged runes.
While the memory of their origin, laws, and the title of every man to his
land, was thus imprinted on the people’s minds, every other element of
their civilization was displayed. Every day of the seven there was a show
of the national sport of horse-racing. Commerce had its three markets—a
market of food; a market of live stock, cows and horses; and the great
market of “the foreign Greeks,” where gold and noble clothes were wont to
be, carried from the branching harbours that brought hosts into the noble
fair. There were trumpets and music of all sorts, and poets, exerting
their utmost power till each art had its rightful meed in proper measure
from the king. Professors of every sort, both the noble arts and the base
arts, were there selling and exhibiting their competitions and their
professional works to kings, and rewards were given for every art that was
just or lawful to be sold or exhibited or listened to. The people might
enjoy the rivalry of rustic buffoonery, pipes, fiddles, chainmen, bonemen,
and tube players, a crowd of babbling painted masks—all in their due
place. Everything was provided for—the slope of the steeds, the slope of
the cooking, the slope of the embroidering women. And finally the day of
solemnity, masses, adorations, and psalm singing, and the fast of all of
them together; and so the assembly came to an end “without breach of law,
without crime, without deed of violence, without dishonour.”
The king who presided over these assemblies was not a ruler in the
Teutonic military sense. Ireland was free from two sources of military
rule—the danger of conquest, and the fear of any attempt to force on the
people a new and alien law. Protected by distance and the ocean, the
island was long secured from foreign conquest: nor did the Irish need a
central military power to enforce a native code which was already strong
in the allegiance of the people. In this situation of comparative security
the natural aim of the Irish was to preserve their local freedom. They
objected, as the English after them have done, to military establishments
and to compulsory service as systems which were a danger to liberty—and
“liberty,” as the English officials complained, “was the only thing that
Scots and Irish constantly contended for.” Herdsmen and ploughmen who
carried on the business of the country refused to serve as soldiers for
more than a few weeks in the year, and that only after sowing and reaping
was done, and the cattle driven to pasture. Ireland was not in fact a
military country. The dangers to peace lay mainly in the Gaelic law of
succession to kingship and chieftainship, according to which the best man
of the ruling kindred was elected by the freemen. Such a system provided
frequent occasions of fighting—in rivalries of candidates and revolts of
ambitious aspirants to power, all too ready to look for outside support,
no matter where, from a neighbouring chief, a Norman baron, or an English
deputy. From such variety of petty conflicts the feudal law of
primogeniture saved other countries to some extent, though, as we know,
that too was very far from insuring peace or harmony at all times.
Ireland no doubt suffered under this very conservative system of election,
come down from the honoured past. The evils, however, were not incurable
in a country left to itself. An attempt was already made to lessen them by
the custom of electing along with the chief a Tanist or successor; and we
can trace in Ireland also the growing custom of inheritance from father to
son. The way of natural development was closed, not by the incompetence of
the Irish, but by foreign enemies, who were careful to aggravate the
mischief. It was the Danish wars and their results, and far more the wars
of the English lord deputies, which made the very life of the tribe depend
on military leadership and on that alone. The danger of local strife among
independent states was in like manner exaggerated beyond measure when the
deputies adopted the ferocious policy of advancing the English conquest by
isolating the territories, and forcing them, on one plea or another, into
civil war with their neighbours. Every territory had to maintain a retinue
of soldiers out of all proportion to the normal state. Natural conditions
were overturned, and statesmen then as now crippled the communities they
governed with preparations for war in the interests of peace.
In the same way the growth in authority of the high-king was frustrated by
external violence. During the Danish invasions the position of the
high-king was of great importance as leader and centre of the national
resistance, and head of the general assemblies of the country “to bring
concord among the men of Ireland.” After these wars, when Ireland came
more directly under European influences, efforts were made there, as in
other countries, to shape a “kingdom” in the modern sense of a centralised
monarchy. Such efforts after unity, which in Ireland, as in every other
European country, were in any case slow and difficult, found a determined
enemy in England from the time of Ruaidhri O’Conor and Henry II. onwards.
In English interests, under the English “Lord of Ireland,” the island was
to have no home-born king “coming to Tara,” as the mediæval phrase went,
and not even a strong governor of any kind.
“A phantom government,” wrote Richey, “planted at Dublin fulfilled
none of the duties of a ruler, but by its presence prevented the
formation of any other authority or form of rule.”
If any leader appeared among the Irish of authority in peace or power in
war, the whole force of England was immediately called in to his
destruction, and to reestablish confusion and strife. “Ireland were as
good as lost,” the English said, “if a wild wyrlinge should be chosen
there as king.”
It cannot be doubted that the Irish system had sprung from the soul of a
people with an intense national consciousness, that it bound the various
clans under obedience to one common law, that it gave to all the
inhabitants, rich and poor, learned and simple, an enthusiasm for their
race and country which rooted that law in their hearts, and endowed it
with a tenacity of life that no political misfortune could destroy.
The people were inspired by more than material considerations, and through
centuries of suffering nothing but death could extinguish their passionate
loyalty to their chief and devotion to their race. English governors could
never catch the reason or meaning of that patriotism. “It should seem,”
said Perrott, the ostentatious proclaimer of English superiority, “that
they think, when once they leave their old customs, ... they are out of
all frame or good fashion, according to that saying, _They which are born
in Hell think there is no Heaven_.”
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
England, however, according to the Unionist teaching, offered a better
thing. She “invented” for Ireland a Parliament. What did the Irish make of
that? Here we enter on a new range of denunciations—the inadequacy to
English ideas and benevolences, not of Iberians and Celts, but of Normans
and of English themselves.
Every form of Parliament, the best that England could do, ended in
Ireland, according to Mr. Balfour, in a “series of failures.” Ireland was
already well accustomed in every one of its territories to meetings of
notables and assemblies for public business; and there was no special
difficulty in introducing among a people of their training a
representative Parliament. But from this “British invention” the Celtic
people were in effect shut out, either formally or practically. The
Parliament was conferred on Normans, who had so distinguished a history in
England, and on English Protestants. And yet, we are told, every
experiment of an “Irish” Parliament failed; under the same malign
influences, it would seem, as were set forth by a lord deputy under Henry
VIII.: “As I suppose, it is predestinate to this country to bring forth
sedition, inventions, lies, and such other naughty fruits, and also that
no man shall have thanks for services done here.”
This seems to have been the view of Mr. Litton Falkiner, who in his Essays
has drawn attention to the conspicuous faults of the Parliament as shown
in the history of Poyning’s Act. That statute, according to him, reduced
Ireland to legislative impotence, but the Parliament willingly and with no
difficulty passed it; and not only was the bridle placed in the mouth of
the Irish legislature with its own assent, but it was so placed by its own
desire, and the Parliament long and strenuously resisted its removal. An
explanation, suitable to Ireland, for this singularly irrational conduct
is given.
“Not the least curious feature in the history of the subsequent
operation of Poyning’s Law is the great inconvenience which it
occasioned to the English Government, and its corresponding
popularity with the anti-English element in the Irish
legislature.”
The conclusion would seem to be that the atmosphere of the island so
contaminated the Anglo-Norman settlers that they exchanged reason for
fantastic inconsequence, and replaced self-interest by an insanity of
“patriotism.” We have here a typical illustration of the way in which the
“Irish” Parliament has been thrown under rebuke, and the spirit of its
condemnation. It is interesting to ask whether the facts bear out this
theory of unreason, and of a wilfulness inexplicable and characteristic of
this island alone.
There is a close parallel between the history of Poyning’s Act in 1494 and
that of the Union in 1800, so that the one may help us to understand the
other. In the fifteenth century, as in the eighteenth, trade and wealth
were increasing fast in Ireland with commercial intercourse of the
peoples, and barriers were breaking down between the two races. In both
these centuries alike the commercial jealousies of England were quickened
by the growth of Irish trade, and its political fears by a question of the
Crown—by Irish preference to the House of York over that of Lancaster
under Henry VI.—and under George III., by views held in Ireland as to the
Regency. Alike with Poyning’s Act and with the Union the proposed remedy
was to bring Ireland under closer subjection to England. The statute
ordered that no Parliament should be held in Ireland till the Council had
certified to the King under the great seal of Ireland all the causes and
considerations, and the Acts that should pass in it; and had received the
King’s license under the great seal of England, as well in affirmation of
these Acts as to summon Parliament. The means used for carrying this Act
and the Act of Union were practically the same; the promise on each
occasion was that the Act would ensure the order and liberties of Ireland;
while for the unconvinced there remained threats, military demonstrations,
and bribery—both subtle and extensive. Every place of authority in the
country was newly packed with English officials, all servants of the
Lancastrian party in power. A Parliament was called from which all the
great earls were absent—Ormond, Desmond, Kildare. This mere shadow of a
Parliament—strangers, place-hunters, and men, as we shall see, under
sentence of ruin, without natural leaders, controlled by English
officials—was required to accept the King’s decree for “the whole and
perfect obedience of the country.” In Poyning’s Law notice was given of
the King’s intention to make an Act for the general resumption of his
whole revenues since 1327, an Act never equalled by any measure before or
since for throwing all civil rights and liberties into the hands of the
Crown. From pieces of parchment hanging to it with the autograph of Henry
VII. written at the top, it appears that savings were made in favour of
various persons exempting them from the operation of this Act. Thus
according to their conduct or deserts at the passing of Poyning’s Law, men
would find ruin or protection at the King’s hand. Alike in their ignoble
beginnings, Poyning’s Law and the Act of Union remained in their later
developments the source of dissension and the great battle-ground between
English rulers and Irish subjects.
So much for the passing of the Act with “no difficulty.” How it was
intended to work by Henry VII. we cannot tell, but the violent methods of
later Tudor sovereigns respected no barriers. Whenever Poyning’s Act stood
in their way, the first remedy was an Act for its “repeal”—that is, an
“exposition” how it was to be understood, or an enactment that all
statutes of that Parliament were valid, “notwithstanding Poyning’s Act.”
No Tudor ever proposed to “repeal” that part of the statute which limited
the freedom of Parliament: but only to abrogate the formalities which
interfered with his own direct method of government. The Dublin
Parliament, for its part, clearly saw that if the Act gave a tremendous
power to the Crown, it yet held provisions which were a protection, so far
as they went, from arbitrary tyranny. The preparing, before a Parliament
could be called, of Acts to which the Seal of Ireland had to be affixed
before they went to receive the Seal of England, assured some discussion
in Ireland, some degree of publicity, and some hindrance to unexpected
laws sprung upon it by a foreign and uncontrolled Executive, and rushed
through by a packed majority. Parliament, in fact, held that law and
recognised order were safeguards to liberty; and its battle in Dublin was
for the security of law, even of Poyning’s Law, against the mere will of
the King and his ministers: a motive neither trivial nor irrational.
The first conflict arose with the Parliament of 1536-7, which was called
to establish what we may call the Protestant succession, to declare Henry
head of the Church, to order the suppression of abbeys, and to decree vast
confiscations in Leinster to the King’s benefit (in many cases estates of
members of the Parliament), with the purpose of new “Plantation.” It was
not likely that such laws would be peaceably drawn up in Dublin and
offered to Henry in the form he preferred. On the first day of its
session, May 1st, 1536, therefore, the “repeal of Poyning’s Act” was
ordered—that is, to declare it void for that Parliament. The experiment
was new and untried, and the Houses obeyed. By the “repeal” Henry and
Cromwell were set free from every restriction. They could send over new
and unforeseen bills, neither known nor discussed in Ireland, without
agreement with the Irish Council, at any time before or after Parliament
opened, and could alter bills during the session as they chose. Every
shred of protection to the framing of bills in Ireland, or their
discussion there, disappeared. The usurped powers were used to the
uttermost. In seventeen days ten Acts had passed the Commons. Cromwell
wrote to delay the Act for the Succession if it was still in an incomplete
stage, probably for some changes. The King wrote to desire an astounding
Act to confer on himself all the land in Ireland. But resistance had
already begun. Parliament had attempted to protect the country by
providing in their Repealing Act that a number of matters should be
excluded from its operation, such as the liberties of boroughs, etc., and
that no laws should be enacted by this Parliament but such as were for the
honour of the King, the increase of his revenue, _and_ the commonweal of
the land. As Acts poured over from England members pleaded that they were
contrary to these conditions, and prepared to carry the matter to a court
of law. The struggle lasted eighteen months. Parliament was adjourned,
contrary to law, six times in the next year. Finally Commissioners were
sent over in September, 1537, carrying with them a series of Acts drawn up
in England, and added others of their own devising; all to be passed
“notwithstanding Poyning’s Act.” The limitations which Parliament had
attempted to set up in their “Repealing” Act were set aside by a new
“repeal,” which declared the “mere truth” of the first to be that every
Bill was valid which concerned _either_ the King’s honour, _or_ the
increase of his revenue, _or_ the common weal of the land: and that anyone
who brought the question to a suit in any court of law should suffer as a
felon.
In this first battle, Parliament, taken by surprise, was defeated. Every
attempted safeguard was thrown down, and nothing left but the royal
tyranny. “The King’s causes in Parliament take good effect,” wrote the
Commissioners; and twenty-four Acts were passed. Having finished their
work, and having discovered in searching among old Acts that this
Parliament was illegally held, they hastily dissolved it, making provision
to hide its unlawful character.
The Parliament of 1541 which gave to Henry the title of king was the only
one of the century in which we find no proposition to repeal Poyning’s
Act. Other means had been used during four years of widespread and
deceitful negotiations (1537-1541) to ensure the King’s success. A series
of false promises as to rights in land had been cunningly dispatched
through the country. There was a careful scrutiny of the coming
Parliament. Lists were drawn up for Henry’s benefit. The House of Lords
was safe. The vast majority of prelates in it were docile nominees of the
new head of the Church. Of the score of peers on the list six were
reported to Henry as having “neither wit nor company of men”; one was wise
in counsel but without any soldiers; and nine were new creations, at the
King’s bidding—six of them scarcely a month old, some indeed still waiting
for their letters patent. In the Common House were divers knights and many
gentlemen of fair possessions, but no list of these is given. The House
had evidently been packed: for an Act was passed repealing the old statute
against non-residents and proroguing of Parliaments. There was indeed a
concession to placate opponents. “From henceforth” the knights and
burgesses were to be resident, under penalty of fines—a provision well
calculated to disappoint the hopes it raised. Under these circumstances
the repeal of Poyning’s Act was for once dispensed with. Having secured
his title of King, Henry could fling away his Parliament, and no assembly
met again for thirteen years.
Queen Mary called her one Parliament in 1556 to carry two Acts which
surpassed in terror and ferocity any yet proposed. The Act for the
confiscation and plantation of Leinster lands, ordered Leix and Offaly to
be turned into the King’s and Queen’s counties, the first shires made
since the time of John; and desired they should be “planted” with “good
men.” A second Act gave power to Commissioners to perambulate the whole
realm and divide it into shires as they thought convenient, without
further reference to Parliament. Henceforth any Irish chief or Norman lord
might learn suddenly that by a mere decree of the Deputy his authority was
abolished, his territory dissolved into a chaotic mass of helpless people,
under officers speaking a foreign tongue, and laws wholly unknown to them,
the land leased out according to English tenure, new taxes imposed, and a
Commissioner with his hangmen placed in their midst to govern “in a course
of discretion.”
When Parliament met, two drafts of the Act for “the well-disposing” of
Leinster lands were “lost.” The loss or embezzlement was perhaps contrived
with the hope of resisting any third Act that might arrive after the
session had opened, as contrary to Poyning’s Law. If so, the hope was
vain. An Act was prepared to explain “how Poyning’s Act was to be exponed
and taken,” and to enact that since events might happen, (as for example
the loss of unwelcome drafts) during the time of Parliament necessary to
be provided for, which at the time of the summoning of Parliament were not
thought or agreed upon, therefore the Irish Government might send over
considerations and causes for new ordinances, and that these being
returned under the Great Seal of England might be enacted, notwithstanding
Poyning’s Act. A third draft was sent over, and the Act of Confiscation
passed—the first of the Great Plantations.
That sinister measure, “An exposition of Poyning’s Act,” was again
prepared for Elizabeth’s Parliament of 1560, which was called to declare
the Queen’s Title and her Supremacy over the Church. But the Houses
disappeared before it was brought in:
“The Lord-Deputy is said to have used force, and the speaker
treachery.... I heard,” said Dr. Lynch, “that it had been
previously announced in the House that Parliament would not sit on
that very day on which the laws against religion were enacted;
but, in the meantime, a private summons was sent to those who were
well known to be favourable to the new creed ... the few members
present assented, and the speaker won for himself the name of
being the chief author of the laws enacted against the Catholic
religion.”
The Deputy Sussex sought to calm the rage of the Parliament by pledging
himself solemnly that the Statute of Uniformity should not be enforced
during Elizabeth’s reign. So violent was the opposition of lords and
chieftains to “the laws against religion,” that Sussex, it was said,
prorogued Parliament and went to England to consult the Queen. Thus it
ended after nineteen days.
After this experience:
“We have small disposition to assent to any Parliament,” wrote
Elizabeth to the Deputy in 1566. “Nevertheless, when we call to
remembrance the ancient manner of that our Realm, that no manner
of thing there ought to be commented or treated upon, but such as
we shall first understand from you, and consent thereunto ourself,
and consequently return the same under our great seal of this our
Realm of England; we are the better minded to assent to this your
request.”
The legal correctness of this regard for Poyning’s Act disappeared in the
course of three years’ preparation for the new assembly. The Parliament
met in 1569 to find the Commons packed with strangers, contrary to the
renewed law which had been won from Henry VIII. in 1542 against the
practice. The gentry of the Pale and the Dublin burgesses protested in
vain against the return of strangers for boroughs which they had never
even seen: “the more words the more choler.” Elizabeth’s vast schemes of
confiscation and breaking up of the old Irish society were met with
hostility. Under pressure of the Deputy, therefore, a second session was
held to pass a single bill, the “Repeal of Poyning’s Act”; on the plea
that grievous sores known to the high court in Ireland could not be
reformed as not having been certified to the Queen. This bill was bitterly
opposed: “so jealous were they that they would not in long time enter into
the consideration thereof.” The remonstrants did in fact force some
concessions; that provisions made by the present Parliament for the common
weal, the augmentation of the Queen’s revenues, and the assurance to her
of lands and profits, which were certified under the Great Seal of
Ireland, and returned to Ireland under the Great Seal of England, should
first be publicly proclaimed in six cities, and only after these
proclamations should pass into law, “Poyning’s Act notwithstanding.”
The way was now clear, and the next session brought the attainder of Shane
O’Neill and the tremendous confiscation of Tyrone and other lands in
Ulster. A beginning was made of Munster confiscations. The Deputy was to
appoint English-speaking clergy to all ecclesiastical dignities in
Munster. Other Acts ordered all Ireland to be reduced to shire land; and
abolished all Irish and Anglo-Norman chieftaincies or “captainships”
except by special patent (thus depriving the chiefs of the benefit of
their indentures), under penalty of death without benefit of clergy, as
the law was drafted in England; the Parliament substituted a fine and
passed the decree with great opposition, for “the matter misliked them
more than the pain.” The Queen herself sent letters ordering Parliament to
pass a heavy impost which must ruin the Irish wine trade, in which matter
“they showed themselves so unquiet that they were more like a bear-baiting
of disordered persons than a Parliament of wise and grave men.” Taught by
experience, the Parliament now insisted on a law to limit the repeal of
Poyning’s Act, in which they explained their reasons for objecting to any
repeal at any time. Before that Act, they said, when liberty was given to
the governors to call Parliament at their pleasure, “Acts passed as well
to the dishonour of the Prince, as to the hindrance of their subjects, the
remembrance whereof would indeed have stayed us from condescending to the
repeal of the said statute,” save for their persuasion that Sydney through
his motion meant only the honour of the Queen _and_ the common benefit of
the Realm (going back in these words to the first repeal of 1536); but
they feared that the like liberty might be abused by other governors, and
therefore enacted that none other should ever use the liberty of Sydney,
and that no Bill should ever be certified into England for repealing or
suspending of Poynings’ Act unless it was first agreed on in a Session of
Parliament in Ireland, by the greater number of the Lords and the greater
number of the Common House, that is by both Houses carrying the Bill by a
separate vote.
The Parliament of 1569, distinguished by a high order of public spirit and
legal ability, was driven to its fatal close in a general war against
those “that banish Ireland and mean conquest,” a striking phrase of
Anglo-Irish patriots.
A new “Repeal of Poynings’ Act” was demanded of the Parliament in 1585.
The reason was again the same—for the more convenient passing of Acts to
deprive the people of Ireland of their land and their religion; Elizabeth
mainly anxious about her property in land, and the deputy about religious
uniformity. There was a Bill to extend to Ireland all the English laws
against Popish recusants, and demand the Oath of Supremacy as a test of
the fidelity of Parliament: an Act for the attainder of Baltinglas;
another for the attainder of Desmond, and a hundred and sixty more
“traitors,” and for the confiscation of Munster; one to limit the
landowners’ old-established rights of conveyancing of land as “likely to
tend to disinherit the Queen’s Majesty.” Such Acts could never be passed
under the formalities of Poynings’ Law.
The Viceroy, however, had to reckon with two new problems. Representatives
of the Irish race sat in the Parliament, Hugh O’Neill in the Lords, some
fourteen Irishmen in the Commons. And the effect of the enactment made by
the last Parliament was now seen in its enactment that “repeal” henceforth
must be carried by a majority in each of the two Houses, voting
separately. By fraudulently counting an absent vote Perrott declared the
Bill carried by one in the Lords: the Commons threw it out by thirty-five.
He prorogued Parliament for three days, and when it met again brought in
the Bill; again the Ireland Party in the Commons defeated the Englishmen
who supported the Government; and thus overthrew, in Perrott’s words, “the
repeal of Poynings’ Act that should have set them at liberty to treat of
that and all other things necessary for the State.” The opponents of
suspension, he said, desired only to make void the whole Parliament
because they could abide no reformation in matters of religion or State;
and would bring the new chiefs, O’Reillys, Maguires, and the rest, into
jealousy of the Parliament. The landowners and gentry, “the stirrers of
Parliament and the lawyers,” on their side declared they feared to give
despotic power to the Viceroy and distrusted his purpose, “some of the
Irishmen either mistaking or conceiving it was framed to another intent
than it did pretend, whereby they drew on them the Deputy’s disfavour, and
displeasure on him from the Queen.”
The defeat of “repeal” showed the Houses their strength. The Lords dashed
new Acts proposed against treason and the trial of accessories—statutes
namely, said Perrott, for the safety of the Queen. The Commons wrecked the
Bill for Desmond’s attainder, striking out eight score names of “men of
living” and leaving only eight. They refused, moreover, to escheat lands
protected by law, and to tax land in a manner tyrannous and contrary to
Irish custom. The “disturbers of Parliament” were met by five adjournments
in eleven months; but the devices by which these sticklers for the law
were finally subdued is too long to tell here. Parliament met at last in
April, 1586, to register the royal will. The Lords read and passed the
four Acts for the attainder of rebels in Munster. The Commons still
resisted for a week. The official intrigue to compel their submission is
confused by the bitter wrangle of the Deputy and the Treasurer for the
honour of the plot. Finally the Desmond confiscations were “wrought out”
of the Parliament with so great difficulty, said Spenser, “that were it to
be passed again I dare undertake it would never be compassed”; and the
Deputy gave the royal assent to the Bill by which over half a million
acres of Desmond land were forfeited by Act of Parliament to the Crown, as
the O’Neill land had been forfeited nearly twenty years before. After
which Parliament was dissolved, with an oration of Justice Walshe, the
Speaker, who, in “the universal comfort of all estates,” asked the Commons
“what is there more of earthly felicity that can be required,” reminded
them that the escheated lands “accepted by the Queen of us” were of far
less value than the smallest portion of Her Majesty’s charges for their
benefit, and mentioned how they had “willingly consented to attaint and
stain in blood Her Majesty’s disloyal subjects and unbar the succession of
their traitorous lines, to the end that the memory of their names may be
quite extinguished.”
Thus after a hundred years the Parliament won its first success in
refusing the repeal of Poyning’s Act. Mr. Litton Falkiner calls us to
wonder at the “curious circumstance” that “successive Parliaments of the
sixteenth century declined on patriotic grounds to abrogate the very
statute the repeal of which was to become the greatest triumph of Irish
patriotism in the eighteenth century,” and insinuates that we may here see
displayed the captious and capricious spirit that infects the
“predestinate” peoples of Ireland. Out of the old habit of contempt it has
being boldly suggested by some that the independence of Parliament, by
others that the Catholic religion, were in no way valued by Irishmen until
they made the discovery that these could be used to annoy and disconcert
England. Such unworthy suspicions must disappear as we watch the grave
conflict of men threatened with ruin, imprisonment, death, in their
struggle to defend the first rights of law, property, and religion.
It was a slow battle, with rare and scanty triumphs for defenders of the
constitution. Long silence followed the first victory of the Parliament in
refusing the repeal of Poyning’s Act: it was not summoned again for
twenty-six years. Its next meeting was amid dark threatenings. The old
sessions in Dublin had been honourably held in “the house called Christ’s
Church situate in the high place of the same, like as St. Paul’s in
London”; Parliament was now ordered to hold its debates in the Castle,
surrounded by extra troops brought to overawe an assembly which was robbed
of even the appearance of free deliberations. When they objected to being
placed over the Castle stores of powder (in a room which had been, in
fact, lately wrecked by an accidental explosion of gunpowder) and made a
reference to Guy Fawkes, their objections were set aside with a scornful
taunt “of what religion they were that had hatched such cockatrice’s
eggs.” From that time began a new and even more ominous story than before.
A fatal doom in fact hung over the two Houses in Dublin. The Irish
Parliament, which at this time had no relation whatever with the English
Parliament, depended directly and solely on the King. The royal policy of
Tudors and Stuarts, in their different ways, was to fortify their personal
authority over Ireland and its Parliament, and by this means to strengthen
the despotic and military power of the Crown; and make Ireland, without or
against its will, a peril to the liberties of England. The natural result
was to bring the Irish Parliament under the angry suspicion of the English
Parliament and people, and create a forced and disastrous hostility. Not
only was the constitutional party in Ireland cut off from the natural
support of their brethren who were fighting the battle of liberty in
England, and separated from its due share in the general struggle for
liberty; but the royal policy finally drove the English Parliament to
determine that all independent action of the Irish Parliament should be
entirely suppressed, and thus brought about a constitutional revolution
which for the first time subjected the Irish Parliament to the absolute
control, not of the King, but of the English Parliament itself. From this
time, it is evident, Poynings’ Act and its repeal took a new significance.
The Parliament which “England gave to Ireland,” that gift “of British
extraction,” was, as we know, very far indeed from the Parliament which
the English won for themselves. The English Parliament had behind it in
effect the people of England. The Irish Parliament was by the Castle
policy separated from the people of Ireland, who were utterly excluded, or
if cautiously admitted were selected in small and discreet numbers from
among those who had cut themselves off from their own people and pledged
themselves to the Government. It was sedulously weakened within by
perpetual infusion among its high officials, its peers, its prelates, and
its members from boroughs and shires, of strangers born across the sea—men
whose special mission was to “banish Ireland” and reduce all to
subservience to the interests of another country. Its Statutes were
treated with negligent contempt: “The same Statutes, for lack they be not
in print, be unknown to the most part of your subjects here ... these of
the Irishrie which newly have submitted themselves be in great doubt of
such uncertain and unknown laws,” the Deputy reported. In 1569 it was
proposed, apparently without any reference to Parliament, to print such of
the Statutes “_as it was desirable for our subjects to take note of_”; in
1571 Recorder Stanihurst carried to London the roll of 170 statutes which
were _thought meet_ to be printed by the new English settler, Carew,
(perhaps the most hated of all by the Parliament itself) and a few
officials—a selection which was in London again corrected by Burghley, and
the printing still delayed.
That a Parliament hampered, mutilated, restricted, demoralised, should
have made such a stand for the country’s interests, testifies to the
vigour of constitutional and national life in Ireland. Society indeed is
so closely bound together in any country that the most imperfect and
exclusive body of its inhabitants must feel to some degree the needs and
aspirations of the whole. Mr. A. M. Sullivan, in the last Home Rule
controversy, rightly argued that it was not what the Parliament was that
chiefly mattered, but where it was: “Anything will do, if it is only in
Ireland,” he said, “the Protestant Synod would do.” The same need for some
representative life of a people in their own land was felt by the Great
Earl of Kildare over four hundred years ago. “You hear of our case as in a
dream,” he cried to the London councillors, “and feel not the smart that
vexeth us.”
The close of the old Irish polity, the fate of the Irish Parliaments, have
a deeper lesson to teach than the supposed faults of the Irish temper,
Iberian, Celtic, or Norman. The story of the old Gaelic State, and of the
later Anglo-Irish Commonwealth, both alike reveal a power of patriotism, a
passion of human aspiration, which cannot find its final satisfaction in
material gifts; and which is ill understood by those who deny to Ireland
fair fame, dignity, and a lofty patriotism, and offer in their place
oblivion, with a promise for the future of Tariff Reform and its financial
consequences. The series of failures that have through seven centuries
followed the English dealing with Ireland have their inexorable lesson:
“That nothing has a natural right to last
But equity and reason; that all else
Meets foes irreconcilable, and at best
Lives only by variety of disease.”
IX.—Ireland As A Dependency. BY PROFESSOR A. F. POLLARD
“The ocean,” said Grattan, with reference to the connexion between Great
Britain and Ireland, “protests against separation, and the sea against
union.” The protests of natural forces cannot be ignored, and the history
of the relations between the two islands is filled with the efforts of
statesmen to find a middle way between the horns of this dilemma, and to
adjust the estranging drift of the Irish Channel, the Irish climate, and
racial divergence to the bonds of common interest imposed by the Atlantic
Ocean and foreign competition upon the British Isles. After a brief
eighteen years of uneasy legislative independence, the pendulum swung to
the other extreme, and the Act of Union inaugurated a century of restless
incorporation; but, for five out of the six and a half centuries of
English parliamentary history, Ireland had a subordinate Parliament. Union
has been the exception, not the rule, in the relations of the kingdoms.
The mere existence of an Irish Parliament was not, therefore, fatal to
England’s security or to the growth of its Empire. A Parliament sat at
Dublin while England won the battles of Crecy and Agincourt, of Blenheim
and the Nile, defied the menace of Rome, defeated the Spanish Armada, and
laid the foundations of British dominion in India, in Canada, in the West
Indies, and in South Africa. Spaniards, it is true, landed at Smerwick in
1579 and at Kinsale in 1601, and French troops landed at Carrickfergus in
1760 and at Kilala in 1798; but Spaniards also landed at Penzance in 1593,
and Frenchmen landed on English soil countless times from the days of
William the Conqueror to their descent at Fishguard in 1796. England has
ever been saved by its navy and not by its parliamentary unions, and the
attraction to foreign invaders has not been an Irish Parliament, but the
existence of Irish discontent. No invasion of Ireland, in spite of the
Irish Parliament, came so near to success as did the Jacobite risings
after the Scottish Union.
The recapitulation of these facts is, perhaps, otiose, except to allay
fears which sane politicians do not entertain; and it is more to the point
to show that the causes of Irish dissatisfaction are historical, and are
identical with those which, under similar conditions, produced a similar
discontent in England. The notion that the Irish are naturally turbulent
and disloyal, while the English are by nature the reverse, is one which
could only have grown up after England had rid itself of those irritants
which cause the Irish friction. Between the Norman Conquest and the
Revolution of 1688 England rebelled against more than half its sovereigns:
some were imprisoned, some were expelled, some were assassinated, and some
were done to death in more decorous fashion; and English treason and
turbulence were once quite as much bywords in Europe as ever Irish
disloyalty was in England. The conventional English pictures of Irish
disorder could easily be capped as late as the seventeenth century by
French descriptions of English lawlessness and barbarity. A French
guide-book, published in 1654, declared that England was inhabited by
demons and parricides, and a few years later another Frenchman averred
that the English were a cruel and ferocious race of wolves. The truth of
the matter is that English and Irish alike prefer to manage their own
affairs in accord with their own ideas, and are only contented and loyal
when this condition obtains. The Revolution of 1688 placed its realisation
within the reach of the English people, and there has been no English
rebellion since. But the sovereign remedy for disaffection was refused the
Irish and the American colonists: the latter rebelled, and, being distant,
achieved their independence. The Canadians followed suit in 1837, but
found peace and prosperity under a parliament of their own. South Africa
was converted to the cause of empire by the same expedient; only the
Irish, who are most at England’s mercy, have been condemned to nurse their
grievance and denied the conditions of loyalty.
The remedy does not apply, we are told, to Irish disorders, firstly
because parliamentary institutions are an exotic(122) unsuited to the
Irish soil and temperament, and secondly because they have been weighed in
Irish balances and found wanting. It is hard to see why they should be
regarded as more exotic in Irish Dublin than in French Quebec: Sir Wilfrid
Laurier cannot be termed a failure as a parliamentarian; British parties
at Westminster have been inconvenienced by the parliamentary skill rather
than by the parliamentary incompetence of Irish members; and the present
menace to parliamentary institutions does not come from Ireland. Nor,
indeed, is the argument one which we can employ with any consistency, for
there is hardly a word in our legal and constitutional terminology that is
not of foreign origin. Parliament itself is not of Anglo-Saxon derivation,
and nearly all the things we cherish most have been imported from
abroad—our racehorses and our religion, our alphabet and our algebra, our
trial by jury and our vote by ballot. Pure-bred civilisations have been
rare, inelastic, and unprogressive, and the test of a nation’s political
capacity lies not in its rigid adherence to its original stock-in-trade,
but in its powers of assimilation and adaptability to its environment. It
is no reproach to us that we have dethroned indigenous deities, nor to the
Irish that they have appropriated our Parliamentary weapons; for it is a
poor country which cannot borrow its neighbours’ wisdom and profit by
their experience.
The misfortune for Ireland was that in the earlier stages of its
development it borrowed so little, and retained so much of its primitive
tribal decentralisation. England would have been no less unfortunate had
William the Conqueror only succeeded in establishing a Norman Pale on this
side of the English Channel, and had England retained its connexion with
Normandy. As it was, the Normans and Angevins cured us of our primitive
tribalism, and then left England to work out its own salvation. The
severance of Normandy from England converted the descendants of William’s
companions from a Norman garrison into an English aristocracy, while the
successors of Strongbow’s followers were maintained by the English
connexion as an alien garrison quartered in the barracks of a dwindling
Irish Pale. At first, indeed, they had spread a thin veneer of
Anglo-Norman conquest over the greater part of Ireland; but baronial feuds
only added to the distraction of native septs; and when Edward I.’s
premature imperialism provoked a general Celtic reaction under Robert
Bruce in Scotland and Edward Bruce in Ireland, Anglo-Norman rule was
doomed. The conquerors either threw in their lot with the natives and
became more Irish than the Irish, or withdrew within the Pale and
maintained a troubled existence by sowing division throughout the rest of
the realm. Hence the Irish were always the enemies, seldom the subjects of
the English Crown; and outside the Pale there was no English government of
Ireland during the middle ages. Constitutional relations only existed
between England and the Pale; relations with Ireland outside the Pale were
in that state of nature, in which, says Hobbes, the life of man is “nasty,
short, brutish, and mean.” The Government had not the means to govern; it
felt and it acknowledged no obligations of duty or humanity towards its
foes outside the Pale.
This Pale, about twenty miles broad and sixty miles long, was almost as
narrow and quite as lawless as the Welsh Marches or the Scottish Borders;
and it was the nursery of the English-seedling-parliament in Ireland. A
sort of parliament containing knights from a dozen shires had been
summoned in 1295; boroughs appear to have been represented first in 1310.
It was only designed to supply the financial needs of an English
Government, and give statutory form to the edicts of Dublin Castle; and
the statutes of Kilkenny (1367), which penalised everything Irish, were
merely striking examples of the ferocity and the futility of its customary
legislation. Nevertheless, it began to strike feeble roots in Irish soil,
and when, in 1374, Edward III.’s deputy directed the clergy and laity of
the Pale to send their representatives to Westminster, their constituents,
while obeying, instructed them to reject all financial demands upon
Ireland made at St. Stephen’s. Demands made at Dublin were not, however,
much more fruitful, and for thirty years in the fifteenth century only one
Irish Parliament met. Spasmodic efforts by sovereigns and royal princes
like Richard II., Lionel and Thomas (Dukes of Clarence), and Richard (Duke
of York,) alternated with longer periods, during which the Crown abandoned
the government to the greatest chieftain in the Pale, and made believe
that the power he wielded was due to his royal commission. Richard of
York, indeed, established a reputation for vigorous rule which won him the
support of the Parliament of the Pale in his assertion of an independent
kingship in Ireland after his defeat in England in 1459; and the
Anglo-Irish, either out of gratitude to him or of spite to the Tudors,
afterwards discovered Yorkist features in every pretender to Henry VII.’s
throne. Their favour to Lambert Simnel and Perkin Warbeck precipitated
Poynings’ laws.
These famous enactments were aimed at Dublin Castle rather than at the
Dublin parliament. The Crown had always controlled Irish legislation, but
the control had been exercised through a deputy, who was often more
powerful in Ireland than the Crown; this independence was to cease, and
the control of Irish legislation was transferred from the Irish deputy to
the English Privy Council. No Parliament was to be summoned in the Pale
without the consent, and no legislation introduced without the approval,
of that body. Acts previously passed by the English Parliament were
declared in force in Ireland, and in practice the English Parliament
proceeded to legislate for, though not to tax, Ireland without the
concurrence of its Parliament. Poynings also attempted to conquer the
native Irish, and to rule the Pale according to English ways; but the
expense proved greater than Henry VII. could bear, and, with the bit of
Poynings’ laws in his mouth, the Earl of Kildare was sent back to govern
the Pale in the time-honoured fashion.
Ireland was one of the questions upon which Wolsey and Henry VIII.
disagreed. The Cardinal’s policy was to neglect Ireland and save expenses
in that direction in order to act as the paymaster and to pose as the
arbiter of Europe, with the result that on the eve of his fall, England’s
hold on Ireland was said to be weaker than it had been since the conquest.
When Wolsey was gone, Henry’s imperialism found vent in Ireland as well as
in other spheres, and it was stimulated by the appearance as early as 1528
of Spanish emissaries at the courts of Irish chiefs. But the brutal hatred
which later conflicts engendered did not inspire the Irish efforts of
Henry VIII. His warfare in Ireland was less ferocious than that which he
waged on Scotland, or on the monks of England. If he confiscated the lands
of Irish monasteries, he shared the spoils with Irish chiefs, and he also
confiscated the lands of habitual absentees; and if he proscribed the Earl
of Kildare, he gave earldoms to O’Neill, O’Brien, and MacWilliam. Whatever
plans for the expropriation of the Irish clans were propounded to his
ears, his own policy was not expropriation, but the conversion of Irish
chiefs into Irish peers holding their lands of him as their king; and by
the common testimony of English and Irish alike, the land enjoyed greater
peace and prosperity at the end of his reign than it had within living
memory. The destruction of papal jurisdiction was no grievance to the
Irish, for pope after pope had prohibited their preferment and restricted
Irish sees to men of English race. Even Edward VI.’s Acts of Uniformity,
which were applied to Ireland without the authorisation of its Parliament,
evoked no Irish rebellion; and so mild was religious conflict that there
was no Irish martyr under Protestant Edward VI. or under Catholic Mary.
The permanent schism between the two races was, indeed, due neither to
politics nor to religion, but to the expropriation of the Irish from their
land. At the middle of the sixteenth century the antagonism between
English and Irish was slighter than that between English and Scots, or
that between Britons and Boers in 1900. Men can heal the wounds of the
conquered, but those of the disinherited fester for ever, unless the race
dies out or restitution is made. The Irish are the only white race that
the English have evicted in modern times. They ate up the land piecemeal
because there was no Irish State to be subdued by political conquest;
because their arts of division, which failed against Scottish national
feeling, succeeded against Irish septs; because the English conquest of
Ireland was, in fact, a barbarian conquest achieved by a more or less
civilised race centuries after the normal age of white barbarian conquests
had closed. No conquered States pay ransom with the wholesale confiscation
of the lands of private individuals; that is a price which is only exacted
from the disorganised and the defenceless.
This process began with an Act of Philip and Mary, supported by the Roman
Catholic Church, which was still the Church of the English rulers rather
than that of the Irish people; and the Lord-Deputy Sussex was required to
permit the Primate to “exercise and use all manner of ecclesiastical
censures against the disordered Irishry.” Leix and Offaly, where the
O’Conors and O’Mores had rebelled under Edward VI., were confiscated to
the Crown and converted into King’s and Queen’s Counties. They were to be
planted partly with English settlers and partly with such Irish as would
abjure their native language, laws, and customs. But it took more than
half a century to carry out the plantation, and eighteen rebellions broke
out before the natives could be eradicated from the soil; even when the
miserable remnants had been transplanted to Kerry, many of them straggled
back to live as hirelings on lands that had been their own. Such was the
new model on which Ireland was to be moulded into “civility and good
government;” and in 1622 a Royal Commission pronounced this plantation to
have been well begun and prosperously continued.
Literally, it was a war of extermination, which spread into other parts of
Ireland, and brought political and religious issues in its train. A year
after the Plantation Act, but before Mary Tudor’s death, Sussex wrote that
the native Irish were denying England’s right to Ireland, and preparing to
assist the French and Scots. The events of Elizabeth’s reign taught them
to look rather to Spain and to the Papacy, and by degrees Philip II.,
after whom King’s County and its capital, Philipstown, had been named,
became the patron of the Irish who suffered from the plantation. Religion,
too, came into play. The first Jesuit missionaries had returned in despair
from their labours on the unresponsive Irish soil. But expropriation left
the peasants with little solace save religion, and their religion would
not be that of their oppressor; to them Protestantism meant plantation.
The links between English Government and Roman Catholic hierarchy had been
broken; and Catholicism, which has no natural affinities with nationalism,
became the adventitious ally of the Irish people in their resistance to
the intruding imperialism of their English foes.
This coalition of hostile forces supplied the English Government with what
it considered convincing arguments for persisting in its course; fresh
Jesuit missions to Ireland, and intrigues between Irish chiefs and Spanish
ambassadors sped the policy of plantation by provoking rebellion in
Munster. The way seemed to have been prepared by the death of 30,000 Irish
from starvation in that province within six months, and the pick of
England’s aristocracy, Raleigh, Grenville, Herbert, Spenser, and Norris,
undertook the work of civilisation. They performed it mostly by bailiffs,
who let the land at rack-rents to its former proprietors; and the whole
fabric vanished in the rebellion which flamed out in 1598 on the news of
Tyrone’s victories in Ulster. With the assistance of Spain, Tyrone shook
English rule in Ireland almost to its foundations; but they remained firm,
embedded in the sea. The Spanish squadrons were annihilated in Kinsale and
Castlehaven Harbours, and Tyrone was granted terms of peace. Ireland was
conquered as it never had been before, but England had not yet learnt how
to pacify a conquered country. Four years later Tyrone and Tyrconnell fled
to Spain; the claims of their natural successors were set aside; and their
lands were divided among the Scottish and English founders of modern
Ulster. Thousands of natives, however, remained as tenants on the land of
which they had been robbed, “hoping,” wrote the Lord-Deputy, “at one time
or other to find an opportunity of cutting their landlords’ throats.” The
unique character and the success of the Ulster plantation were due less to
the original planters than to the Calvinistic Scots who found there a
refuge from Laud and the Stuarts, and like the Pilgrim Fathers regarded
themselves as a people chosen to root out the Amalekite and Philistine
natives. Like the founders of New England, too, their relations with the
natives were far worse than those of the southern planters in Ireland, and
the southern planters in North America.
Thirty years later the natives of Ulster found their opportunity, and
wreaked on their landlords, in the massacre of 1641, vengeance for a
generation of robbery and oppression. There ensued a decade of
indescribable confusion, in which native Irish, Anglo-Irish, Ulster Scots,
English parliamentarians, and Royalists fought one another, until Cromwell
repaid the massacre of 1641 by those of Drogheda and Wexford, and by a
further process of expropriation called the Cromwellian Settlement. More
than two-thirds of Irish land had now passed into the hands of Englishmen;
and although the Cromwellians had to disgorge a part of their spoil at the
Restoration, it was estimated by Sir William Petty in 1664 that not more
than one-third of the land belonged to the native Irish, including in that
category the descendants of Anglo-Norman families; of the remainder, about
half belonged to Elizabethan and Jacobean planters, and half to the
Cromwellians. Nor was the process yet complete: the new expropriation was
followed in 1689-90 by yet another attempt on the part of the Irish to
recover their inheritance, and the failure of that attempt by further
confiscation. At the beginning of the eighteenth century three-quarters of
the land was owned by the English garrison, and the progress of the
century was marked by fresh evictions. Political reasons had ceased, but
economic causes supplied their place; and wide stretches of pasture were
needed in order that the landlords might turn _their_ property to the most
profitable grazing purposes. Only land that would not do for cattle was
left to the Irish peasants; from the bogs there looked up, from the barren
hills there looked down, the Roman Catholic disinherited upon the smiling
meadows of their Protestant supplanters.
Upon this broadening basis of plantation was developed the Irish
Parliament, a Parliament doomed from the first by the very conditions of
its being to a sterile and troubled existence. Here and there from the
days of Elizabeth a native name may be traced in the lists of its members,
but it was almost exclusively the Parliament of a caste, the instrument of
oppression. Ten counties only sent representatives to Elizabeth’s
Parliament of 1560; plantation increased the number to twenty-seven in
1585; and the tale was fairly complete when, after the plantation of
Ulster, James I. next summoned a Parliament in 1613. But the “Irish
interest” which struggled therein against the “English interest”
represented only the Anglo-Irish families, who had struck some roots in
the soil and resented the dictation of English officials. The “native
interest” had no voice in Parliament until O’Connell’s triumph in 1828.
Hence the pitiful impotence of this Parliament, the emptiness of the sound
and fury of its constitutional debates. The beneficiaries of conquest
could not in logic use the armoury of consent. The dependence of the
colonists upon England placed their Parliament at the mercy of the English
Government. They relied upon English force to expropriate the native Irish
and to proscribe the Roman Catholic religion; and this reliance deprived
them of moral and material grounds of resistance to the political,
commercial, and industrial tyranny of their masters. The power which gave
the planters their land could laugh at their constitutional pretensions.
So the Dublin Parliament idly strove to emulate its exemplar at
Westminster, and clamoured in vain for responsible government, for control
of the Irish Executive. In spite of its Irish Parliament, Ireland has
never been given the chance of governing itself.
But nothing could eradicate the “protest of the sea” against union with
England, or the tendency of dwellers on Irish soil to become Irishmen. The
Anglo-Normans had grown _Hibernis ipsis Hiberniores_ in the middle ages,
and nothing short of the Tudor Conquest would have perpetuated English
dominion; for even the gentry of the Pale rebelled in Elizabeth’s reign
against “cess,” a form of arbitrary taxation compared in its
constitutional bearings with ship-money. In their turn the Tudor planters
were gripped by the Irish soil, and resisted the rule of Strafford; and a
fresh immigration of Cromwellian settlers alone enabled William of Orange
to hold Ireland against Tyrconnell and James II. Even their descendants,
too, became part of the “Irish interest” in the eighteenth century; and
Pitt’s Act of Union was England’s final effort to circumvent the
insinuating strength of Irish nature.
The more Ireland’s Parliament succumbed to Irish ideas, the more it was
flouted by England, and the greater the efforts made to secure in it the
predominance of the English interest. England, in spite of itself, was
creating an Irish nation. It had destroyed the system of septs which it
could divide and play off against one another; by imposing on all a
grinding tyranny it had crushed out local distinctions and family feuds,
and had evoked a national spirit which could not be corrupted by bribes or
disarmed by division. Poynings’ Laws were the first attempt at the new
methods of control which led to the Act of Union. They were soon found
insufficient. Not only must Irish legislation be curbed by the English
Privy Council; the English Parliament must also have the power of
initiating and passing laws for Ireland; and this practice grew up against
which Molyneux vainly protested in 1694. In 1719 the practice was
confirmed by an English statute, which transferred to the British House of
Lords the appellate jurisdiction claimed by the Irish peers, and expressly
asserted the right of the British Parliament to legislate for Ireland and
override Irish laws. Similarly the Irish electorate was more and more
rigidly restricted to the English interest; members of both houses were,
by an English statute of William and Mary, required to be Protestants, and
in 1727, by an English statute of George II., Catholics, who numbered
four-fifths of the Irish people, were excluded from the franchise.
The same fear of a nascent Irish nationalism was the real motive for the
Irish penal code, which assumed its worst features under Anne, and was
largely extended under George I. and George II., although no Jacobite
rebellion in Ireland threatened those sovereigns, and the only provocation
was the silent growth of Irish national feeling. That its cause was not
religious is clear, for there was little religious persecution, and the
penal code in Ireland was at its worst in the heyday of English
latitudinarianism. The design was really to shut out the Irish by means of
their religion from political and social influence. Hence their exclusion
from the legal and teaching professions, from the university, from the
army and the navy, from corporations, grand juries and vestries; hence the
barbarous laws by which a son converted to Protestantism could reduce his
Catholic father to a mere life-tenant, by which no Catholic could buy or
bequeath land or inherit or receive it as a gift from Protestants, by
which he could not act as a guardian, a constable, or a gamekeeper,
possess a horse worth more than £5, or keep more than two apprentices. A
Protestant husband who married a Catholic wife fell under this penal code;
a Protestant wife who married a Catholic husband was deprived of her
inheritance; and an Act of George II. declared that mixed marriages should
be null, and that the priests who made them should be hanged. Some
knowledge of Irish history is required in order to appreciate the virtuous
indignation roused by the Pope’s _Ne Temere_ decree. In the eighteenth
century, wives were bribed by the law to turn against Catholic husbands,
and children against their Catholic fathers; the fractious wife, the
unnatural son had only to feign conversion in order to secure immunity and
reward for undutiful conduct, and to deprive those whom they had injured
of the management and disposal of their estates. Such was the system
begotten by force and fraud through the breach of the Treaty of Limerick,
when William III.’s generals, in order to pacify Ireland, guaranteed to
the Irish people the enjoyment of their religious liberties. The arts
which earlier English Governments had used to set chief against chief and
clan against clan, were now employed on a more generous scale to set a
dominant caste against the people they ruled, and to place at the absolute
disposal of an alien garrison the lives, the liberties, the conscience,
the property, and the domestic happiness of the nation it had robbed,
maltreated, and betrayed.
Dominion, however, was not in the eighteenth century an end in itself, but
a means for securing wealth. The age of commercial rivalry had set in
during the latter half of the seventeenth century, and English traders,
who had clamoured for the destruction of the Protestant Dutch, valued
their hold over Catholic Ireland as a means for exploiting its markets and
crushing its competition. One after another of Ireland’s infant industries
was massacred to satisfy English jealousy. Strafford’s boasted
encouragement of Irish linen was a blind to cover his campaign against
Irish woollens. In the reign of Charles II. the importation of Irish
cattle into England was prohibited because it lowered English rents, and
Ireland’s magnificent harbours were kept empty by its exclusion from the
Navigation Acts, lest its incipient colonial trade should compete with
England’s. Deprived of their market for cattle, the Irish developed
sheep-rearing and woollen manufactures; in 1699 the English Parliament
accordingly prohibited the export of Irish manufactured wool to any
country whatever. The hypocritical plea was anxiety to stimulate Irish
linen, which the English Parliament thereupon practically excluded by a
duty of 30 per cent. Having thus impoverished Ireland, Englishmen based
their case against Irish claims to self-government on the thriftlessness
of its people.
All classes in Ireland, Catholics and Protestants, landlords and tenants,
traders and farmers, were, however, involved in this common misfortune,
which in its helpless position the Irish Parliament was powerless to
avert; and in spite of the discord sown with malignant ingenuity between
the English, the Irish, and the native interests, in spite of the
perverted skill of viceroys and primates in maintaining the English
faction by purchasing boroughs and corrupting parliaments, a common
impulse began to pervade the carefully dislocated members of the Irish
body politic. Scandals like “Wood’s Halfpence” provoked a national protest
in Swift’s “Drapier’s Letters”; a common feeling began to mitigate the
ferocity of the penal code, and to inspire a united demand for Irish
freedom from English oppression. The opportunity came with the War of
American Independence. Formed to provide a defence which England could not
afford, the Irish Volunteers demanded the price for their services, and
England had to pay it in Grattan’s Parliament. The history of Ireland’s
packed and bribed and muzzled Parliament affords no proof of Ireland’s
incapacity to rule itself; rather it shows the lengths of cruelty and
violence to which English Parliaments, in spite of their political genius,
of their “glorious Revolution” of 1688, of their vaunted love of civil and
religious liberty, have been driven by fruitless efforts to govern a
gifted people against its will. England sought, and inevitably failed, to
rule Ireland on principles the reverse of those on which were based its
own proud liberties and democratic Empire.
X.—Ireland, 1782 And 1912(123) BY LORD FITZMAURICE
The events of 1782 will always loom large in history, and the views of the
members of the Rockingham Ministry on the proper relations to be
established between Great Britain and Ireland, and the possible course of
events had they met with a negotiator less intractable than Grattan, are
subjects of more than merely historical interest.
In that ministry the Duke of Portland was Lord-Lieutenant of Ireland, and
he took with him Colonel Fitzpatrick as Chief Secretary; Mr. Fox was
Secretary of State for Foreign Affairs; Lord Shelburne was Secretary of
State for the Home and Colonial Departments, and as such was responsible
for the government of Ireland.
The recognition of the claim of Ireland to be a distinct Kingdom, with a
right to a separate Legislature of her own for all purposes, was the
object of the movement of which Grattan was the leader. That this claim
was founded on historic right, and had also on grounds of expediency to be
accepted, was admitted by the Whig statesmen of the time in England. But
they also saw that there were subjects which the geographical position of
the two countries, their past history, and their industrial interests,
rendered it desirable and indeed necessary should be recognized as common
property. Ireland, in their opinion, was too near to be a separate State
with safety to the external relations of Great Britain; she was too
distant to be altogether incorporated with due regard to the efficient
management of her own internal affairs.
The Ministry of Lord Rockingham came into office on March 27th, 1782. The
moment was one of the gloomiest in English history. The nation had just
been stunned by the news of the great surrender at York Town; it was an
open question whether the intelligence of the surrender of Gibraltar might
not be expected to follow; the power of the fleet to cope successfully
with the combined navies of France, Spain, and Holland, was doubtful; an
invasion was discussed in every household in the land as a serious
possibility, and the resources of the country to meet it were disputed by
competent judges. The new Prime Minister was himself a dying man, though
the dangerous character of his illness was concealed; the two Secretaries
of State were separated by mutual suspicions which were rapidly ripening
into estrangement. Ireland was in the hands of the armed Volunteers, and
England’s difficulty was, as usual, Ireland’s opportunity. “The liberties
of America were inseparable from ours,” Grattan said in 1799, referring to
this period; “they were the only hope of Ireland, and the only refuge of
the liberties of mankind.”(124) The satisfaction of Ireland was therefore,
in 1782, the first condition of the safety of England, and imposed itself
on the Ministers as their most imperious duty.
The four grievances of Ireland were, in the words of Grattan, “a foreign
legislature, a foreign judicature, a legislative Privy Council, and a
perpetual army,”(125) and they were set forth in the Amendment to the
Address carried by him in the Irish Parliament on April 17th.(126)
“My opinion,” Fox wrote to Fitzpatrick, on April 28th, “is clear
for giving them all they ask; but for giving it them so as to
secure us from further demands, and at the same time to have some
clear understanding with respect to what we are to expect from
Ireland in return for the protection and assistance which she
receives from those fleets which cost us such enormous sums and
her nothing. If they mean really well to their country, they must
wish some final adjustment which may preclude further disputes; if
they mean nothing but consequence to themselves, they will insist
upon these points being given up simply, without any reciprocal
engagement; and as soon as this is done, begin to attack whatever
is left, in order to continue the ferment of the country. In one
word, what I want to guard against is Jonathan Wild’s plan of
seizing one part in order to dispute afterwards about the
remainder.”(127)
Lord Rockingham, writing in an exactly similar strain, said: “that the
essential points of the Irish demands having first been conceded, it would
be the duty of both countries to consider how finally to arrange, settle,
and adjust all matters, whereby the union of power and strength, and
mutual and reciprocal advantage, might be best permanently fixed;” and he
spoke favourably of the appointment of “Commissioners” on both sides, to
draw up the heads of an agreement between the two countries.(128) Of a
similar character was the language of Lord Shelburne.
“If,” he said, writing to the Duke of Portland, on the day
following that on which Fox had addressed the Chief Secretary,
“the ties by which the two kingdoms have been hitherto so closely
united are to be loosened or cut asunder, is your Grace yet
prepared to advise whether any, and if so what, substitutions are
thought of for the preservation of the remaining connection
between us? If by the proposed modification of Poynings’ Law, so
much power is taken from the two Privy Councils as they are now
constituted, are we to look for any agreement in any new
institution of Council, which may answer the purpose of keeping up
the appendancy and connection of Ireland to the Crown of Great
Britain, and of preventing that confusion which must arise in all
cases of common concern from two Parliaments with distinct and
equal powers, and without any operating centre.”(129)
On May 11th, Fox, in another letter to Fitzpatrick, explained his views;
what he intended, he said, was to grant the “concession of ‘internal
legislation’ as a preliminary, accompanied with a modification of
Poyning’s Law and a temporary Mutiny Bill;” and he hoped that, having made
these concessions, “they might be able to treat of ’other matters’ so
amicably as to produce an arrangement that would preserve the connection
between the two countries.”(130) The other matters were the Final
Judicature and the question of the contribution of Ireland to Imperial
expenses. Shelburne suggested the formal negotiation of “the articles of a
treaty,” for as such, he said, he regarded his proposals;(131) and he
urged a little judicious temporizing in the hope that the situation abroad
might in the interval improve. But Grattan, recognizing the immense
advantage which this situation gave him in negotiating with Great Britain,
refused to entertain any idea of compromise. There was not only, he said,
to be no “foreign legislature, but there were to be no commissioners” to
negotiate a treaty,(132) and there was, above all, to be no delay in
granting all the demands of Ireland. With this information before him, the
Duke of Portland, who from the time of his arrival in Dublin had up till
this moment encouraged both the Secretaries of State to believe that
Grattan would come into their views, and might even make concessions(133)
in regard to the final appeal in judicial matters, now informed them that
the claims of Ireland on all the four principal demands must be conceded,
and conceded at once, as the whole country was in a state of the wildest
excitement, and was rapidly escaping control.(134) The concession of all
the Irish demands was accordingly decided upon. The preliminary steps were
taken on May 17th, by a resolution in both Houses of the British
Parliament, for effecting the repeal of the 6th of Geo. I., c. 5, the Act
by which the right of the British Parliament to legislate for Ireland was
declared; and the necessary Bill was then introduced and rapidly passed
into law.
At the same time, however, another resolution was adopted in the following
terms:
“That it is the opinion of this House that it is indispensable to
the interest and happiness of both kingdoms that the connection
between them should be established by mutual consent upon a solid
and permanent footing; and that an humble address be presented to
His Majesty, that His Majesty will be graciously pleased to take
such measures as His Majesty in his royal wisdom shall think most
conducive to that end.”
On these resolutions Fox commented as follows:
“Ireland,” he said, “would have no reason to complain; the terms
acceded to by England were proposed by herself, and all her wishes
would now be gratified in the way which she herself liked best.
But as it was possible that if nothing more was to be done than
what he had stated to be his intention, Ireland might, perhaps,
think of fresh grievances and rise yearly in her demands, it was
fit and proper that something should be done towards establishing
on a firm and solid basis the future connection of the two
kingdoms. But that was not to be proposed by him here in
Parliament: it would be the duty of the Crown to look to that; the
business might be first begun by His Majesty’s servants in
Ireland, and if afterwards it should be necessary to enter into a
treaty, Commissioners might be sent from the British Parliament or
from the Crown, to enter upon it and bring the negotiation to a
happy issue, by giving mutual satisfaction to both countries, and
establishing a treaty which should be sanctified by the most
solemn forms of the Constitution of both countries.”(135)
For the moment, however, the hope of commencing negotiations with these
objects had to be abandoned, and when, on May 27th, the Royal Message
conveying the intention of His Majesty to concede all the demands of the
Irish Parliament was delivered in Dublin, the Secretary to the
Lord-Lieutenant announced that no measures were then intended to be
grounded on the second English resolution of May 17th. For a time,
however, the Duke of Portland continued to hope against hope, and to
nourish the vain expectations with which from the beginning he had buoyed
himself up, and had misled his colleagues. During the month of June he
allowed himself to be persuaded by Mr. Ogilvy, the husband of the Duchess
of Leinster, and stepfather to Lord Edward Fitzgerald, that Grattan was
not really so intractable as he seemed to be, and in a secret and
confidential despatch, written on June 6th, he urged that the Irish
Parliament should not be at once prorogued, in order to give time for a
possible arrangement in regard to common affairs. But on June 22nd he was
reluctantly compelled to express his disappointment and mortification at
finding that his hopes had proved entirely fallacious, and that Mr. Ogilvy
was a person not to be relied upon. The prorogation of the Irish
Parliament was accordingly suffered to take place on July 27th, and here
the matter ended.(136) “Thus,” exclaimed Grattan to his applauding
audience—“thus have you sealed a treaty with Great Britain; on her side
the restoration of the final judicature; the extinction of her legislative
claim; of her Privy Council; of her perpetual Mutiny Bill; the repeal of
the Act of legislative supremacy; on your side satisfaction! And thus are
the two nations compacted for ever in freedom and peace.”(137)
Subsequently at the time of the Union a controversy arose in regard to
these events. Mr. Pitt asserted that the adjustment of 1782 was not
considered by the British Ministers by whom it was effected as final in
its character; but that, on the contrary, they were fully convinced of the
necessity of adopting some further measures to strengthen the connection
between the two countries, and he produced the correspondence which had
passed in 1782—extracts from which have been given above—as a reply to the
lame attempt of General Fitzpatrick, who was still in Parliament, to deny
that any such negotiation had been desired by the members of Lord
Rockingham’s Ministry. General Fitzpatrick had declined to admit more than
that the Duke of Portland, during his residence in Ireland, might have
entertained a vague idea of some farther arrangement for consolidating the
connection with Ireland, but had soon given it up; and Grattan in the
Irish Parliament openly accused Lord Shelburne and the Duke of having
concealed their views from their colleagues, and said that, above all, Mr.
Fox knew nothing of the project contained in the despatch of June
6th.(138) The truth is, that the Rockingham Ministry was in June a house
divided against itself, owing to differences of opinion as to the peace
negotiation with France and the United States, and was almost in the
actual throes of dissolution. From a letter written by Fox in 1799 to
Fitzpatrick, it certainly appears that the so-called “Ogilvy” negotiation
never was communicated to him.(139) But the assertion of Mr. Pitt went far
beyond the Ogilvy negotiation—if negotiation it can be called. What Mr.
Pitt asserted was, not that the correspondence proved that in June, 1782,
the Ministers were actually intending to enter on any such negotiation,
but that the Prime Minister, the Lord-Lieutenant, and both Secretaries of
State, from the very commencement of the correspondence in April,
considered the arrangement insisted on by Grattan deficient, and lacking
in finality, and were only prevented by the stress of adverse
circumstances and the impracticable character of the Irish leaders, from
trying to negotiate an agreement, by which Ireland should acknowledge that
“the superintending power and supremacy were where Nature had placed
them”—viz., in the Government of Great Britain.
What, then, was the view which the British Ministers in 1782 took of the
relations which it was desirable to establish between Great Britain and
Ireland—the relations which, had events been more favourable, they would
have established? Evidently it was not a legislative union, though they
wished to retain the final judicial appeal in London. The object of the
Duke of Portland, as he explained in the secret despatch of June 6th, was
that an Act of Parliament should be passed by the Legislatures of the
respective kingdoms, by which “the superintending power and supremacy” of
Great Britain in all matters of State and general commerce would be
virtually and effectively acknowledged; by which also a share of the
expense in carrying on a defensive or offensive war, either in support of
our dominions or those of our allies, should be borne by Ireland in
proportion to the state of her abilities; and that she should adopt every
such regulation as might be judged necessary by Great Britain for the
better ordering and securing her trade and commerce with foreign nations,
or her own colonies and dependencies; consideration being duly had to the
circumstances of Great Britain. “This plan,” Lord Shelburne explained
during the debates of 1799, “had nothing to do with a legislative
union.”(140) “It related,” he said, “to what might be called the expense
of the system which was carried on under the two Parliaments, in Army,
Navy, commerce and finance, and in the great establishments of Church and
State; and it did not imply ‘bringing the two Parliaments
together.’ ”(141)
From these passages it appears that what the Whig statesmen aimed at in
1782 was to obtain, in the first place, a clear acknowledgment of the
Imperial supremacy, or, as they would have said in the language of the
time, of the power of Great Britain in “external” as distinct from
“internal” legislation; and, in the next place, a contribution from
Ireland to the expenses of external administration and policy: the Fleet,
the Army, and the diplomatic and commercial establishments. “I humbly
conceive,” said Burke, who was a member of the Rockingham Government, and
the trusted adviser of his official chief, “that the whole of the
superior, and what I should call Imperial politics, ought to have its
residence here [in London]; and that Ireland, locally, civilly and
commercially independent, ought politically to look up to Great Britain in
all matters of peace or war, and, in a word, with her to live and die. At
bottom, Ireland has no other choice—I mean no other national choice.”(142)
Very different were the views of the Irish Parliamentary leaders: not of
Grattan only, but of his rival, Flood, as can be gathered from the perusal
of the debates in the Irish Parliament, which culminated in the famous
struggle between Flood and Grattan on October 28th, 1782, when Flood,
having denounced Grattan as a “mendicant patriot,” and Grattan having
retorted by likening his rival “to a bird of prey with an evil aspect and
a sepulchral note,” the two leaders left the House in order to solve their
differences by a duel, and were only prevented meeting in deadly combat by
the interposition of the Speaker, who wisely issued his warrant to
apprehend them both.
The contention of Flood was that the mere repeal of the Act of George I.
was insufficient, and did not prevent its revival at any future period;
that it really left the matter where it stood, and that it was therefore
necessary to bring in a Bill for declaring the sole and exclusive right of
the Irish Parliament to make laws in all cases whatsoever, internal and
external, for the kingdom of Ireland. His desire was to trump Grattan’s
cards, and destroy his popularity, which in the following year he all but
succeeded in doing, when a decision of Lord Mansfield in the Court of
King’s Bench enabled him to raise a cry that the independence of the Irish
Courts of Judicature was in danger; and a further Act was forced on the
British Government renouncing any claim to legislate and confirming the
independence of the Irish Courts of Justice.(143) The contention of
Grattan was that the relations between Great Britain and Ireland were to
be ascertained from the record of the whole of the recent transactions,
which were transactions between two independent nations having a common
Sovereign; and this being so, he said it was no more possible for Great
Britain to reassert her legislative supremacy over Ireland than it would
be for her to do so over the American colonies, if the pending
negotiations resulted, as they evidently were about to do, in a
recognition of the independence of those colonies. Grattan, indeed, went
so far as to say that the relations between Great Britain and Ireland were
in future to be sought in the law of nations and not in the municipal
legislation of either country, which he said was no longer applicable. But
both the Irish leaders agreed that in one way or another the legislative,
financial, and judicial links between the two countries were to be
severed, however much they differed as to the legal formulas which were to
impress and carry out these ideas.(144)
The following propositions can, then, be based on the events of 1782:
(1) That the Irish leaders insisted on the freedom of Ireland from
interference by the British Parliament both in internal and
external affairs, or, as would now be said, both on Home and
Imperial questions.
(2) That the British Ministers were ready to concede the former,
and were not ready to yield the latter; but conceded both, owing
to the circumstances of the time, and considered the concession
final.
(3) That the British Ministers wished to obtain a contribution
from Ireland for Imperial purposes, and the maintenance of a final
appeal to an Imperial Court of Judicature.
(4) That the British Ministers do not appear to have proposed the
representation of Ireland in the British Legislature.
In substance the plan proposed by Mr. Gladstone in 1886 was the plan which
Grattan rejected in 1782. The objection to any such plan is the
probability that if Ireland were to be asked, and were even to consent for
the moment to make an appreciable contribution to the common expenses of
the Empire, without being given through her representatives any share in
the Parliamentary control of the funds so voted, and in the discussion of
Imperial affairs—if, in other words, she was made a tribute-paying colony,
instead of being treated as a member of a Federal system having an
undiminished area of taxation for National purposes—a fresh and formidable
grievance would arise in a few years, on the ground that taxation without
representation was an intolerable thing, and contrary to the first
principles of the Constitution. It was with these considerations present
to his mind that Mr. Butt, when leader of the Irish Home Rule Party, in
order to get over the difficulty, had proposed that a Federal arrangement
should be instituted between Great Britain and Ireland—_i.e._, an
arrangement under which Great Britain and Ireland should agree to vest
certain powers in a purely Irish Legislature and certain others in the
Imperial Parliament. The late Mr. Sharman Crawford, who like Mr. Butt was
an Ulsterman and a Protestant, held similar views at an earlier epoch, and
put them prominently forward during the period which elapsed between the
imprisonment of O’Connell and the collapse of the first Tenant-right
movement. With their opinion before us, it may be asked—why was no such
plan proposed in 1782 by the English statesmen of the day? The answer is
not far to seek.
The eighteenth century knew little or nothing about Federal Government.
The Constitution of the United States, the parent of all the numerous
later schemes of Federalism, was still in the limbo of the future; and it
would be as idle to blame the Government of 1782 for not entering on a
journey into the region of the unknown, especially at a moment of
unexampled public difficulty, as it would be to blame the statesmen of the
present day for not anticipating the political discoveries of the next
generation, whatever they may prove to be. It was owing no doubt to the
idea of Federal Government being practically unknown to the men of 1782,
and to the unwillingness of the English mind to strike out on a new and as
yet untrodden path in the art of Government, that in all the discussions
of that time there is little or no suggestion of instituting a Federal
link between Great Britain and Ireland. Some such suggestion was made
during the negotiations on the Scotch Union, but it was decisively
rejected by England, and only weakly urged by Scotland. The period was, in
fact, one when Europe was still under the influence of a set of ideas
which worked in an exactly opposite direction to the ideas of nationality
and Federalism. The period was indeed drawing to a close; but the whole
tendency of history had for two centuries previously been in the direction
of large agglomerations of territory and centralization of government,
quite irrespective of questions of nationality and race, and that tendency
was still potent in 1782. The idea that the advantages of a national
Government, extending over a large territory, might be combined with those
of a decentralization of authority by a division of jurisdictions, was not
one which the statesmen of the day in Europe had begun seriously to
consider. Separation they understood, or an incorporate union: the
possibility of an intermediate arrangement they ignored.
And yet an experiment in Federal Government is not to be approached with a
light heart, and perhaps one thing only can be said about it with any
certainty, that whatever success has attended it, wherever in fact it has
worked smoothly, it has been when the powers reserved to the Federal or
National Government have been those only which were strictly necessary,
and in regard to which differences of opinion would presumably not arise
amongst the States forming the Union.
It is the more important to bear these considerations in mind, because of
the existence of a widely spread but erroneous idea in regard to the
United States Constitution, to the effect that the Federal Government has
very numerous and extensive powers in internal affairs assured to it by
the jurisdiction of the Federal Court. This Court, it is said, can
intervene, under the terms of the Constitution, to arrest the action of
the State Governments, and therefore, once given a Federal Court, the
success of the Federal experiment is assured.
But it is necessary to realize that it is only because the powers of the
Federal Government are very strictly limited, and that the Federal Court
is not overweighted with the assertion of rights, the exercise of which
the public opinion of the States might not support, that its jurisdiction,
when asserted, is as a rule respected, while over the State Legislatures
as such it has no power at all, by way of injunction or prohibition. Nor
have cases been wanting from which the precarious character of its powers,
and its occasional lack of any sufficient sanction to enforce its decrees,
may be gathered, when it has happened that those decrees have not been in
accord with the prevailing opinion of the State within which execution has
had to be carried out. In 1812, when a state of war existed with Great
Britain, the States of Massachusetts and Connecticut refused obedience to
the orders of the Federal Government for the concentration of the militias
of all the Northern States on the frontier, giving as their reason that
the Constitution only empowered the Federal Government to call out the
militia in the case of “insurrection or actual invasion,” and that neither
of these two eventualities had arisen. These doctrines met with general
approval in the two States in question, and were endorsed by their
Governors, their Legislatures, and their tribunals, nor were the Federal
Courts able to enforce obedience to the commands of the Government at
Washington. By a strict limitation of the powers of the National
Government to what is absolutely necessary in order to secure the
existence of the United States as a nation, the framers of the
Constitution of 1787 did as much as it was possible to do, in order to
render their work permanent; but they were not able, as De Tocqueville
pointed out, even before the war of Secession had come to confirm the
foresight of his views, altogether to avoid the dangers which are the
natural inheritance of all Federal forms of Government.
The possibility, then, of establishing a Federal connection of any kind
between Great Britain and Ireland—that is to say, an arrangement under
which certain powers would be vested in an Irish Legislature and
Executive, and certain others in a Parliament and Executive common to both
countries—depends entirely on whether it is believed not only that such a
division of power can be successfully made upon paper—a feat which any
constitution-monger can accomplish—but also that public opinion in Ireland
will not interpose hopeless obstacles to the assertion of the reserved
rights and powers of the Imperial Legislature and Executive.
That under a Federal arrangement there would be any real possibility of
frequent interference from London in Irish internal affairs is not
probable, even were such interference legal. The attempt could only end in
failure. Much has been said about the supremacy of the British or Imperial
Parliament; and some of those who have used this expression apparently
mean that every Act of the Irish Legislature and Executive is in some way
or another to be reviewed by the British Parliament and Executive; or that
in defiance of the plain teaching of history there is to be no responsible
Irish Executive. The certain result of this would be to destroy the sense
of responsibility in the Irish Legislature, to create endless differences
of opinion between the two countries, and to make Great Britain the
“whipping-boy” of Ireland, whenever Ireland had done anything foolish, and
the British Parliament had not stepped in to prevent it. Reasonable men
will continue to differ about the grant of Home Rule; but whatever is
granted to Ireland in the way of legislative or executive right must be
given fully and frankly, without looking backward. We must allow ourselves
in this matter to listen to the voice of the statesmen of 1782. On the
other hand, whatever is reserved must be clearly reserved, with ample
guarantees for the arm of the Imperial Executive being long enough and
strong enough to put down resistance. But that the power of the Imperial
Parliament and Executive could, under any circumstances, be exerted
frequently and in many matters, is a dangerous and impotent delusion. That
power can only be maintained by carefully selecting and limiting the
objects to which it is to relate; and by admitting Irish representatives
to their full share—neither more nor less—of the control of Imperial
questions in the Imperial Parliament, and securing adequate machinery for
the execution of the decrees of the Imperial Government in Ireland when
necessary. The arguments against any petty and irritating interference
with the internal affairs of Ireland would be just as strong now as those
which Lord Chatham used in 1774 against the proposed interference of the
British House of Commons with the Absentee tax which the Irish Parliament
was in that year supposed to be about to pass:
“The justice or policy of the tax,” he said, “is not the question;
and on these two, endless arguments may be maintained _pro_ and
_con_. The simple question is, have the Commons of Ireland
exceeded the powers lodged with them by the essential constitution
of Parliament? I answer, they have not, and the interference of
the British Parliament would in this case be unjust, and the
measure destructive of all fair correspondence between England and
Ireland for ever.”(145)
In what way would the British Parliament be more able to interfere in such
a case than it was in 1774?
That Great Britain, if she chooses, is strong enough to govern Ireland for
a prolonged period against the wishes of the majority of the people of
Ireland, is indeed true; and under a strong and consistent Administration,
strict and even justice might no doubt produce quiet and a considerable
degree of material prosperity, without the constitutional question being
touched. But the existence of outward calm and material prosperity has
always been a favourite plea with the opponents of political reform. And
it is the most subtle and dangerous of all possible pleas, so soothing in
character, and making apparently so winning an appeal to plain common
sense and to self-evident facts. “Now, after all this,” says Lord
Clarendon, when describing the period in which England was administered,
judged, and legislated for by the Privy Council, “I must be so just as to
say that during the whole time that these measures were exercised, and
these new and extraordinary ways were run, this kingdom enjoyed the
greatest calm and the fullest measure of felicity that any people in any
age for so long a time together (for the above-mentioned eleven or twelve
years) have been blessed with, to the wonder and envy of all the other
parts of Christendom.” But a few years after the happy period described in
such glowing terms by the great historian the Civil War broke out.
If the necessity for a political change exists, sooner or later it forces
its way to the front, notwithstanding outward calm. It has been so before,
and there is no reason to doubt that it will be so again, because the
claim made by Ireland depends on permanent facts which statesmen cannot
alter notwithstanding occasional periods of material prosperity and
outward calm. As the ultimate solution of existing difficulties it is
indicated by the geography and by the history of the island; and these are
the two conditions of every political problem, which it is difficult to
surmount or evade. Time may indeed slowly soften the asperities produced
by past errors and the crimes of bygone generations; but the geographical
conditions of a problem remain fixed and unalterable, and in the long run
will be found to be the permanent factor which governs the situation. Not
by empty formulas, such as “governing Ireland according to Irish ideas,”
or, “extending all the liberties enjoyed by the subjects of Great Britain
to those of the sister island,” shall we advance one yard on our way, or
indeed do aught but make it clear to friend and foe alike, that we are
cultivating contradictory ideas without even being apparently aware that
we are doing so. What we have to do is to resolve to take our stand on the
few firm bits of fact which emerge like stepping-stones traversing a
quaking bog; and then we may get over, and some day perhaps climb the
distant hills which are on the other side. Otherwise we shall go on
“filling our belly with the east wind” to the end of time; we shall fish
all night and take nothing. These few firm bits of fact are those provided
by history and geography. Open the map and look at the situation of Great
Britain and of Ireland relatively to each other; observe how they lie
near, yet apart; how they are separated by intervening seas, but seas so
narrow as to be a bond quite as much as a bar; how they are inhabited by
races speaking the same language but professing different religions; and
bear in mind that these are the features of the picture which cannot be
altered. This being so, let us next suppose that some stranger ignorant of
all the trivial details of the Irish question, on his arrival amongst us,
were asked to state what, in his opinion, with the above conditions placed
before him, the institutions of two such islands relatively to one another
were likely to be, judging from his experience of other countries. Would
he not probably reply that the wise statesmen of Great Britain, of whose
fame he had heard in foreign lands, had doubtless long ago come to the
conclusion that their separation for some purposes, and their union for
others, was stamped on the map as the certain and inevitable condition of
any satisfactory settlement of their mutual relations, and that, alike to
their complete separation and to their complete union, there was one and
the same answer: _Opposuit natura_.
But, further, let us suppose him in his turn to inquire what the
experience of the past had been in this particular case; and whether the
two countries at the present time were entirely united or entirely
separate, or were linked by some intermediate arrangement adapted to their
relative needs and springing out of them; and suppose that the answer was,
as it would have to be, that after several centuries of aggravated strife,
they had first tried entire legislative separation, and had then abandoned
it for an absolute incorporate union. Would he in that case be astonished
if he was informed that history had vindicated geography, and that under
neither of these two relations had peace, goodwill, and amity, been the
distinguishing characteristics of the relations of Great Britain and
Ireland?
To such a traveller it might perhaps be explained as an unexampled
portent, that although constitutional liberty, limited only by the right
of every Government to suppress crime and repress disorder, had been
extended by the larger to the smaller country; that although an equal
representation, a wide suffrage and vote by ballot had also been given,
and no alien Church any longer vexed the conscientious scruples of the
majority, and the land system of the country had also been reformed, yet
so unreasonable were the minds of the Irish people that they refused to be
contented, and were now asking for a modification of the fundamental
articles of the existing incorporate union, and that a constant agitation
in consequence prevailed.
Might he not reply that he had heard it said by them of old time, that it
was a mistake to be too much alarmed by the existence of political
agitation; that absolute quiet is not a necessary sign of political health
even in a constitutional State; that what is called union within a
political system may be a very equivocal expression; that the true union
is a harmony, the result of which is that all parties, however opposed in
appearance, co-operate towards the common good; that union may even exist
in a State where the eye at first seems only to recognize a busy
confusion; and that the contentment of the population with the
institutions under which they live is the only solid guarantee of their
permanence.(146) Englishmen, he might add, in conclusion, had themselves
been occupied for two centuries in proclaiming these and similar liberal
sentiments from one end of Europe to the other, and the time had now
perhaps arrived for applying them nearer home.
XI.—Grattan’s Parliament. BY G. P. GOOCH
Grattan’s Parliament was born of the American War of Independence and was
slain by the French Revolution. Brief as was its life, it forms the most
brilliant and interesting episode in Irish history. Never has the ancient
and unconquerable spirit of nationality spoken in more eloquent accents
than during the years when Grattan, loyal alike to the British connection
and to Irish ideals, had won for his countrymen a measure of
self-government. Representing only the Protestant minority, clogged with
corruption, and containing its full share of selfish and reactionary
influences, it was none the less the focus and the mouthpiece of national
feeling. Fairly to judge the Grattan Parliament we must not only recall
its limitations and errors but contrast its throbbing vitality with the
servitude that preceded its foundation and the creeping paralysis which
followed its dissolution.
A long sleep had succeeded the final expulsion of James II. from Ireland.
The penal code was perfected into a system accurately described by Burke
as most perfectly fitted to degrade and brutalise the human spirit.
Catholic Ireland was voiceless and wholly lacking in political
consciousness; and the silence of Protestants was only broken by a rare
protest from Molyneux, Swift, or Lucas. If any doubt remained under
Poynings’ Laws as to the complete dependence on Great Britain, it was set
at rest by the Declaratory Act passed at Westminster in 1719. The Viceroys
before Townshend only spent a few weeks in Dublin every second year for
the biennial sessions of Parliament. The Lords Justices governed the
country for its English masters by influence and corruption, and the Irish
pension list provided grants too degrading to be charged on English
revenues. A new era opened when Flood took his seat in 1759 and organised
an Opposition, the programme of which included the limitation of
parliaments, the revision of the pension list, the creation of a militia
and the independence of the Irish Legislature. The first object was
secured in 1768 by the Octennial Act; but at the height of his power and
popularity he was captured by the Government, which naturally desired to
disarm its most formidable foe. After an interval of independent support,
the great orator accepted a salaried office and a seat in the Privy
Council in 1775. In the same year Grattan entered Parliament at the age of
twenty-nine, and quickly asserted his title to the leadership of the
national party which Flood, in an evil moment for himself and his country,
had abdicated.
The new leader was favoured by circumstances. While Flood clamoured for
the suppression of the American revolt, the Presbyterians of the north
loudly applauded the colonists, many thousands of whom had recently
emigrated from Ulster. The community of interest was fully realised on
both sides of the Atlantic; but Ireland asked for political and commercial
autonomy, not for independence. With the demand there rapidly emerged the
instrument of its realisation. Ireland was almost without troops when
France declared war in 1778. When it became clear that the Government were
unable to defend the island, the Protestant gentry came forward, and in a
few weeks a disciplined and enthusiastic force of 40,000 men was under
arms. Though organised for defence, the Volunteers, inspired by Charlemont
and Grattan, determined to employ their strength in exacting concessions
from the British Government. To use the words of Fox, the American war was
the Irish harvest. The larger part of the damage inflicted on Irish
commerce and manufactures by the legislation of the prominent partner was
irreparable; but something might be saved from the wreck. The menacing
aspect of the Volunteers and the panic-stricken despatches from Dublin
Castle convinced the North Ministry that there was no alternative but to
yield. Foreign and colonial trade was thrown open, the embargo on exports
was removed, and Ireland was at last free to make use of her resources.
The easy overthrow of commercial restrictions encouraged Grattan to a
bolder flight. In 1780 he moved his historic resolution “That no person on
earth, save the King, Lords, and Commons of Ireland, has a right to make
laws for Ireland.” The motion was withdrawn after an impressive debate;
but when the Volunteer Convention, which met shortly after, unanimously
adopted the demand for self-government, the British Ministry surrendered.
In April, 1782, the declaration of legislative independence was brought
forward by Grattan in one of his noblest orations. “I found Ireland on her
knees. She is now a nation. In that character I hail her, and, bowing in
her august presence, I say, _Esto perpetua_!” A new and happier era seemed
at last to be opening in the fortunes of Ireland and in her relations with
Great Britain. “I am convinced,” wrote Burke to Charlemont in words of
gold, “that no reluctant tie can be a strong one, and that a natural,
cheerful alliance will be a far more secure link of connection than any
principle of subordination borne with grudging and discontent.” Grattan
was fully satisfied with the repeal of the Declaratory Act of 1719; but
when the demand arose for an express renunciation of the authority of the
British Parliament, the Coalition Ministry of Fox and North passed an Act
unconditionally recognising the right of the Irish people to be bound only
by laws enacted by the King and the Irish Parliament.
The Grattan Parliament appeared to enter on its career with a fair capital
of good will. Irishmen began to feel that they had a country; and though
autonomy had been wrested in an hour of weakness by a show of force, there
was no trace of resentment in the debates at St. Stephen’s which
accompanied the renunciation of power. The new constitution seemed to
enable Ireland to work out her own salvation without let or hindrance. But
the powers which appeared so ample were in reality strictly limited. In
the first place, while the Irish Legislature became in theory the peer of
the British Legislature, the Irish Executive—the Lord-Lieutenant and the
Chief Secretary—continued to be appointed by and responsible to the
British Ministry. Secondly, Irish Bills did not become law till they were
sanctioned by the King and sealed by the Great Seal on the advice of
British Ministers. Finally, a majority of the Irish Parliament rested not
on the free choice of the people or even of the Protestant population, but
on the owners of nomination boroughs, most of whom were bound to the
Executive by the possession or prospect of titles, pensions or sinecures.
Government by patronage survived the Renunciation Act, and reduced the
authority of the Grattan Parliament to a shadow. The power of withholding
supplies was an empty privilege; for the greater part of the income of the
country came from the hereditary revenue, which was independent of
Parliament.
The difficulties inherent in the novel situation were speedily revealed.
It was Grattan’s fervent wish that the Volunteers, their emancipating task
accomplished, should dissolve and leave the parliament to carry out its
work. Flood, on the other hand, who had rejoined the ranks of the
Opposition, had less confidence in the sincerity of the British
Government, and desired to retain the weapon that had proved so effective,
at any rate till a Reform Bill had placed the Legislature in a position to
withstand the insidious assaults of the Executive. Parliamentary reform
was the natural corollary of the Renunciation Act. Flood laid his
proposals before the Volunteer Convention, and, armed with its approval,
carried them to College Green. His object was to emancipate parliament
from the control of placemen and pensioners and to break the power of the
borough-owners by the extension of the franchise. The fault of the measure
was that, contrary to the wishes of Grattan, it perpetuated the exclusion
of Catholics from political rights. The Executive opposed the Bill on the
ground that it emanated from Prætorian bands, though the Volunteers
themselves were held in check by British troops. The whole open and secret
influence of the Government was exerted, and the proposals were defeated.
Reform was the condition of genuine autonomy. Without it the Legislature
was clay in the hands of the potter. Though a share of the blame falls to
the members who saw their influence endangered, the main responsibility
for its defeat lies with the agents of the British Government. Having
granted legislative equality, England took care to secure that the Grattan
Parliament should possess the shadow but not the substance of power.
The next disappointment arose in the sphere not of politics but of
commerce. It was the wish both of Pitt, the disciple of Adam Smith, and of
Grattan that commercial intercourse between the two countries should be
facilitated. But the offer to open the English market was accompanied by a
proposal that Ireland should make a definite contribution to Imperial
expenditure. She already maintained an army of 15,000 men, a fifth of whom
were at the disposal of the British Government while the rest could be
employed outside Ireland with the consent of the Dublin Parliament. But
Pitt, convinced that free trade with England would stimulate Irish
prosperity, felt justified in demanding a share of the increased revenue
for the Imperial navy. Grattan disliked the suggestion of anything which
could be represented as a tribute, and would have preferred voluntary
grants; but he waived his objection, and Pitt’s scheme, in the form of
resolutions, was approved by the Irish Parliament. At this stage the
jealousy of the British commercial classes flamed out, and the scheme, on
emerging from the debates at Westminster, was found to have been radically
altered. As in its final form it curtailed the independence of the Irish
Parliament, Grattan strongly opposed it. A scheme which failed to satisfy
England and had lost its friends in Ireland was not worth further effort.
Pitt had done his best, but had been overborne by the commercial
interests. When the Irish Parliament later declared its readiness to
discuss a commercial treaty, it met with no response.
Pitt was bitterly disappointed by his failure, and lost a good deal of his
interest in Ireland. He adopted the view of successive Lords-Lieutenant
that genuine parliamentary reform was incompatible with the supremacy of
the Executive. “There can, I think, be little doubt,” pronounces Lecky,
“that the prospect of a legislative union was already in his mind, and it
was probably the real key to much of his subsequent policy.” Dr. Holland
Rose quotes a significant letter of Pitt to the Viceroy, Lord Westmorland,
in the autumn of 1792. “The idea of the present fermentation gradually
bringing both parties to think of an Union with this country has long been
in my mind. I hardly dare flatter myself with the hope of its taking
place; but I believe it, though itself not easy to be accomplished, to be
the only solution for other and greater difficulties.” Thus the Grattan
Parliament never had a fair chance. The dual system could only be worked
by mutual good will, and if one of the partners withheld her aid, the
experiment was doomed. Pitt was not yet openly hostile; but he allowed his
agents in Dublin to shape their own course. He recognised that the root of
Irish crime was to be found in the tithe system, and suggested in 1786
that tithes should be commuted; yet when Grattan brought forward proposals
with this object he allowed the Executive to defeat them.
Pitt’s growing dislike of the system of 1782 was reinforced by the action
of the Irish Parliament in the Regency crisis. When the King became insane
in 1788, the Whigs contended that their patron, the Prince of Wales,
should automatically exercise the power of the Crown, while Pitt retorted
that it was for Parliament to appoint him Regent, and to define his
powers. The Irish Parliament sided with the Whigs, Grattan and the
Nationalists on the constitutional ground that Pitt’s proposed safeguards
were unnecessary in Ireland, the camp-followers in view of the probable
change in the source of patronage. The controversy terminated with the
King’s restoration to health; but the Prime Minister never forgot nor
forgave the encouragement rendered to his enemies at the crisis of his
fate.
Pitt had attempted nothing for Ireland since the failure of his commercial
proposals; but the ferment created by the seductive doctrines of the
French Revolution determined him to conciliate the Catholics, to whom he
had always been friendly and whom he agreed with Burke in regarding as
naturally conservative. On being informed of his wishes in 1791 the Irish
Government did its utmost to dissuade him, and succeeded in whittling down
the concessions till they were scarcely worth granting. Though Flood and
Charlemont were immovably opposed to the extension of any kind of
political rights to Catholics, and though Grattan always explicitly
reserved Protestant ascendency, there was a large body of opinion prepared
for a fairly liberal policy; and the new organisation of United Irishmen,
founded in 1791 by Wolfe Tone, rested on the recognition of a common
effective citizenship. In view of these circumstances, Pitt for the first
and last time determined to overrule his agents. The Relief Bill of 1793
enfranchised Catholics on the same terms as Protestants, admitted them to
juries, to the magistracy, and to commissions in the Army and Navy,
allowed them to receive degrees in Dublin University and to carry arms.
This generous measure, which the Executive hated but dared not oppose,
passed without difficulty. Though the main merit belongs to Pitt, the
acceptance of such far-reaching concessions by a Protestant body is a
proof that, left to itself, it was not unwilling to concede substantial
instalments of justice to the Catholic majority. Recent attempts to
minimise the importance of the Act, on the ground that the franchise
without eligibility to Parliament was worthless, misjudge the situation.
The measure was hailed by Catholic opinion as a decisive breach with the
intolerant traditions of a century; and its easy passage to the
Statute-book suggests how different might have been the record and the
fate of the Grattan Parliament had Pitt throughout encouraged its more
generous intuitions and compelled his agents to support the policy which
he knew to be right.
The union of the Portland Whigs with Pitt in 1794 seemed to bring further
reforms within sight. Grattan travelled to London to discuss the
situation, and met Fitzwilliam, who was designed for the Viceroyalty.
Fitzwilliam was known to favour Parliamentary Reform and Catholic
Emancipation, and the liveliest hopes and fears were entertained of a
decisive change of system. On learning from Dublin that there was already
open talk of the dismissal of the Chancellor and other members of the
Ascendency party, Pitt was deeply annoyed. It would be best, he declared,
that Fitzwilliam should not go to Ireland; and, in any case, he must
understand that no idea of a new system could be entertained, and that no
supporters of the Government should be displaced. Shortly before his
departure Pitt and Grenville met Portland, Spencer, Windham and
Fitzwilliam to determine the policy to be pursued. No notes were made of
the conversation, and the Viceroy left England on January 4th, 1795,
without written instructions, though well aware of Pitt’s general views
and wishes. Three days after landing he dismissed Beresford, the head of
the Revenue and an inveterate enemy of Catholic claims, who possessed
enormous borough influence and was often described as the King of Ireland.
Fitzwilliam afterwards stated that he told Pitt the step might be
necessary and that he had acquiesced by his silence. Pitt rejoined that he
had no recollection of the incident. In any case a man of such importance
should not have been removed without communicating with the Home
Government. A few days later the Viceroy informed Portland, the Home
Secretary, of the unanimity of Catholics and the readiness of Protestants
for a measure of emancipation. Despite pressing and repeated
communications, Portland delayed his reply and finally urged him not to
commit himself. Next day Pitt wrote censuring the removal of Beresford,
but without mentioning the Catholic question. Fitzwilliam replied that
Pitt must choose between him and Beresford, and informed Portland that he
would not risk a rebellion by deferring the measure. A week later Portland
wrote in peremptory terms that Grattan’s Bill, which enjoyed the Viceroy’s
support, must go no further, and on the following day Fitzwilliam was
recalled.
The Viceroyalty had lasted six weeks; but Fitzwilliam is remembered while
the phantom rulers who preceded and followed him are forgotten. The
episode has a narrower and a wider aspect. That his dismissals were in
contravention of the understanding on which his appointment rested was
admitted by his personal and political friends in the Cabinet. But though
the Viceroy was guilty of disloyalty to his instructions, a strong case
can be made out for his policy. He knew that the prevailing system was
thoroughly vicious, and he realised that if a policy of conciliation and
reform was to be undertaken it could not be effectively carried out by men
who were opposed to it. As Pitt had explicitly vetoed a change of system,
it would have been wiser to have refused the post. The aims of the two men
were fundamentally different. Though in favour of admitting Catholics to
Parliament, Pitt thought it safer to defer emancipation till a Union was
accomplished, and therefore determined to preserve Government patronage
and control for future emergencies. Fitzwilliam desired to govern Ireland
in accordance with Irish ideas, in the spirit of the Constitution of 1782
and with the help of men who were loyal to it. In his recent work, “The
End of the Irish Parliament,” Mr. Fisher, who finds nothing to admire in
the Grattan Parliament and little in its founder, suggests that the
Fitzwilliam crisis was a storm in a tea-cup, and that the main issue
involved was the substitution of the Ponsonbys for the Beresfords as the
dispensers of patronage. But Irish tradition is in this case a safe guide
as to the character and importance of the incident. Ireland instinctively
felt, as India was to feel nearly a century later in regard to Ripon, that
Fitzwilliam was a friend. The news of his recall was received with delight
in Ascendency circles, and elsewhere with consternation. It was taken as a
definite rejection of the Catholic claims, and increasing numbers
despaired of achieving any real reform by peaceful means. It revealed in a
flash that the autonomy of Ireland was a sham. From this point the
rebellion of 1798 and the Union were in sight.
The new Viceroy, Camden, was an anæmic personality, and with the
establishment of Maynooth the tale of reforms came to an end. The
uncrowned king of Ireland and the brain of Dublin Castle was Fitzgibbon,
who as Attorney-General stood by Pitt in the Regency crisis and had been
rewarded by the Chancellorship and the earldom of Clare. In his
discriminating study of Clare, the late Litton Falkiner has advanced all
that can be said for the ablest and most ruthless of the opponents of the
Grattan Parliament, pointing out that he remained on friendly terms with
the Opposition till 1789. Wholly destitute of national feeling, Clare
openly scoffed at the Catholic Relief Act of 1793, which the Government
was compelled to support. It was from him that emanated in 1795 the fatal
suggestion that the King could not assent to the repeal of laws affecting
Irish Catholics without violating his Coronation oath. “In forcefulness
and narrowness, in bravery and bigotry,” writes Dr. Holland Rose with
entire truth, “he was a fit spokesman of the British garrison, which was
resolved to hold every outwork of the citadel.” With Pitt’s glance fixed
on Union and Clare in virtual command of the machine, there was no place
for Grattan in his own Parliament. He disapproved the revolutionary
republicanism of the United Irishmen and the ascendency principles of
Dublin Castle, and refused to encourage the one by attacking the other.
After a final attempt in 1797 to procure the admission of Catholics to
Parliament and to introduce household franchise, he retired into private
life, his Letter to the Citizens of Dublin firing a parting shot at the
Government.
The rebellion of 1798 and the French invasions form no integral part of
the history of the Grattan Parliament; but they none the less sealed its
doom. In his speech on the Union, Clare frankly confessed that he had been
working for the Union since 1793, and he began to urge the policy on Pitt
in the same year. Pitt, who had long regarded a Union followed by Catholic
Emancipation as the ultimate solution of the Irish problem, was now
convinced that further delay was dangerous. In the early part of the
eighteenth century the idea of Union was by no means unpopular; but the
American war had shaken Ireland from her slumbers, and the debates on the
Commercial Propositions and the Regency showed that the Grattan Parliament
was jealous of the slightest infringement of the settlement of 1782. But
the matter was not to be settled by argument, and no dissolution was
allowed. The high-minded Cornwallis, who had succeeded Camden, groaned
over his hateful task. “My occupation is most unpleasant, negotiating and
jobbing with the most corrupt people under heaven. How I long to kick
those whom my public duty obliges me to court! I despise and hate myself
every hour for engaging in such dirty work, and am supported only by the
reflection that without an Union the British Empire must be dissolved.”
There was no national opposition to the measure. The Catholics were won by
the promises of Emancipation, though they were not informed that the King
had already declared his objections to it insuperable. The main fight was
waged by the Ulster Protestants from whom had sprung the Volunteers. When
the Irish Parliament met for the last time in January, 1800, a majority
had been secured by Cornwallis, Castlereagh, and Clare. Grattan had sought
re-election and returned to utter an eloquent protest against the
destruction of the body that for ever bears his name. He predicted that
the Union would be one of Parliaments, not of peoples. To destroy the
Parliament was to destroy an organ of national intelligence, a source and
symbol of national life. “The thing it is proposed to buy is what cannot
be sold—liberty.” He reiterated his conviction that nature was on the side
of autonomy. “Ireland hears the ocean protesting against separation, but
she hears the sea likewise protesting against Union.” The warnings of the
most spotless of Irish patriots were of no avail. The Grattan Parliament
was swallowed up. In his touching words, he watched by its cradle and
followed its hearse.
There is a good deal to be said for the assertion that after the rebellion
of 1798 the continuance of the experiment of 1782 was a source of danger
to Great Britain in her life and death struggle with France. But there is
no ground for the contention that the constitution itself was
intrinsically unworkable. Its congenital weakness was that the Executive
was responsible not to the Irish but to the British Parliament. Friction
between the Legislature and the Executive was thus inevitable; but with
tact and goodwill even this anomaly need not have stopped the working of
the machine. What would have happened had the British Ministry unselfishly
co-operated with Grattan and the moderate Nationalists to secure urgent
political and economic reforms we can but conjecture. But we know only too
well the effect of withholding such co-operation. There is scarcely a
trace in the voluminous correspondence of the Viceroys, except perhaps the
Duke of Rutland, of any consideration for the good of the country over
which they ruled. Their mandate was to watch the interest of England. When
Cornwallis proposed in 1798 that Castlereagh should become Chief
Secretary, the King objected that the post ought to be held by a Briton;
but his scruples were allayed by the Viceroy’s assurance that his
candidate was “so very unlike an Irishman” that the appointment would be
perfectly safe. There is no ground whatever for the notion that the
Parliament was a wholly corrupt and reactionary body. That Grattan was not
prepared to endanger the Protestant Ascendency is true but irrelevant; for
he was ready to champion such measures of Parliamentary Reform and
Catholic Emancipation as would have transformed Parliament into a
tolerable mirror of Irish opinion. There can be little doubt that if the
Executive had lent its aid, such measures could have been carried as
easily as the Relief Bill of 1793.
In his thoughtful and eloquent volume, “The Framework of Home Rule,” Mr.
Erskine Childers gently chides Home Rulers for wasting vain regrets on the
Grattan Parliament, in which he loses interest after the rejection of
Flood’s Reform Bill of 1783. No instructed Home Ruler would dream of
setting that celebrated body on a pedestal. We know too well that, in the
words of Litton Falkiner, it was a parliament of landlords, of placemen,
and of Protestants. It was fundamentally conservative and aristocratic. It
was ever ready to pass Coercion Acts. It was no more a council of
disinterested patriots than the sister assembly at Westminster. On the
other hand a large and influential section of its members was eager to
purge it of its baser elements. “With every inducement to religious
bigotry, it carried the policy of toleration in many respects further than
the Parliament of England. With many inducements to disloyalty, it was
steadily faithful to the connection. Nor should it be forgotten that it
was on the whole a vigilant and intelligent guardian of the material
interests of the country.”(147) Though cabin’d, cribbed, confined, it was
at least in some degree an organ of public opinion and a symbol of
nationality, as the Third Duma, tame though it be, has stood for the
principle of representation in autocratic Russia. The duty of British
statesmen was to mend it, not to end it. If Grattan’s Parliament was a
failure, the Union was a greater failure. For the one experiment
recognised, however imperfectly, the separateness of Ireland, while the
other started from its denial. To use the jargon of the Ascendency party,
Ireland was “loyal” before the Union and “disloyal” after it. The clear
moral of those chequered years for latter-day statesmen is that a
responsible Executive is of more importance than a co-equal legislature,
and that having granted autonomy the British Parliament and British
Ministers must strive to render it a success. Pitt’s Union was not
partnership but subjection. The only true Union between countries so
different is to be found in loyal comradeship. Against such a relationship
history cannot bear witness, for it has never been tried.
XII.—“The Government Of Ireland In The Nineteenth Century”. BY R. BARRY
O’BRIEN
I
When you speak to Englishmen about English rule in Ireland they say: “Oh!
you Irish are always looking back. You always want to talk about the past.
You read nothing but ancient history. You never think of all we have done
for you in recent years. Come to modern times; forget the past.”
Well, the point is, what are modern times? What date are we to fix for the
beginning of good government in Ireland—1800? Scarcely. I do not think
that the rankest Tory that ever lived will now attempt to defend English
rule in Ireland between 1800 and 1828. In fact, this is what they call
ancient history. They will say to you: “Well, of course, we know that the
Catholics ought to have been emancipated at the Union, and a great many
other things ought to have been done! But what is the good of talking
about that now?” The good is, that the lessons of the past are the
safeguards of the future. Hence they must be learned.
“Progress,” says Lamennais, “is in a straight line. To find it we must go
back to the past.” Let us take the line of “progress” in Ireland
throughout the nineteenth century. In 1800 the Irish Parliament was
destroyed; the English Parliament took Ireland in hand. A new era was to
dawn upon the country. The Catholics were to be emancipated, measures of
social and political amelioration were to be passed, peace and prosperity
were to reign in the land. Such was the promise of the Union. How was it
fulfilled? The Catholics were not emancipated; measures of social
amelioration were not carried; but the Statute book was filled with
Coercion Acts passed to crush the efforts of the people in their struggle
for justice and freedom.
A chronology of Ireland lies before me. Such entries as these meet the eye
at every turn.
1800-1801. Insurrection Act, Habeas Corpus Suspension Act, and Martial
Law.
1803. Insurrection Act.
1804. Habeas Corpus Suspension Act.
1807-1810. Insurrection Act, Martial Law and Habeas Corpus Suspension Act.
1814. Habeas Corpus Suspension Act.
1814-1818. Insurrection Act.
1822-1824. Habeas Corpus Suspension Act, Insurrection Act.
1825-1828. Act for Suppression of Catholic Association.
Nothing can give a better idea of the character of English Government in
Ireland during the first quarter of the century than the mere recital of
these Acts. And then when we look at the Statute book for the measures
passed to ameliorate the condition of the people, to reconcile them to the
loss of their Parliament, and to give them confidence in the English
Legislature, what do we find? At the General Election of 1910, a pamphlet
was published in the county——. It bore the title—“What Mr. M—— has done
for the people of ——” You then turned over the leaves and found every page
a blank. So is it with the English Statute book, during the years
1800-1829, as far as measures of justice for Ireland are concerned. Out of
a total population of 5,000,000 people at the time of the Union, 4,000,000
were Catholics. These Catholics, representing the old Irish race, were
treated as outlanders in their own country. Ireland was governed through
the Protestant minority who, (themselves the descendants of English
settlers), were, under England, the masters of the land. In 1798,
Cornwallis had written to Pitt:
“It has always appeared to me a desperate measure for the British
Government to make an irrevocable alliance with a small party in
Ireland (which party has derived all its consequence from, and is,
in fact, entirely dependent upon the British Government), and to
wage eternal war against the Papists.”
The “desperate measure” which Cornwallis deplored, the British Government
adopted. In 1802, Lord Redesdale, the Irish Lord Chancellor of the day,
wrote: “The Catholics must have no more political power”; and he added: “I
have said that this country must be kept for some time as a garrison
country—I meant a Protestant garrison.” The policy enunciated by Lord
Redesdale was the policy enforced by the English statesmen of the Union. I
think it is Lord Acton who says somewhere that nothing stimulates the
sentiment of nationality so much as the presence of a foreign ruler. The
Irish people saw the hand of the foreign ruler everywhere, and national
hatred was naturally intensified and perpetuated.
Besides the question of Catholic emancipation—the question of political
freedom—there were many other questions calling for the immediate
attention of Parliament. There was the church question, the tithe
question, the question of the education of the people, and the eternal
land question. The very existence of these questions was ignored by
English statesmen. Land was the staple industry of Ireland; yet it was
worked under conditions which were fatal to the peace and prosperity of
the country. What were the conditions? The landlord let the land—perhaps a
strip of bog, barren, wild, dreary. The tenant reclaimed the bog; built,
fenced, drained, did all that had to be done. When the tenant had done
these things, had made the land tenantable, the rent was raised. He could
not pay the increased rental—he had spent himself on the land; he needed
time to recoup himself for his outlay and labour. He got no time: when he
failed to pay, he was evicted—flung on the roadside, to starve, to die. He
took refuge in an Agrarian Secret Society, told the story of his wrong,
and prayed for vengeance on the man whom he called a tyrant, and an
oppressor. Too often his prayer was heard, and vengeance was wreaked on
the landlord, or agent, and sometimes on both.
“The landlord,” says Mr. Froude, “may become a direct oppressor.
He may care nothing for the people, and have no object but to
squeeze the most that he can out of them fairly or unfairly. The
Russian Government has been called despotism, tempered by
assassination. In Ireland landlordism was tempered by
assassination.... Every circumstance combined in that country to
exasperate the relations between landlord and tenant. The
landlords were, for the most part, aliens in blood and in
religion. They represented conquest and confiscation, and they had
gone on from generation to generation with an indifference for the
welfare of the people which would not have been tolerated in
England or Scotland.”
English statesmen did not understand—did not try to understand—the Irish
land question. They believed that force was the best—the only—remedy for
agrarian disorders. They did not grasp the essential fact that rack-rents,
insecurity of tenure, and the confiscation of the tenants’ improvements by
the landlords, lay at the root of the trouble, and that legislation to
protect the tenant from injustice and oppression was the cure. The result
was that the staple industry of the country was paralysed, and periodical
famines, and constant outbursts of lawlessness and crime, almost
threatened the very existence of society. No stronger argument can be used
to prove the incompetence of Englishmen to rule Ireland, than the
ignorance and incapacity shown by English statesmen throughout the
nineteenth century, in dealing, or rather in refusing to deal, with this
vital question of the land.
English statesmen saw nothing wrong in the exclusive establishment and
endowment of the Church of the Protestant minority in a Catholic country,
nor did they see just cause for complaint because Catholic peasants were
forced, at the point of the bayonet, to pay tithes to Protestant parsons.
Protestant education was assisted by the State. Nothing was done by the
Government for the education of Catholics. Thus for the first twenty-eight
years of the century the policy of the English in Ireland was calculated
to embitter religious feelings, and to inflame national animosities. When
Catholic emancipation (granted under the pressure of a great revolutionary
agitation) came in 1829 it did not improve the situation because the
people saw in it, not the measure of England’s justice, but the measure of
her fears.
II
All, then, that happened, between 1800 and 1829, served only to make the
chasm which separated the two countries, deeper and wider. What happened
between 1829 and 1835? I turn once more to my chronology:
1830. Arms Act.
1831-1832. Stanley’s Arms Act.
1833-1834. Grey’s Coercion Act.
1834-1835. Grey’s Coercion (Continuance) Act amended.
Ireland remained as disaffected and disturbed as ever. Why? Because
Catholic Emancipation (delayed for twenty-nine years), was, when carried,
practically made a dead letter; the country was still governed, through
the Protestant minority, in opposition to the opinions and feelings of the
masses of the people; while the incompetence of Parliament to deal with
the tithe question, and the land question, led to an agrarian and tithe
war, which the Coercion Acts were powerless to stop. In 1831, indeed,
Parliament had established the “national” schools, but the scheme was not
what the people wanted. Protestants and Catholics alike desired
denominational education, but the Government gave them a mixed system. For
many years the system was worked (by a board consisting of five
Protestants and two Catholics in a country where Catholics were to
Protestants as four to one) in an anti-Irish spirit, and it failed,
accordingly, to win popular support or confidence. In truth, the people
saw in the “national” schools only institutions for anglicising the
country. A Scotch Presbyterian practically managed the system. The books,
with one exception, were prepared by Englishmen or Scotchmen. Irish
history and national poetry were boycotted. Patriotic songs were
suppressed. The limit of folly and absurdity was reached when Scott’s
“Breathes there a man” was replaced in one of the books by these lines:
“I thank the goodness and the grace
That on my birth have smiled,
And made me in these Christian days
A happy English Child.”(148)
In 1832 a worthless Irish Reform Act, under which the representation of
the country became “virtually extinguished,”(149) was passed against the
protest of the Irish members, all of whose amendments, aiming at making it
a genuine measure for the extension of the franchise, were contemptuously
rejected. Ignorance and prejudice, the absence of all sense of justice, an
utter inability to understand the Irish case, a determination to trample
on popular rights and to disregard public opinion—these were the
characteristics of English statesmanship in Ireland between 1829 and 1835.
Mr. Lecky’s account of the manner in which Catholic Emancipation was
carried out is worth quoting:
“In 1833—four years after Emancipation—there was not in Ireland a
single Catholic judge or stipendiary magistrate. All the high
sheriffs, the overwhelming majority of the unpaid magistrates and
of the grand jurors, the five inspectors-general, and the
thirty-two sub-inspectors of the police, were Protestants. The
chief towns were in the hands of narrow, corrupt, and for the most
part, intensely bigoted, corporations. For many years promotion
had been steadily withheld from those who advocated Catholic
Emancipation, and the majority of the people thus found their
bitterest enemies in the foremost places.”
No wonder that, Lord Melbourne, in coming into office thirty-five years
after the Union, should have found Ireland still a centre of disaffection
and disturbance.
III
The Melbourne Ministry was kept in office from 1835 to 1841 by the Irish
Vote. O’Connell made a compact—the historic Lichfield House compact—with
Ministers. It came to this: They were to introduce remedial measures for
Ireland, and he was, meanwhile, to suspend the demand for repeal of the
Union. He said to the Irish people:
“I am trying an experiment, I want to see if an English Parliament
can do justice to Ireland. I do not think it can, but I mean to
give the present Government a chance, and see what they can do.
And I will suspend the demand for repeal to give them a fair
trial.”
What came of that “fair trial” we shall now see.
The tithe question was the question of the hour. A tithe war had been
raging, between 1830 and 1835, distracting the country, and forcing the
attention of Parliament to Irish affairs. On March 20th, 1835, the
Government of Sir Robert Peel took up the question, and Sir Henry
Hardinge, the English Chief Secretary in Ireland, moved a resolution to
convert tithes into a rent charge at 75 per cent. of the tithe. O’Connell,
in dealing with Hardinge’s resolution, said that no measure relating to
tithes would be satisfactory which did not contain a clause appropriating
the surplus revenues of the established church to purposes of general
utility. Subsequently (on April 7th), Lord John Russell moved:
“That it is the opinion of this House that no measure upon the
subject of tithes in Ireland can lead to a satisfactory adjustment
which does not embody the principle of appropriation.”
This resolution was carried by a majority of twenty-seven. Whereupon the
Government of Sir Robert Peel resigned, and Lord Melbourne became Prime
Minister, with Lord John Russell as leader of the House of Commons. What
was the upshot of the Parliamentary struggle, lasting for three years,
over the tithe question? Simply this. In 1838 an Act was passed,
converting tithe into a rent charge of 75 per cent. of the tithe, and
containing no appropriation clause. Peel had proposed a Bill of the very
same kind in 1835. Russell objected to it, insisting on the necessity of
an appropriation clause, and proposing the conversion of tithes into a
rent charge of 68% of the tithe. Successful (by the Irish vote) in the
Commons, but defeated in the Lords, he ultimately abandoned his conversion
scheme, flung the appropriation clause to the winds, and passed what was
really Peel’s measure of 1835. Of course tithes were not abolished. The
payment of them was, in the first instance, transferred from the tenants
to the landlords, then the landlords added the tithes to the rent, so that
the unfortunate tenants were still mulcted in one way, if not in the
other.
In 1838, also, the Irish Poor Law was introduced under circumstances
thoroughly characteristic of English methods in Ireland: In 1833, a Royal
Commission was appointed to consider the subject of Irish destitution in
reference to the advisability of establishing “workhouses” to alleviate
Irish distress. The Commission consisted chiefly of Irishmen, though the
Chairman, Archbishop Whateley, was an Englishman. The Commissioners took
three years to consider the subject submitted to them; and, at the end of
that time, made a report which, in the light of subsequent events, must be
pronounced a statesmanlike document. They said, in effect, that the cure
for Irish distress was work, not workhouses. The labouring poor were
able-bodied men who only needed employment, and scope for their energies;
and should be provided with work which would develop the resources of the
country, and remove the causes of poverty. A Vice-regal Poor Law Reform
Commission, which reported in 1906, refers to the Report of the
Commissioners of 1833, in the following language:
“It will probably surprise most of those who study the condition
of Ireland, and who have considered how to improve it, to find
that a Commission that sat seventy years ago recommended land
drainage and reclamation on modern lines, the provision of
labourers’ cottages and allotments, the bringing of agricultural
instruction to the doors of the peasant, the improvement of land
tenure, the transfer of fixed powers from grand juries to county
boards, the employment of direct labour on roads by such county
boards, the sending of vagrants to colonies to be employed there
or to penitentiaries in this country; the closing of public-houses
on Sundays, and the prevention of the sale of groceries and
intoxicating drink in the same house for consumption on the
premises. Such were the recommendations of the Royal Commission of
Inquiry into the Condition of the Poorer Classes.”(150)
For the sick and impotent poor the Royal Commission reported practically
that relief ought to be afforded by voluntary associations, controlled by
State Commissioners, and whose revenues might be strengthened by the
imposition of a contributory parochial rate. Emigration, as a temporary
expedient, was also recommended in certain cases.
The Report of the Royal Commissioners was laid before Lord John Russell.
Lord John Russell flung the Report into the ministerial waste paper
basket, and despatched a young Englishman named Nicholls, a member of the
English Poor Law Commission, to report afresh on the subject. Mr. Nicholls
paid a roving visit to Ireland. The Royal Commission had taken three years
to consider the question. Mr. Nicholls disposed of it in six weeks. He, of
course, made the report that was expected of him. He recommended the
establishment of workhouses. The Government brought in a Workhouse Bill,
which was opposed by the Irish Members in committee, and on the third
reading, but was carried, nevertheless, by overwhelming majorities.(151)
In concluding this story let me quote the following brief extracts from
the Vice-regal Commission of 1903-6:
“I. The poverty of Ireland cannot be adequately dealt with by any
Poor Relief Law, such as that of 1838, but by the development of
the country’s resources, which is, therefore, most strongly urged.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
“III. The present workhouse system should be abolished.”
Thus, after the lapse of three-quarters of a century, has the policy of
the Irish Commission of 1833 been vindicated, and the policy of the
English Parliament condemned.
The Government also took up the question of municipal reform. There were
at the time sixty-eight municipalities in Ireland, all in the hands of the
Protestant ascendency. It was the policy of O’Connell to preserve all
these municipalities and to reform them. The Government tried to carry out
his policy, but in vain. Then, in 1836, they carried through the House of
Commons, a Bill creating a £10 household suffrage in seven of the largest
cities, and a £5 one in the others, but the measure was rejected in the
House of Lords which desired the abolition of the Irish municipalities
altogether. In 1837 the Bill was again passed through the Commons, and
again rejected by the Lords. Peel then proposed, as a compromise—a £10
rating franchise in twelve of the largest towns, and a similar franchise
in the smaller, provided the Lord Lieutenant allowed them to be
re-incorporated. Lord John Russell consented to this proposal on
conditions that the franchise in the small towns—corporations _in
posse_—should be reduced to £5. For two years longer a struggle was
carried on between the two parties, mainly over the question of the
franchise in the smaller towns (in the event of their being incorporated).
Finally, in 1840, the Government gave way all along the line, passing an
Act which abolished fifty-eight municipalities, and conferred a £10
franchise on the remaining ten.
The Melbourne Ministry fell in 1841. O’Connell had kept the Government in
office for five years. During that time they had passed useful measures
for England; but in their Irish legislation they failed utterly. The Tithe
Act was a sham, the Poor Law, passed in the teeth of Irish Opposition, was
detested in Ireland, and the Municipal Reform Act has well been described
by Sir Erskine May “as virtually a scheme of municipal disfranchisement.”
When all was over, O’Connell said:
“The experiment which I have tried has proved that an English
Parliament cannot do justice to Ireland, and our only hope now is
in the Repeal of the Union.”
He then unfurled the banner of repeal, and threw himself heart and soul
into the movement.
IV
While the Melbourne Ministry failed utterly in their Irish legislation,
the administration of the country by Thomas Drummond (Under-Secretary at
Dublin Castle, 1835-1840) was eminently successful. Though there were
Coercion Acts on the Statute book they were not enforced. Drummond
governed according to the ordinary law, and, by meting out even-handed
justice to all, won popular support and confidence. However, on the fall
of the Ministry, coercion again soon became the order of the day—thus:
1843-1845. Arms Act.
1847. Crime and Outrage Act.
1848-1849. Habeas Corpus Suspension Act, Crime and Outrage Act, Removal of
Aliens Act.
Between 1842 and 1845 Ireland rang with the demand for repeal. Great
meetings—monster meetings they were called—were held everywhere; and
O’Connell, by a series of the most eloquent and vehement speeches ever
addressed to public audiences, re-awakened the spirit of nationality and
intensified the popular hatred of England. In the days of the Melbourne
Ministry his policy was a policy of peace; but the English people would
not accept the olive branch. His policy now was a policy of war. His case
for repeal rested on two main propositions:
“(1) Ireland was fit for legislative independence in position,
population, and natural advantages. Five independent kingdoms in
Europe possessed less territory or people; and her station in the
Atlantic, between the old world and the new, designed her to be
the _entrepôt_ of both, if the watchful jealousy of England had
not rendered her natural advantages nugatory.
“(2) She was entitled to legislative independence; the Parliament
of Ireland was as ancient as the Parliament of England, and had
not derived its existence from any Charter of the British Crown,
but sprang out of the natural rights of freedom. Its independence,
long claimed, was finally recognised and confirmed by solemn
compact between the two nations in 1782; that compact has since
been shamefully violated, indeed, but no statute of limitation ran
against the right of a nation.”(152)
The Government of Sir Robert Peel put forth its full strength to crush
O’Connell, and the repeal movement. In 1844 O’Connell was tried by a
packed bench and a packed jury for seditious conspiracy, found guilty, and
sent to jail. His trial was one of the most scandalous incidents in the
history of British rule in Ireland, during the nineteenth century.
“The most eminent Catholic in the Empire,” says Sir Charles Gavan
Duffy, “a man whose name was familiar to every Catholic in the
world, was placed upon his trial in the Catholic Metropolis of a
Catholic country before four judges and twelve jurors, among whom
there was not a single Catholic.”
It is well known that the condemnation of O’Connell by this tribunal was
too much even for the House of Lords, which quashed the conviction and set
O’Connell free.
In 1847 O’Connell died, and a terrible famine swept over the land
decimating the people. Before the famine the population of Ireland was
8,175,124, three years afterwards it had sunk to 6,574,278. But that was
not the end. The “Young Ireland” party had sprung out of the repeal
movement. The “Young Irelanders” began as constitutional agitators. Like
O’Connell himself they simply demanded the repeal of the Union. But they
gradually became more extreme, and, ultimately, under the influence of the
wave of revolution, which swept over Europe in 1848, drifted into
insurrection. The rising of 1848 was quickly put down, and the “Young
Ireland” leaders were banished beyond the seas. All seemed lost. Ireland
was in despair. Yet the seed, sown by O’Connell and the “Young
Irelanders,” took root. The fruit was gathered in our own day. Home Rule
sprang out of the one movement, and Fenianism out of the other.
“The spirit of National Independence,” says Mr. Froude, “is like a
fire, so long as a spark remains a conflagration can be kindled.”
The fire of nationality burned low during the Melbourne Administration;
but rekindled by O’Connell in 1842, and fanned into flame by “Young
Ireland,” it was not put out by the misfortunes and disasters in which the
first forty-eight years of the Union closed.
V
I have said that land was the staple industry of Ireland. Yet Government
after Government failed to realize that the enactment of laws for the
protection of the tenant—the protection of his improvements from
confiscation by the landlords, protection of himself from rack-rents and
arbitrary eviction—were necessary for the prosperity and peace of the
country. In 1836 Mr. Sharman Crawford introduced a Bill proposing that the
tenant should be entitled, on eviction, to compensation for improvements
of a permanent nature made with the landlord’s consent; or without his
consent, provided that such improvements were, according to the Chairman
of Quarter Sessions, necessary for the actual wants of the tenant. This
moderate Bill, strongly opposed by the landlords, was read a first time,
but it never reached another stage. Parliament having refused to protect
the tenants—refused indeed to take the slightest heed of their complaints
and grievances—the tenants continued to protect themselves by forming
secret societies whose operations struck terror in the land. In 1838 the
Under-Secretary, Thomas Drummond, boldly told the Tipperary Magistrates,
who cried out for coercion, that landlordism was the cause of agrarian
crime, and that remedial legislation, not coercion, was the remedy. He
said, in memorable words:
“The Government has been at all times ready to afford the utmost
aid in its power to suppress disturbance and crime, and its
efforts have been successful so far as regards open violations of
the law.... But there are certain classes of crime, originating in
other causes which are much more difficult of repression. The
utmost exertion of vigilance and precaution cannot always
effectually guard against them, and it becomes of importance to
consider the causes which have led to a state of society so much
to be deplored, with a view to ascertain whether any corrective
means are in the immediate power of the Government or the
Legislature. When,” he continues, “the character of the great
majority of serious outrages occurring in many parts of Ireland,
though unhappily most frequent in Tipperary, is considered, it is
impossible to doubt that the causes from which they mainly spring
are connected with the tenure and occupation of land.
“Property,” he adds, “has its duties as well as its rights; to the
neglect of those duties in times past is mainly to be ascribed to
that diseased state of society in which such crimes take their
rise; and it is not in the enactment or enforcement of statutes of
extraordinary severity, but chiefly in the better and more
faithful performance of those duties, and the more enlightened and
humane exercise of those rights that a permanent remedy for such
disorders is to be sought.”
Another fierce outburst of agrarianism in 1842 startled English public
opinion, and drew from _The Times_ a memorable condemnation of
landlordism. The great English journal wrote:
“With feelings of mingled pain we have witnessed the reappearance
of that frightful system of murder and outrage which has so long
infested the south of Ireland, and in particular the unhappy
County of Tipperary.... The evil has arisen in the general system
upon which the occupation of land has been based and conducted,
and in the treatment of the occupier by the landlord.... A
landlord is not a tradesman; he stands to his tenantry, or he
ought to do so, in _loco parentis_; he is there as well for their
good as his own; they are not mere contractors with him, to hold
his land as capital, and pay him the full interest, or incur a
forfeiture; they are rather agents placed in his hands, and under
his care and protection, for the purpose of working the land, and
whose _natural_ relation with him cannot be determined except by
negligence or ill-conduct.
“If the land be treated as money, and tenantry as borrowers,
people may be sure that the landlord will be an usurer. This is
_generally_ true, but in Ireland the tenant who is thus treated as
though he had been an unfettered party to the original agreement,
has not the shadow of the character of a voluntary contractor. It
is with him, either to continue in the quarter of an acre which he
occupies, or to starve. There is no other alternative. Rack-rent
may be misery, but ejectment is ruin.”
At length in 1843 Sir Robert Peel appointed the famous Devon Commission to
enquire into the occupation and tenure of land in Ireland. In 1845 the
Commission reported that:
“(1) All the improvements in the soil were made by the tenants.
“(2) That these improvements were subjected to confiscation, and
were confiscated by the landlord.
“(3) That the outrage system sprang from the ejectment system; and
“(4) That it was necessary for Parliament to intervene to compel
the landlord to recoup the tenant on eviction for his outlay on
the land.”
The Report of the Devon Commission proved the case of the tenants up to
the hilt. What was done?
In May, 1845, Lord Devon declared in the House of Lords that if a Bill
were passed giving tenants compensation for improvements made by them in
the land “it would much strengthen the industry of the people of Ireland.”
In the same year Lord Stanley, in behalf of the Government, introduced a
Bill proposing that tenants should be entitled to compensation, on
disturbance, for prospective improvements of a permanent nature, made with
the consent of the landlord; or, without his consent, provided the
improvements had been effected with the authority and approval of a
Commissioner of Improvements, to be specially appointed for the purpose.
The functions of the Commissioners were to inspect the lands, and to
examine and inquire whether they would “bear” improvement; and then, if he
thought well of it, to authorise the works contemplated by the tenant and
to award, in case of eviction, such measure of compensation as was deemed
fair and equitable. This Bill was read a second time, then referred to a
Select Committee, and abandoned. In 1846 substantially the same Bill was
brought forward by the Government, and read a first time. Then the
Government fell and the Bill disappeared. In 1847, Mr. Sharman Crawford
brought forward a Bill to extend the Ulster Custom (practically fixity of
tenure and free sale) to the rest of Ireland. The Government—a Liberal
Government—took no interest in the subject. Crawford spoke to empty
benches and the Bill was defeated on the second reading by an overwhelming
majority. In 1848 Crawford brought forward his Bill again, and it was
again defeated. In the same year the Government brought forward a Bill
which was the same as the Government Bill of 1846. It was read a second
time, then referred to a Select Committee and heard of no more that
session. So far Parliament had done nothing to carry out the
recommendations of the Devon Commission—nothing for the protection of the
tenants. But in 1849 Lord John Russell passed a Bill for the relief of the
landlords—a Bill giving landlords facilities for selling their encumbered
estates. This measure is well known as “The Encumbered Estates Act.” Let
me quote what Lord Russell of Killowen said about it before the Parnell
Commission:
“It is hardly conceivable that a Legislature in which Ireland was
represented—imperfectly, it is true—that a Legislature purporting
to deal with Ireland should have so misconceived the position as
to have passed that Act. For what did it do? It sold the estates
of the bankrupt landlords to men with capital, who were mainly
jobbers in land, with the accumulated improvements and interests
of the tenants, and without the slightest protection against the
forfeiture and confiscation of these improvements and interests,
at the hands of the proprietor newly acquiring the estate. It was
intended, I doubt not, to effect good. It proved a cause of the
gravest evil.”
What a mockery of legislation! The Devon Commission had reported in favour
of the tenant’s claims, and recommended the enactment of laws for his
protection. Parliament passed an Act introducing into Ireland a new set of
landlords who were worse than the old, and leaving the tenant hopelessly
at their mercy.
In 1850 the Irish Secretary of the day brought in a Bill (practically the
same as Lord Stanley’s Bill of 1845) giving the tenant compensation for
improvements. The Bill was read a second time, committed, and dropped. In
the same year Sharman Crawford again introduced his “Tenant Right” Bill,
but it was never read a second time.
In November, 1852 (when the Irish Parliamentary Party held the balance
between English parties),(153) the Tory Government introduced a Bill
giving to the tenant compensation for improvements, prospective and
retrospective, made by him in the land. The Bill was read a second time
without opposition in December and then referred to a Select Committee.
When the Whigs came into office in 1853 they took up the measure which,
subject to certain alterations, was approved of by the Select Committee.
The Bill was finally read a second time in the Lords and then dropped for
the session. It was reintroduced in 1854, and read a second time in the
Lords; referred to a Select Committee, condemned by the Committee, and
lost. Between 1854 and 1860 Land Bill after Land Bill was introduced by
the Irish Parliamentary Party for the purpose of giving compensation to
tenants for improvements, but all were rejected. Finally (in 1860),
imitating the example of 1849, the Whig Government of the day passed a
Land Act in the interests of the landlords. Let me describe this Act in
the words of Lord Russell of Killowen. “This was an Act passed to help the
landlords, and not one passed for the protection of the tenants. It turned
the relation between landlord and tenant from relation by tenure into
relation by contract;(154) it gave certain facilities in the matter of
proceedings in ejectment; it recognized and formulated what had been an
existing law in Ireland—going back for a long period—a state of law
unknown in this country. I mean the right of ejectment, pure and simple,
for non-payment of rent.” The recommendations of the Devon Commission were
not only not carried out but were absolutely ignored. Happily however the
Act proved a dead letter. “This enactment,” said the Bessborough
Commission of 1881, “has produced little or no effect. It may be said to
have given utterance to the wishes of the Legislature, that the
traditional rights of tenants should cease to exist, rather than to have
seriously affected the conditions of their existence.” It was in reference
to the Encumbered Estates Act, and this Act, that Mr. Gladstone once
exclaimed in the House of Commons: “In our very remedies we have failed.”
In 1866 the Government brought in a Bill to amend the Act of 1860 in the
interest of the tenants, but it never became law. The Bill was again
brought forward in 1867 and again lost. While every Land Act in the
interest of the tenant between 1849 and 1867 was rejected, the Statute
book continued to be filled with Coercion Acts. Thus:
1850-1855. Crime and Outrage (Continuance) Act.
1856, 1857. Peace Preservation Act.
1858-1864. Peace Preservation (Continuance) Act.
1865. Peace Preservation (Continuance) Act.
1866-1869 (off and on). Habeas Corpus Suspension Act.
As Parliament treated the land question, so it treated the church
question, and every question in which the Irish people were interested.
Their complaints, as Bright said, “were met with denial, with contempt,
with insult.” Ministers, indeed, slumbered peacefully as if there were no
Irish question, until they were rudely awakened in 1867 by the ringing of
the “Chapel bell.” Fenianism—a Society founded to sever the connection
between England and Ireland—brought Liberals and Tories to their bearings;
and under the pressure of that great revolutionary organization (which set
Ireland in a blaze), the Church was disestablished in 1869, and the first
Land Act (which in the slightest degree served the interests of the
tenants) passed in 1870. This Act provided that tenants, when evicted,
should receive compensation for improvements, and in certain cases, for
disturbance. It also contained clauses for the creation of a peasant
proprietary, and recognized and legalized the Ulster custom of tenant
right. But the Act was a failure. The peasant proprietary clauses did not
work; rack-renting continued, evictions increased, and the general
discontent remained the same as ever. In these circumstances the Irish
members demanded fresh legislation, and introduced several Bills for this
purpose between 1876 and 1881. They were all rejected by overwhelming
majorities. Then the Land League came; lawlessness and outrage came;
treason and anarchy came; and the Land Act of 1881 was passed in a storm
of revolution. The reasons given by Lord Salisbury for not opposing the
Bill in the House of Lords are too remarkable, and too little known not to
be quoted. He said:
“In view of the prevailing agitation, and having regard to the
state of anarchy (in Ireland), I cannot recommend my followers to
vote against the second reading of the Bill.”
and in the same speech he added:
“What will be the attitude of the tenant all this time? He, like
the landlord, will be looking to the future, but in a very
different temper. He knows perfectly well that all he has hitherto
got he has not got because he has moved your convictions, but
because he has moved your fears.”
“The pivot of the Act of 1881,” to use the language of Mr. Forster, was
the “Land Court” established to stand between landlords and tenants, to
fix fair or judicial rents. Previously, the landlord was master of the
situation. The competition for land placed the tenant at his mercy, and he
accordingly fixed the rent at his own pleasure. But henceforth rents were
to be fixed by legal tribunals; and while the tenant paid the rent so
fixed, he could not be disturbed in his holding for a period of fifteen
years. Roughly speaking, the Act changed Irish tenancies from tenancies at
will practically to leaseholds, renewable every fifteen years, subject to
revision of rent by the Land Courts. It also recognised the tenant’s right
to sell his holding, and provided facilities for the creation of a peasant
proprietary.
But the Land Act of 1881 did not settle the land question. The system of
dual ownership which it set up was agreeable neither to landlord nor
tenant, and both now combined to demand fresh legislation for the purpose
of enabling the tenants to purchase their holdings. The Act had destroyed
the prestige of the landlords; they were disgusted with the spectacle of
seeing “briefless barristers,” (as the Judges of the Land Courts were
called), “rambling about the country” and fixing rents independently of
their wishes; their occupation as territorial magnates was gone and they
were now willing to dispose of their estates, if only they could obtain
good terms. The cry of the tenant always had been the “land for the
people,” and they raised that cry now louder than ever. Extraordinary as
it may seem the English Tory party took the lead in responding to it. In
1885 the first of a series of Tory Land Purchase Acts was passed. By this
measure the state was empowered to advance the whole of the purchase money
to tenants who had agreed with their landlords to purchase their holdings;
forty-nine years were allowed for repayment of the purchase money, at the
rate of 4 per cent. per annum. Between 1885 and 1912 six more Land
Purchase Acts were placed on the Statute book. With a single exception,
all these Acts were passed by Tories. Therefore the Tories take credit to
themselves for the policy of land purchase. But rather the credit belongs
to Charles Stewart Parnell and the Land League, who, by the revolution of
1881, not only made land purchase possible, but made it inevitable. I
cannot here deal with these Acts in detail(155) but the following table
gives a list of them and shows how they have worked. It also mentions
other Acts which contain provisions for facilitating the creation of a
peasant proprietary.
Act. No. of Purchasers. Amount of Advances.
I.—Irish Church Act, 6,057 1,674,841
1869
II.—Landlord and 877 514,536
Tenant Act, 1870
III.—Land Law 731 240,801
(Ireland) Act, 1881
IV.—Land Purchase 25,367 9,992,536
Acts, 1885, 1887,
1888 and 1889
V.—Land Purchase 46,806 13,633,190
Acts, 1891, 1896
VI.—Irish Land Act, 117,010 41,293,564
1903
VII.—Evicted Tenants 550 307,550
Act, 1907
VIII.—Irish Land 1,444 422,562
Act, 1909
Total 198,842 68,079,580(156)
Mr. Gladstone once said to me that he was deeply moved by the
Parliamentary history of the Irish Land question. It was a subject of the
greatest magnitude affecting as it did the life of the country. Yet the
Imperial Parliament failed for three quarters of a century to realize the
importance and the gravity of the case; and even then did not grapple
successfully with it.
“A sad and a discreditable story,” was his comment.
Nowhere, I repeat, can a stronger argument in favour of Home Rule be found
than in the history of the Irish Land Question.
VI
There is one fact in connection with the Government of Ireland during the
nineteenth century with which, I think, English Statesmen are but
imperfectly acquainted, viz., that the Catholic Emancipation Act of 1829
was an utter failure. It was thought that when Irish Catholics were
admitted to the English Parliament all would go well with Ireland. But the
Irish Catholic member in the English Parliament was absolutely useless to
Ireland; and it was that uselessness which led to the Repeal Agitation,
Young Ireland, Fenianism, and the Home Rule movement.
The policy of the English Parliament in truth fostered the idea of Irish
nationality. It is, perhaps, within the range of possibility, that good
legislation, and good administration might have put out the fire. I know
not. But as it was those who made the laws, and those who administered the
laws, fed the flame. Every Coercion Act was a nail in the coffin of the
Union; and a reminder that the foreigner ruled in the land. When O’Connell
was “master of the situation” in 1835, he thought that the opportunity had
at length arrived of obtaining important remedial measures for Ireland. We
know how his hopes were disappointed. When the Irish Members held the
balance between English parties in 1852, they thought that the time had
come for securing a beneficial Land Act; but they also were doomed to
disappointment.
In fact between 1829 and 1869 the Irish Members failed to place upon the
Statute book one single measure for which the Irish people had loudly
called; and the measures of 1869 and 1870 were due to Fenianism and not to
parliamentary action.
Between 1870 and 1881 the efforts of the Parliamentarians were again
marked by failure, and we know, from Mr. Gladstone himself, that, there
would have been no Land Act in 1881 if there had been no Land League. In
1884 household suffrage was extended to Ireland. The General Election of
1885 made Parnell “master of the situation.” What was he able to do? He
certainly got the Home Rule _Bill_ of 1886 and converted the Liberal party
to the cause; but he did not win Home Rule. Between 1892 and 1895 a
Liberal Government was once more kept in office by the Irish vote. But
though a Home Rule Bill was carried through the Commons in 1893 Home Rule
was not won. Finally between 1895 and 1906 Home Rule was thrust into the
background by an English majority.
Well might Sir Spencer Walpole have written: “The treatment of Ireland
made representative Government in Ireland a fraud. It is absurd to say
that a country enjoys representative institutions if its delegates are
uniformly out-voted by men of another race.”
While the Irish representation in the Imperial Parliament was a fraud, the
English Administration of Ireland was an outrage on national sentiment.
After Catholic Emancipation, as before, it was, in the main, based on
Protestant Ascendency principles, which meant not Ireland for the Irish,
but Ireland for an English faction. As a rule no man in touch with popular
feeling was allowed to have a voice in the government of the country.
Catholics as Catholics were habitually excluded from office. Since
Catholic Emancipation there has not been a Catholic Lord-Lieutenant, nor a
Catholic Chief Secretary. There have been 3 Catholic Under-Secretaries.
There have been 3 Lord Chancellors. In the High Court of Justice there are
17 Judges; 3 of them are Catholics. There are 21 County Court Judges and
Recorders; 8 of them are Catholics. There are 37 County Inspectors of
Police; 5 of them are Catholics. There are 202 District Inspectors of
Police; 62 of them are Catholics. There are 5,518 ordinary Justices of the
Peace; 1,805 of them are believed to be Catholics. There are 68 Privy
Councillors; 8 of them are Catholics. And in other offices, through the
whole gamut of the administration, the same principle of exclusiveness was
observed. Nor was this all. Catholics who were appointed to office,
feeling that they were “suspect” as Catholics, only too often, in order to
show that their loyalty was above suspicion, became more Protestant than
the Protestants, and more English than the English. “We have now captured
the Castle,” I heard an Irish Catholic official say, in reference to a
Catholic appointment which had recently been made. The retort was obvious.
“No, but the Castle has captured you.” In truth, no matter what was the
religion of the official, he appeared before the people as the instrument
of a foreign government, not as the servant of the Irish nation. Let us
remember that it was in the year 1885, not in “ancient times,” that Mr.
Chamberlain said in memorable language:
“I do not believe that the great majority of Englishmen have the
slightest conception of the system under which this free nation
attempts to rule the sister country. It is a system which is
founded on the bayonets of 30,000 soldiers encamped permanently as
in a hostile country. It is a system as completely centralised and
bureaucratic as that with which Russia governs Poland, or as that
which prevailed in Venice under the Austrian rule. An Irishman at
the moment cannot move a step—he cannot lift a finger in any
parochial, municipal, or educational work, without being
confronted with, interfered with, controlled by an English
official, appointed by a foreign Government, and without a shade
or shadow of representative authority.”
It was not until 1898 that popular control in local affairs was
established by the County Councils’ Act.
Englishmen often say to me: “What an illogical and unreasonable people you
Irish are. At the very time when we were showing our determination to do
justice to Ireland, when we had disestablished the State Church in 1869,
and passed the Land Act of 1870 at that very time, in the very year 1870,
you started the Home Rule movement.” Englishmen say many foolish things
about Ireland, because they know nothing about Irish history, and indeed
give very little serious thought to Irish affairs. The fact that the
English State Church was not disestablished for sixty-nine years after the
Union, and that an Act for the protection of the tenants and for securing
the proper cultivation of the soil was not passed until seventy years
after the Union; and that it took constant agitation and incessant
outbursts of lawlessness and crime and finally a revolutionary convulsion
to accomplish these things, was a sufficient justification for the
establishment of the Home Rule movement in 1870. Had the government of
Ireland in the nineteenth century been as good as it was bad, still I hope
that the Irish people would not have relinquished their national
claims—would not have sold their birthright for any mess of porridge; but
they did not get the porridge; rather vinegar and gall had been the
offering of England to the “sister” isle during sixty-nine years of
“Union.” I have said that the seed sown by O’Connell and Young Ireland
took root, so did the seed sown by England. Extremes meet. The
agitator—the rebel—and the English Government combined to keep the spirit
of nationality alive, and to make the demand for Home Rule inevitable and
irresistible.
It was on May 19th, 1870, that the Home Rule Association was founded. It
was no wonder after seventy years of the Union that failed that the
following resolution should have been passed:
“That it is the opinion of this meeting that the true remedy for
the evils of Ireland is the establishment of an Irish Parliament
with full control over our domestic affairs.”
The objects of the Association were then set forth.
“To obtain for our country the right and privilege of managing our
own affairs by a Parliament assembled in Ireland, composed of Her
Majesty, the Sovereign, and her successors, and the Lords and
Commons of Ireland.
“To secure for that Parliament, under a federal arrangement, the
right of legislating for, and regulating all matters relating to
the internal affairs of Ireland, and control over Irish resources
and expenditure, subject to the obligation of contributing our
just proportion of the Imperial expenditure; [leaving to] an
Imperial Parliament the power of dealing with all questions
affecting the Imperial Crown and Government, legislation regarding
the Colonies and other dependencies of the Crown, the relations of
the United Empire with foreign States, and all matters
appertaining to the defence and stability of the Empire at
large....”
At the General Election of 1874, 59 Home Rulers were returned to
Parliament. At the election of 1880 the number was increased to 61. At the
election of 1885 it was increased to 85, at which figure it stands to-day.
On June 30th, 1874, a motion by Isaac Butt for an enquiry into the subject
of Home Rule was defeated in the House of Commons by 458 votes to 61.
Nineteen years afterwards a Bill to establish a Parliament and an
Executive in Dublin for the management of Irish Affairs was carried
through the House of Commons by the Government of Mr. Gladstone. On the
retirement of Mr. Gladstone from public life Home Rule received a set back
in England, but to-day it holds the field once more.
If the Land Act of 1870 had been a success instead of a failure it could
not have checked the flowing tide. It was in 1871 that Mr. Lecky wrote:
“The sentiment of nationality lies at the root of Irish discontent.” Ten
years earlier Goldwin Smith used the following remarkable language:
“The real root of Irish disaffection is the want of national
institutions, of a national capital, of any objects of national
reverence and attachment, and, consequently, of anything deserving
to be called national life. The greatness of England is nothing to
the Irish. Her history is nothing, or worse. The success of
Irishmen in London consoles the Irish no more than the success of
Italian adventurers in foreign countries (which was very
remarkable) consoled the Italian people. The drawing off of Irish
talent, in fact, turns to an additional grievance in their mind.
Dublin is a modern Tara; a Metropolis from which the glory has
departed; and the Vice-Royalty, though it pleases some of the
tradesmen, fails altogether to satisfy the people. ’In Ireland we
can make no appeal to patriotism; we can have no patriotic
sentiments in our school books, no patriotic emblems in our
schools, because in Ireland everything patriotic is rebellious.’
These were the words uttered in my hearing, not by a complaining
demagogue, but by a desponding statesman.”
Between 1861 and 1871 the tide of nationality was rising. Fenianism
diverted it in the direction of separation. Isaac Butt brought it back to
the channel of legislative autonomy. The failure of the Land Act of 1870,
the refusal of Parliament to amend it, the renewal of Coercion, the
political excitement caused by Fenianism and the definite demand for Home
Rule, swelled the tide and gave it fresh force. All the Land Acts passed
between 1881 and 1909 have not changed the current of public feeling. Home
Rule has not been killed by kindness.
The class which long refused to remove Irish material grievances, now say,
that, since some of those grievances have been remedied, the Irish ought
to abandon the demand for Home Rule. John Stuart Mill warned the class in
question many years ago that if the removal of material grievances were
delayed, the time might come when the fight would be for an idea, and that
then the Irish problem would be more formidable than ever. The fight
to-day is for an idea—the idea of nationality—and English Unionist
statesmen do not apparently understand it:
“Alas for the self-complacent ignorance of irresponsible rulers,
be they monarchs, classes, or nations! If there is anything sadder
than the calamity itself, it is the unmistakable sincerity and
good faith with which numbers of Englishmen confess themselves
incapable of comprehending it. They know not that the disaffection
which neither has nor needs any other motive than aversion to the
rulers, is the climax to a long growth of disaffection arising
from causes that might have been removed. What seems to them the
causelessness of the Irish repugnance to our rule, is the proof
that they have almost let pass the last opportunity they are ever
likely to have of setting it right. They have allowed what once
was indignation against particular wrongs, to harden into a
passionate determination to be no longer ruled on any terms by
those to whom they ascribe all their evils.”(157)
Englishmen thoroughly appreciate the idea of nationality except when it
applies to Ireland.
Mr. Redmond has been recently censured because he said, in effect, that
material prosperity is not everything. Yet what did Mr. Disraeli say in
his inaugural address to the University of Glasgow in 1873:
“It is not true that physical happiness is the highest happiness;
it is not true that physical happiness is a principle on which you
can build up a flourishing and enduring commonwealth. A civilised
community must rest on a large realised capital of thought and
sentiment; there must be a reserved fund of public morality to
draw upon in the exigencies of national life. Society has a soul
as well as a body, the traditions of a nation are part of its
existence. Its valour and its discipline, its religious faith, its
venerable laws, its science and erudition, its poetry, its art,
its eloquence and its scholarship, are as much portions of its
existence as its agriculture, its commerce, and its engineering
skill. Nay, I would go further, I would say that without these
qualities, material excellence cannot be attained.”
That is the true doctrine. The spirit of nationality is the spirit of
life. Material progress itself springs from national freedom.
XIII.—The History Of Devolution. BY THE EARL OF DUNRAVEN
Before attempting to sketch the history of devolution in connection with
Ireland, two somewhat remarkable facts should be mentioned. A widespread
impression appears to exist that devolution as a means for solving the
Irish political problem is a modern invention, and that I am, in a large
measure, responsible for its introduction. I must in honesty disclaim the
honour. There is nothing new either in the expression or in its
application to Ireland. The term has been freely used by many statesmen,
and, as I think I can demonstrate, the advocacy of a scheme of Devolution
for Ireland has not been confined to any one of the two great political
parties of the State.
The second remarkable fact in connection with devolution, in its latest
expression, is the hostile attitude assumed towards it by the Nationalist
party. That the programme, modest as it was, published by the Irish Reform
Association in 1904 should have been assailed by many Unionists was
natural enough, but that any Nationalists should have denounced it with
equal or greater bitterness is very difficult to account for. The wiser
spirits welcomed the movement. The leader of the party—Mr. John
Redmond—alluding to us in America, said: “With these men with us Home Rule
may come at any moment,” and the Convention of the United Irish League of
America spoke of our action as “a victory unparalleled in the whole
history of moral warfare.” But Mr. John Dillon and Mr. Michael Davitt took
a very different view and condemned us in no measured terms. Mr. Davitt at
Clonmacnoise on September 4th, 1904, said: “If we are foolish enough to be
wiled by Lord Dunraven and Mr. George Wyndham, who is possibly behind this
wooden-horse stratagem, we will richly merit the contempt of our race and
friends everywhere for so abject a surrender of the National Movement,”
and at Enniscorthy, far from agreeing with Mr. Redmond that our assistance
was of the greatest value to the cause of Home Rule, he declared that: “No
party or leader can consent to accept the Dunraven substitute without
betraying a national trust.” Mr. Dillon at Sligo accused devolution of
being a scheme to “break National unity in Ireland and to block the
advance of the Nationalist cause.”
Unfortunately these sentiments prevailed, and every effort was made to
discredit and obstruct the movement. The attitude adopted towards
devolution is natural on the part of anyone whose aim is separation; but,
failing that, can be accounted for only by the animosity displayed by the
inner group of the party to any expression of opinion, unauthorised by
their official stamp. Devolution was anathematised simply because it was
suggested as a method of political reform by persons who did not
necessarily recognise the infallibility of the Party. It is impossible to
believe that by any contortion of thought the theory was really looked
upon as a cunningly constructed device for countering, or in some way
undermining, Home Rule, for whatever opinion might be held about the
personal honesty of myself and those associated with me, very little
examination into the question would have sufficed to dispel that delusion.
Home Rule up to a point necessarily implies devolution. Devolution is up
to a point the same thing as Home Rule. The difference lies in this. Home
Rule may be held to mean, has been held to mean, and is now by some held
to mean, repeal of the union and separation. Devolution means, and can
only mean, as applicable to the existing state of things—the delegation by
the one existing authority—the Imperial Parliament—of power to a
Parliament or body—call it what you will—created to exercise the power
delegated to it. The term of necessity implies supremacy and subordinacy.
Devolution may be confined to administration, as for instance in the
abortive Irish Councils Bill of 1907; or to legislative functions
conferring a status analogous to that of Grattan’s Parliament, which while
enjoying full legislative power exercised practically no executive
authority whatever; or it may embrace all the functions of government. The
devolution may be large or small, confined or comprehensive. There is no
limit save one to the delegating power of the central authority. It can
confer whatever legislative and executive functions it pleases, but it
cannot divest itself of its power of resumption, and it must remain
supreme.
It will be seen therefore that devolution does not connote separation. It
is incompatible with repeal, but it is compatible with—it is in fact
indistinguishable from, any conception of Home Rule that acknowledges the
supremacy of the Imperial Parliament. It is applicable to propositions of
reform however small or however large. The modest little Councils Bill
already alluded to proceeded by devolution. Complete reconstruction of the
United Kingdom on federal lines can be accomplished only by devolution,
for to commence operations by restoring Wales to the position she occupied
in 1284, and Scotland and Ireland to the status they respectively held in
1707 and 1800, and then to invite them to enter a federal union would be
an idea worthy of the pen of a Lewis Carroll in a sort of political “Alice
in Wonderland.” Ireland’s political problem can be solved only in one of
two ways. She must be granted either absolute independence tempered only
by the precarious tie of a common Crown, or legislative and administrative
powers delegated by a superior to a subordinate Parliament. By Home Rule
separation may be meant. Separation would, in my opinion, be disastrous to
Great Britain and fatal to Ireland. Devolution would be beneficial to
both, and it is because the term draws a clear distinction between
independence and any form of autonomy short of independence, that I prefer
to call myself a Devolutionist rather than a Home Ruler.
That devolution to a local authority, or to local authorities, is the
proper remedy for evils affecting Great Britain and Ireland, has been, for
various reasons, admitted by responsible statesmen during the last fifty
years. As long ago as 1865 the late Lord Salisbury, then Lord Robert
Cecil, enquiring why “a people with so wonderful a soil, with such
enormous resources (as the Irish) lagged so far behind the English in the
race?” and examining critically all the usual reasons assigned, came to
the conclusion that the cause was not to be found in any of them, but was
to be sought for in the system of government. “I am afraid,” he said,
“that the one thing which has been peculiar to Ireland has been the
Government of England.” About the same time Lord Beaconsfield went so far
as to indicate his desire for a federal arrangement. In a conversation
with the American Ambassador in London in the early ’seventies he stated
that: “If he had to deal with the situation he would propose to place
Ireland in a similar position that New York held in the Federal
Government.” In 1879 Mr. Gladstone advocated devolution, and devolution on
federal lines, for the relief of Parliament.
“I desire,” he said, “I may almost say I intensely desire, to see
Parliament relieved of some portion of its duties.... We have got
an over-weighted Parliament; and if Ireland, or any other portion
of the country, is desirous and able so to arrange its affairs
that by taking the local part, or some local part, of its
transactions off the hands of Parliament, it can liberate and
strengthen Parliament for Imperial concerns, I say I will not only
accord a reluctant assent, but I will give a zealous support to
any such scheme.”
After indicating that the only limit he knew to the extension of local
government was the limit imposed by the necessity of maintaining the
supremacy of the Imperial Parliament, he went on to say:
“I will consent to give to Ireland no principle, nothing that is
not upon equal terms offered to Scotland and to the different
parts of the United Kingdom. But I say that the man who shall
devise a machinery by which some portion of the excessive and
impossible task now laid upon the House of Commons shall be
shifted to the more free, and therefore more efficient, hands of
secondary and local authorities, will confer a blessing upon his
country that will entitle him to be reckoned among the prominent
benefactors of the land.”
In 1885 Mr. Gladstone, the Duke of Devonshire and Mr. Chamberlain all
spoke in favour of devolution. The “Radical programme,” published with a
preface by Mr. Chamberlain, before the General Election of that year,
advocated the creation, in addition to County Councils and District
Councils, of elected National Councils for Ireland, Scotland, and (if
desired by the Welsh) Wales, to take over part of the duties of the
central administration, and also to deal with private Bills, but
apparently not with other matters of legislation. The appointment of a
Secretary for Scotland had not then been decided upon, but the subject was
under discussion, and the writer doubtless expected that greater attention
to Scotch legislation would be secured by that means. In the course of his
argument he said:
“Before dealing, as we presently shall at some length, with the
case of Ireland, it seems well to say a few words on another
object of the first importance, which can be accomplished only in
connection with some such extension of the principles of local
government as we are now considering. Recent experience has made
it perfectly clear that Parliamentary Government is being exposed
to a strain for which it may prove unequal. The overwhelming work
thrown upon the Imperial Legislature is too much for its
machinery.... The Imperial evil is not less than the domestic.
What, for instance, can be more deplorable than the systematic
neglect at Westminster of Colonial and Indian topics of the
highest moment? It is obvious that no mere extension of local
government upon the ordinary and restricted lines will relieve the
Parliamentary congestion which has long since become a national
calamity.”
The late Duke of Devonshire expressed, for so cautious a man, pretty
strong views on the imperfections of “Castle Government” and on the
advantages of devolution. Speaking in Belfast on November 5th, 1885, he
defended the Irish Government against accusations which he considered
unjust, but added:
“At the same time, I am perfectly willing to admit that it is very
possible and even probable, that the Irish Government as now
constituted is not the best fitted in all respects to discharge,
still less to undertake new and more important duties. I would not
shrink from a great and bold reconstruction of Irish
government....”
He explained that, in his opinion, considerable power ought to be left in
the hands of the executive, but added:
“I would endeavour so to frame those powers as to make them
capable of relaxation, perhaps ultimately of relinquishment, in
response to any proof we may receive from the Irish people of
their fitness for self-government, their fitness for the
assumption of those responsibilities.”
Later in the same year, Mr. Gladstone, in his address to the electors of
Midlothian, used the word “devolution” as, I believe, for the first time
in connection with the Parliamentary problem due to the over-pressure of
work. He said:
“It has gratified me to find abundant proof that the country was,
and is, fully alive to the vital importance of devolution.... The
task of the House of Commons in our time has habitually exceeded
what had ever been imposed upon a legislative body in the whole
history of the world.... I desire to point out the three cardinal
points of the question. First, the congestion of business, now
notorious and inveterate, degrades the House of Commons by placing
it at the mercy of those among its members who seek for notoriety
by obstructing business, instead of pursuing the more honourable
road to reputation by useful service, or of those who, with more
semblance of warrant, seek to cripple the action of the House of
Commons in order to force the acceptance of their own political
projects. Secondly, it disappoints, irritates, and injures the
country by the suspension of useful legislation. And lastly, and
perhaps worst of all, it defeats the fundamental rule of our
Parliamentary system—that the majority shall prevail.... This
country will not, in the full sense, be a self-governing country
until the machinery of the House of Commons is amended, and its
procedure reformed.”
It is possible that Mr. Gladstone had in his mind reform of procedure of
the nature of devolution to bodies within the House of Commons such as
Grand Committees; but in view of his former utterances it is probable that
he foresaw the necessity for devolution on a larger scale.
Mr. Chamberlain continued, even during the Home Rule controversy, faithful
in his advocacy of devolution. In a manifesto to his supporters, issued on
July 11th, 1886, he appealed to the moderate opinion in Great Britain for
a “delegation not a surrender of power,” on the part of the Imperial
Parliament. He outlined his political aims in the following succinct
statement:
The objects to be kept in view are:
(1) To relieve the Imperial Parliament by devolution of Irish
local business, and to set it free for other and more important
work.
(2) To secure the free representation of Irish opinion in all
matters of purely Irish concern.
(3) To offer to Irishmen a fair field for legitimate local
ambition and patriotism, and to bring back the attention of the
Irish people, now diverted to a barren conflict in the Imperial
Parliament, to the practical consideration of their own wants and
necessities.
And, lastly, by removing all unnecessary interference with Irish
Government on the part of Great Britain, to diminish the causes of
irritation and the opportunity of collision.
Mr. Chamberlain was acutely aware of the intimate connection between
political and agrarian reform, and outlined a general constructive policy
which was adopted up to a point later on by the Unionist party under the
inspiration of Mr. George Wyndham:
“It is clear,” said Mr. Chamberlain, “that suggested land reform
must precede the political change; and until the long-standing
quarrel between land-owners and land-occupiers has been
compounded, it will not be safe to trust the latter with full
control over the property of the former.... But, assuming that the
social war which now exists in Ireland were terminated by a
reasonable settlement, there are strong reasons for desiring, on
the one hand, to relieve the Imperial Parliament of some of the
constantly increasing burden of its local work, and, on the other
hand, to open up to Irishmen in their own country a larger field
of local ambition, together with greater liberty of action and
greater personal responsibility.”
The Duke of Devonshire also expressed himself in favour of devolution,
provided that “the powers which may be conferred on local bodies should be
delegated—not surrendered—by Parliament”; that “the subjects to be
delegated should be clearly defined; and the right of Parliament to
control and revise the action of legislative or administrative authorities
should be quite clearly reserved”; but he urged that “the administration
of justice ought to remain in the hands of an authority which is
responsible to Parliament.”
As recently as April, 1893, in the course of an article in _The Nineteenth
Century_ Mr. Chamberlain stated that “every Liberal Unionist will readily
agree” with a desire “to give to Ireland the management of such of its
affairs as can be handed over to an Irish Assembly without any risk or
danger to this country, and, I hope that I may add, without the loss of
honour that would be involved if the property and the liberties of all Her
Majesty’s subjects were not fully safeguarded.” It is evident that the
Liberal Unionist seceders drew a sharp distinction between separation and
devolution. They objected to Mr. Gladstone’s Bills because rightly or
wrongly they were convinced that they involved separation; but while
opposing them on that ground they held fast to their belief in the
efficacy of devolution.
After 1893 devolution was little heard of, but about ten years later the
theory was revived in the movement with which I became associated. This
modern suggestion of devolution was an offspring of the Conference on the
land question which was held during the winter of 1902. That Conference
produced a profound impression not only on the individuals composing it,
but also, with a few exceptions of a retrogressive or perverted type, upon
the classes represented, and consequently upon the whole community. The
land had been for generations, and for centuries, the cause of bitter
strife. The parties represented—indeed some of the individuals
representing them had come straight out of the firing line to confer upon
a question bristling with difficulties and overlain with passion and
prejudice. The Landlords’ Convention not unnaturally laughed to scorn the
idea of a settlement or even of amicable discussion; but they were
wrong—prejudice and passion were put aside and the difficulties were
overcome.
The Land Conference—an inspiration of the inarticulate moderate opinion
existing in Ireland—proved that frank and honest discussion between
Irishmen holding opposing views could be productive of good results, and
it naturally occurred to many of those interested that the tolerance, good
feeling and good sense displayed in settling so vexed a question might be
utilised to find a solution for other problems, social, economic and
political, presenting difficulties of a less formidable character.
On March 3rd, 1903, five members of the Land Conference Committee issued a
circular stating that it was “now becoming evident that only in a
reasonable system of devolution of legislative powers is to be found the
solution of the problem that demands such urgent consideration. In no
other way can Parliament be relieved from the ever-increasing strain of
public business or the legitimate aspirations of Ireland for some definite
form of self-government be met.”
The idea was a good one, but somewhat premature. The Land Conference
Committee having been appointed for a definite purpose—the settlement of
the land question, which had not then been fulfilled, had no authority to
deal with any other matter. All men’s minds were still occupied with the
consideration of the land purchase problem, and obviously the moment was
not suitable for a further step forward. The matter was therefore allowed
to drop; but in the summer of 1904, the way for the new—but yet old—policy
seemed open. The Land Conference had fulfilled its purpose. The Committee
was about to dissolve, and it occurred to some of us that a meeting should
be held in Dublin with a view to inaugurating a general policy for the
betterment of Ireland. In preparation for the meeting I sketched out
roughly what I thought our objects should be, and among them was a larger
control for Ireland over her local affairs. The Committee met on August
25th, and two resolutions were passed, one dissolving the Committee and
another forming the Irish Reform Association. We then set to work to
consider a programme, and on August 26th we adopted the following as
setting forth the objects of the Association:
“Believing, as we do, that the prosperity of the people of
Ireland, the development of the resources of the country, and the
satisfactory settlement of the land and other questions, depend
upon the pursuance of a policy of conciliation and goodwill and of
reform, we desire to do everything in our power to promote a union
of all moderate and progressive opinion, irrespective of creed or
class; to discourage sectarian strife and class animosities from
whatever source arising; to co-operate in re-creating and
promoting industrial enterprises; and to advocate all practical
measures of reform.
“While firmly maintaining that the parliamentary union between
Great Britain and Ireland is essential to the political stability
of the Empire, and to the prosperity of the two islands, we
believe that such union is compatible with the devolution to
Ireland of a larger measure of local government than she now
possesses.
“We consider that this devolution, while avoiding matters of
Imperial concern, and subjects of common interest to the Kingdom
as a whole, would be beneficial to Ireland, and would relieve the
Imperial Parliament of a mass of business with which it cannot now
deal satisfactorily, and which occupies its time to the detriment
of much more important concerns. In particular, we consider the
present system of financial administration to be wasteful and
inappreciative of the needs of the country.
“We think it possible to devise a system of Irish finance whereby
the expenditure could be conducted in a more efficient and
economic manner, and whereby the sources of revenue might be
expanded. We believe that a remedy for the present unsatisfactory
system can be found in such a decentralisation or localisation of
Irish finance as will secure to its administration the application
of local knowledge, interest and ability, without in any way
sacrificing the ultimate control over the estimates presented, or
in respect of the audit of money expended, at present possessed by
the Imperial Parliament. All moneys derived from administrative
reform, together with whatever proportion of the general revenue
is allocated to Irish purposes, should be administered subject to
the above conditions.
“We think that the time has come to extend to Ireland the system
of Private Bill Legislation which has been so successfully worked
in Scotland, with such modifications as Scotch experience may
suggest, as may be necessary to meet the requirements of this
country.
“We are of opinion that a settlement of the question of higher
education is urgently needed, and that the whole system of
education in this country requires remodelling and co-ordinating.
“We desire to do all in our power to further the policy of land
purchase in the spirit of, and on the general lines laid down in,
the Land Conference Report.
“We consider that suitable provision for the housing of the
labouring classes is of the utmost importance, and we shall be
prepared to co-operate in any practical proposals having the
betterment of this class in view.
“Among many other problems already existing, or which may arise in
the future, the above-mentioned appear to us to comprise those
most deserving of immediate attention, and which afford the most
reasonable prospect of attaining practical results; towards their
solution we earnestly invite the co-operation of all Irishmen who
have the highest interests of their country at heart.”
The programme was, as will be seen, socially and economically a
comprehensive one; but, so far as political reform was concerned, limited
to the devolution of administrative functions and reform of Private Bill
procedure.
Shortly afterwards we explained our views more in detail, and made a
further suggestion in recommending a delegation, not only of
administrative, but also of legislative functions to the Irish body. On
this point, and after giving our reasons for desiring a Private Bill
Procedure Act for Ireland, we said:
“... But the disabilities under which Ireland labours are not
confined to Private Bill procedure. The problems that affect her
well-being, the peculiarities of her position and requirements are
such that similarity of treatment does not always involve equal
justice ... under existing circumstances the special needs of
Ireland do not, and cannot receive, adequate attention. Sufficient
relief cannot, in our opinion, be afforded by mere amendment in
the Standing Orders of the House of Commons. Some delegation of
authority is necessary. We believe that power to deal with much of
the business relating to Irish affairs which Parliament is at
present unable to cope with, might, with perfect safety and with
advantage both to Ireland and Parliament, be delegated to an Irish
body to be constituted for the purpose.... Parliament should take
power to refer to the Statutory Body not only business connected
with Private Bill Legislation, but also such other matters as in
its wisdom it may deem suitable for reference, under prescribed
conditions. The experience gained by this method of _ad hoc_
reference would materially assist Parliament in the ultimate
grouping into distinct classes of matters to be referred to the
Statutory Body.”
The document is far too long to quote in full. We dealt critically with
the Irish problem as it presented itself to us then, and concluded with a
recommendation which, if it had been acted upon, would by now have borne
fruit in the shape of information of great value, to the public.
“... We do not consider it now opportune,” we said, “to make more
definite proposals on the points herein raised. We are prepared to
inquire fully into them if the Association so desire, but we
submit that inquiry can be best conducted by means of a Royal
Commission, and that the proper function of this Association is to
place its opinions and propositions before such a Commission. We
therefore recommend the Association to use its best endeavours to
secure the appointment of a Commission, and to instruct this or
some other Committee to prepare a detailed report for its
consideration, with a view to placing the same in evidence before
the Commission....”
In preparing this second programme we had the invaluable assistance of Sir
Antony MacDonnell (now Lord MacDonnell of Swynford) who occupied the
position of Under-Secretary, but on somewhat peculiar terms. Our
proposals, which are to be found in full in “The Outlook in Ireland,”
published for me by Mr. John Murray in 1907, may be considered as cramped
and limited in character, but the circumstances in which we found
ourselves must be considered. We had to deal with existing conditions. A
Unionist administration was in power. Home Rule was in abeyance, by many
looked upon as dead and decently buried out of sight for ever. But the
Chief Secretary and Under-Secretary were pledged to a policy of
administrative and economic reform, and the latter was known to be in
favour of some modification of the terms of the legislative union.
It is not necessary to re-open the controversy as to the connivance of the
Unionist party, or any of its members, with the early work of myself and
others.(158) No ministerial or official comment was made on our first
programme published on August 31st, 1904. Mr. Wyndham was away at the time
and in his absence I consulted with the Permanent Under-Secretary for
Ireland, a proceeding which I felt sure, would meet with the Chief
Secretary’s approval. The Unionist Lord-Lieutenant, the Earl of Dudley,
was also cognisant of the movement. The second programme was published on
September 26th of that year, and on the following day a letter from Mr.
Wyndham commenting upon it appeared in _The Times_. After criticising our
proposals he said “without reserve or qualification that the Unionist
Government is opposed to the multiplication of legislative bodies within
the United Kingdom,” and declared that such of our “aspirations” as were
“unimpeachable” were “prejudiced and not enhanced when they are confused
with any plan, however tentative, for the multiplication of legislative
assemblies within the limits of the United Kingdom.” Mr. George Wyndham,
in order not to embarrass his party, resigned his office, but Lord Dudley
remained Lord-Lieutenant after Mr. Walter Long had become Chief Secretary.
In some later correspondence, published in the spring of 1906, with Sir
Edward Carson, Lord Dudley after relinquishing his office stated:
“(1) That though I fully explained to the late Prime Minister the
nature of my connection with what you describe as Sir A.
MacDonnell’s Home Rule scheme, he never conveyed to me any
intimation that he or the Government disapproved, strongly or
otherwise, of my conduct, though, of course, I can well believe
that you and a few other Ministers disapproved not only of the
devolution proposals, but also of any attempt at governing Ireland
in sympathy with Irish ideas.
“(2) That I was never asked for and never gave any assurance that
it was no longer my intention to act in a manner at variance with
my position as a Unionist Lord-Lieutenant. It was not my opinion
then, nor is it now, that I ever so acted, and I do not consider
that my knowledge of the devolution proposal, still less my
conviction that Ireland should be governed according to Irish
ideas, is inconsistent with the position which I occupied.”
Devolution held the field when a Liberal administration came into power in
1906 and found expression in the Councils Bill. That Bill practically gave
to an Irish body control over the great spending departments. It embodied
devolution on a large scale, but entirely confined to administration. The
Liberal party had passed a self-denying ordinance in respect to Home Rule
while still in opposition. Sir Henry Campbell-Bannerman, speaking at
Stirling on November 23rd, 1905, said it was “his desire to see the
effective management of Irish affairs in the hands of a representative
Irish authority”; but he advised Irish Nationalists thankfully to take “an
instalment of representative control” ... “or any administrative
improvement” ... “provided it was consistent, and led up to their larger
policy.” We have it on the authority of Mr. T. P. O’Connor that this
declaration “was all that the Irish Nationalist party could have expected
at that moment, and it enabled them to give their full support at the
elections to the Liberal party”; and, in alluding to the private
breakfast-table conference between himself, a friend and Sir Henry
Campbell-Bannerman, he informs us that “the exchange of views was brief,
for there was complete agreement as to both policy and tactics.” Mr.
Redmond also, speaking at Motherwell a couple of days after the Stirling
speech, announced his readiness to accept any concession “which would
shorten and smooth the way to Home Rule.”
Notwithstanding these plain declarations Mr. Redmond, having accepted the
Councils Bill in the House of Commons, moved its rejection at the National
Convention and endeavoured to justify his action at the expense of
devolutionists by protesting “that the responsibility for this Bill
largely rests upon those who first encouraged this idea of devolution”—a
protest in which Mr. T. P. O’Connor joined him. The truth is that in their
Councils Bill the Government went in principle as far as they could under
the circumstances. The idea that they, or the Irish Reform Association in
general, and I myself in particular, were actuated by a desire to shelve
Home Rule by substituting a measure of administrative reform, is
pre-eminently absurd. The tactics pursued by the Nationalist party towards
the Irish Reform Association and the Government were most unwise. The
Association would, had it received the support it deserved, have certainly
organised and rendered articulate a body of moderate opinion strong enough
to neutralise any immoderate demonstration against the principle of Home
Rule on religious, racial, or social grounds. Had the Councils Bill been
amended and accepted by Ireland, and, as is probable, had it been passed
into law, Ireland would have had an opportunity, which she would have
availed herself of, of proving her aptitude to manage her own affairs, and
she would be now in a position of inestimable advantage to her. But
neither I nor the Reform Association considered the Bill as satisfying
Ireland’s reasonable demands. We looked upon it as valuable in itself _pro
tanto_ and as the honest effort of a Government with self-imposed limits
to do justice to Ireland. The Association having considered the matter,
passed and published a series of resolutions which space forbids me from
quoting in full. To summarise, we criticised the limited transfer of
departmental authority, and considered the financial proposals of the Bill
insufficient. We regretted “that the Bill entirely excludes consideration
of any powers of a legislative character.” But, as we thought the Bill
constituted an advance towards necessary reforms and was capable of
amendment in Committee, we expressed our regret at its summary rejection
by the National Convention.
Such is the story of the devolution movement in its modern expression.
Devolution is an elastic though not a vague term. As I have already said,
it is incompatible with repeal of the Union. It predicates a union of some
sort—connection with a superior delegating authority, but under that union
and subject to that authority its powers of expansion are unlimited. If I
may be allowed to quote from myself, an evil habit, I thus defined my
position in 1907. I then declared it was:
“... my ambition to see:—
“(1) Cordial, honest co-operation among Irishmen for their
country’s good. A true, living sense of Irish nationality is
necessary. Ireland united can accomplish anything in reason.
“(2) The exercise of moderation and common-sense on the part of
Irishmen.
“(3) The creation of friendly, fraternal relations between Great
Britain and Ireland on both sides—‘let the dead bury their dead.’
“(4) Recognition by Ireland of: (_a_) Her Imperial mission, her
share in the larger nationality covered by the Flag, and her
consequent duties and responsibilities; and (_b_) of the political
necessities of Great Britain.
“(5) Recognition by Great Britain of: (_a_) Irish nationality; and
(_b_) of the economic and social requirements of Ireland, and of
her just claim for exceptional treatment.”
and I concluded by saying:
“... My political creed is clear and simple. One Parliament is my
centre; its ultimate effective supremacy is my circumference; but,
emanating from that centre, and within that circumscribing limit,
I desire to see the largest possible freedom of action and
self-governing power delegated to Ireland.”
That was the opinion I then held and, in its general principles, that is
the opinion I hold now. I have endeavoured to obtain such a measure of
devolution as was at the time practical of attainment. My ideal is
devolution on federal lines—that is to say, devolution of a character as
nearly analogous as circumstances permit, to such an arrangement as would
be come to between co-ordinate legislatures federating for their mutual
advantages.
It has been necessary to recall the public declarations of statesmen of
the Victorian period in order to get a true conception of the devolution
movement in proper perspective. Among English statesmen of the front rank
we find Lord Beaconsfield, Lord Salisbury, the Duke of Devonshire, Mr.
Chamberlain and Mr. Gladstone all admitting the great fact that both for
British and for Irish purposes, some scheme of devolution was necessary.
It would be easy to multiply instances and to give quotations in
profusion, but I have said enough to show that for the last half century
statesmen have, for various reasons, advocated devolution. Upon some the
necessity has been impressed by deliberate obstruction in the House of
Commons, others have been actuated by a desire to relieve congestion and
to restore dignity and efficiency to the Commons House of Parliament. Upon
others again the conviction has been forced that, under the system created
by the Act of Union, Ireland cannot be well governed or contented; and a
few have foreseen that both for domestic and Imperial purposes
reconstruction on federal lines is desirable. Yet, in spite of this
remarkable expression of opinion, nothing has been done, though the
necessity for action has become more and more urgent with every passing
year, and though many of the objections felt in former days can no longer
be entertained. The doubts felt by the Duke of Devonshire as to the
fitness of the Irish people to exercise self-governing power have been
dispelled by experience of the working of the Act of 1898. The settlement
of the land question rightly deemed by Mr. Chamberlain an essential
preliminary to, or accompaniment of, political reform, has been half
accomplished under the Act of 1903, and can be fully accomplished by
reverting to the principles of that Act.
Many attempts have been made to reform procedure within the House of
Commons and all of them have proved inadequate. Owing to an actual
increase of business, and to the growing complexity of domestic affairs,
Parliament is over-burdened with work to a far greater extent to-day than
it was in the seventies and eighties. Since those days the idea of union
on federal lines in the Mother Country, as not only desirable in her
interest, but as also indicating the path to some larger form of union,
has become prevalent. It has become more and more evident that some scheme
of devolution is necessary to enable the Parliamentary machine to deal
with the great industrial questions that perplex us, and to give adequate
consideration to the problems of Imperial policy which press for
consideration. Under these circumstances it is indeed extraordinary that
this great question has not been settled in the only way by which, in my
humble opinion, it can be settled satisfactorily and permanently, namely,
by consent of both the great parties in the State; and it is passing
strange to see the leaders of one of the great parties, despite the
opinions of their predecessors in title, taking up an irreconcilable
attitude towards devolution of any kind. It would be most interesting, but
impossible, within the scope of this article to consider how far
contemporaneous events in Ireland, faulty tactics on the part of Irish
politicians, and the exigencies of party political warfare are
respectively chargeable with this lamentable legislative default. The fact
is the question has never been considered on its merits. The party system
is probably the principal offender, but impatience on the part of the
Irish people, vagueness in the demands put forward by their leaders,
inconvenient alliances, vacillating counsels, a short-sighted policy, and
mistaken tactics are much to blame.
It is a curious circumstance in the historical development of this policy,
that Devolutionists in going forward have come back to the standpoint of
the greatest leader the Tory party ever had. Speaking in the House of
Commons in 1844, Mr. Disraeli is reported in _Hansard_ as saying:
“I always thought that the greatest cause of misery in Ireland was
identity of institutions with England. It has become a great
historical aphorism that Ireland is to be the great difficulty of
the Minister. Now this is an opinion in which I never shared. I
never believed that Ireland would be a great difficulty, because I
felt certain that a Minister of great ability and of great power
would, when he found himself at the head of a great majority,
settle that question. What, then, is the duty of the English
Minister? To effect by his policy all those changes which a
revolution would do by force. That is the Irish question in its
integrity. It is quite evident that to effect this we must have an
Executive in Ireland which shall bear a much nearer relation to
the leading parties and characters of the country than it does at
present.”
These principles Mr. Disraeli declared to be “Tory principles, the
national principles of the democracy of England.” When a quarter of a
century later, and holding a most responsible position, he was challenged
in the House of Commons as to this statement of his views, he still
declared that: “in my historical conscience the sentiment of that speech
was right.”
PART III. CONTEMPORARY VIEWS
XIV.—Irish Nationalism And Liberal Principle. BY PROFESSOR L. T. HOBHOUSE
All through the nineteenth century the cause of subject nationalities was
a constant stimulus to British Liberalism. Successive generations hoped
and feared, wept and rejoiced with the rebels of Greece, of Italy, of
Hungary, of Poland, of the Balkans. Their successes and failures were
events of moment in the calendar of British Liberalism, for they were
recognised as essential parts of the democratic movement, and the
democratic cause was in that century looked upon as one all the world
over. Nor was this sentiment ineffective. The moral support of England was
in those days recognised as an asset to a cause. Individuals gave direct
and tangible assistance, and there were even times when diplomacy moved.
Nationalism, therefore, lay close to the heart of Liberalism. Yet there
was all the time one nationality whose claims were not so readily
understood as those of Greek or Italian, Pole or Bulgar. Ireland was
raising a cry, protesting against grievances, formulating demands, which
to impartial ears sounded very like those of other subject peoples. Here
it seemed was an oppressed nationality at the British Liberal’s own door,
with grievances which he could redress by his own efforts if he would.
Conscious—perhaps a little too conscious—of the rectitude of his
intentions, the British Liberal had some difficulty in seeing himself in
the light of an oppressor. But under Mr. Gladstone’s leadership he learned
his lesson in two stages. He began by learning that there were very real
grievances to be redressed, grievances resulting from the political
subordination of Ireland, in particular the grievances of the Church
Establishment and of the land system. But in the course of his remedial
efforts he learned further that though oppressive government may do much
to hold a nationality together, the redress of grievances does not
necessarily loosen the bonds of national unity. While the Government of
1880-85 still oscillated between concession and coercion, the more
adventurous minds began to realize that what they had preached for Italy,
Hungary, and Poland must in its due measure, and with all reasonable
regard to variation of circumstances, be offered to the Irish people. They
were ready for the second stage upon which Mr. Gladstone entered at the
end of 1885, and in which, after a brief and memorable struggle, he
carried with him the bulk of the Liberal Party. They had learned that the
solution of the Irish question lay not in repressing Irish nationality,
but in trusting it with the responsibility of self-government.
The Unionist leaders who defeated Mr. Gladstone had nevertheless learnt
from him the first of these two lessons. They acquired by degrees a
working knowledge of the material grievances of Ireland, and bit by bit
they dealt with them, confident that by so doing they would undermine the
foundations of the national demand. They reached the first stage of
Liberal education, but refused to advance beyond it. Time, however, has
declared against them. The twenty years of resolute government which Lord
Salisbury once demanded have gone by, broken only by the three years in
the ’nineties, when Liberals held office without legislative power.
Ireland is orderly, and, by comparison with the past, prosperous. But
Ireland is still Nationalist. The result is to leave the main arguments
for Home Rule standing, while several of the old arguments against it are
weakened or brought to naught. The Irish community is economically more
vigorous, and so far more capable of self-support than it was in 1886. It
is no longer a society which can be represented as honeycombed with
conspiracies, or given up to disorder. It is no longer in the grip of a
land system which necessitated an agrarian revolution, either as the
precursor or as the first act of a self-governing Parliament. It is no
longer so overtaxed that to maintain the fiscal balance with Great Britain
would be to impose a permanent tribute on the smaller and poorer island.
But it remains Nationalist, and the unsatisfied national sentiment of
Ireland remains not only a reproach to British Liberalism, but a flaw in
the fabric of our national security.
I dwell on the permanence of Irish nationalism, because in dealing with
nationality, we are confronted with one of those political forces which
may be very real and very stubborn, but which yet are neither measurable
in statistics nor easily compressed into the four corners of a rigid
definition. What precisely is a nationality, it may be asked, and why
should it be so much a matter of concern to Liberals? Liberalism is for
self-government, it is true, but, provided that all parts of a country or
of an empire are equally represented on a democratic franchise in the
governing assembly of the whole, what has the principle of liberty to say
further in the matter? Why should it be on the side of division or against
unity? It is not ever so. On the contrary, national jealousies, rival
patriotisms are constantly thwarting another branch of Liberal endeavour.
It must be frankly recognised that the development of nationality in
Europe is in large measure responsible for the modern recrudescence of
militarism. As a policy of peace and international goodwill, Liberalism
has to make some sacrifices, and take some risks in upholding nationality.
What does it gain in return? If its ideal is humanitarian, why must it
countenance the national idea, self-centred and intolerant as the idea too
often becomes?
The answer to this question is written in the history of the dealings of
Governments with subject nationalities, Irish or other. The primary object
of political Liberalism is to found Government on freedom. This end is not
compassed at a stroke by the simple method of establishing a well-oiled
representative machine. It involves, to deal with externals only, freedom
of speech, of writing, of meeting, of organisation. It involves the
security of personal rights as much against the Executive Government as
against any private aggression. But when a larger nation forcibly
incorporates a smaller one in its system it is easy to see the difficulty
of maintaining order on these lines. A free government in the full sense
of the term must be founded on the voluntary adhesion of the mass of the
people. This adhesion is not necessarily impaired by the conflicts of
interest or conviction which are the inevitable incidents of public life
in any community, and which compel now one section and now another to
submit to laws or acts of government which it resents. As long as each
class feels that its claims, even if overborne in the end, will not be
rejected without adequate understanding and fair consideration, there
exist the elements of government by consent. But a smaller nation forcibly
incorporated in a larger one does not feel this. The very constitution
which is the pride of its masters is the badge of its own subjection. It
may have equality of franchise, but its representatives are in a permanent
minority. By history, by sentiment, perhaps by religion, race, or
language, it has acquired differences of tone and habit. It regards public
questions from a different angle. Its emphasis is different, its
essentials are trifles to other people, and their essentials are its
trifles. Its problems, even when on the surface they appear the same, have
a different historic background, are interwoven with special associations,
complicated with local and peculiar sympathies and animosities. With these
nuances the smaller nation can never hope that the majority will deal,
because the majority can never understand them. Not only so but the
smaller people will have a pride, memory, and hope of its own. It may have
a larger patriotism if its self respect is first consulted, but as long as
its independent being is ignored its only collective ambition will be to
assert itself. Thus in the subject people the milk of social feeling is
turned to gall. All that leads a free people to respect law, to support
Government, to take pride in public prosperity, to sacrifice personal to
common interest, will work in this case only towards discord and civil
strife, and the best men become in a sense the worst citizens. At least
they become the most resolute opponents of the established order. The more
opposition develops, and this means the more life flourishes in the
subject people, the more the tension increases. Presently definite
obstructions arise in the machinery of Government and the ruling
democracy, however liberal in its original intentions, is driven into
“exceptional” legislation. Constitutional rights are curtailed. Legal
securities are suspended, freedom of speech is withheld. These
disabilities may either be confined to the disaffected people, in which
case the principle of equal rights disappears, or to save appearances as
to equality they are made universal, in which case general liberty is
impaired. In either event this original condition is set at naught. The
essentials of political liberty are violated. Wise and moderate
statesmanship may mitigate the mischief. Reactionary statesmanship may
inflame it. But the seeds of trouble will always be there as long as the
foreign body is embedded in the organic tissues.
But it may be asked, are we always to give way to sectional feeling?
History has interwoven many races and they must surely learn to live
together. What of French and British in Canada, or of British and Dutch in
South Africa? What again of Ulster? If Ireland is a nation, does the
nation include the Protestant half of Ulster or does it not? If yes, how
can any of our tests of unity stand? If not, how can we recognize Ireland
as one nation and not as two? Let us take these questions in turn, and let
us consider first the measure and importance to be attached to national
sentiment. We are dealing here, it has been admitted, with a force which
it is impossible to measure _a príorí_ by any external tests. We seem able
to judge it only by the event. If in fact Irish nationalism had yielded to
the redress of definite grievances, if it had been practically possible to
kill Home Rule by kindness, Unionist statesmanship would have been
justified. I do not say justified by success, for success is not a judge
giving decision by rules of equity. It would have been justified rather in
the sense that it would have been experimentally proved to have been
founded on a true interpretation of the case. The Unionist case—at its
best—was that Irish nationalism was a passing and superficial sentiment.
At its core were certain real grievances, but it was swollen into a mass
of imposing appearances, but of loose and flabby texture. The plan was to
remove the grievances with one hand, while with the other every ebullition
of sentiment into unruly speech or action was steadily repressed. Had the
plan succeeded it would have shown that Irish nationality was an illusion,
or at best a thin and insubstantial product of a passing historical phase.
In so far as it has failed it has shown that Irish nationality is a
reality, deep rooted in the past, and to be reckoned with permanently in
the future. In a word the test of nationality lies in history. If the life
of one people can be absorbed into that of another so that free Government
can proceed unimpeded, not violated by the habitual resort to “exceptional
legislation,” the union is justified by the event. If on the other hand
the demand for autonomy remains clear and persistent, through evil report
and good report, through coercion and concession, through adversity and
prosperity, in days of disorder when despair has reigned and in law
abiding times rendered calm by hope, there is the proof that nationality
is a vital principle, and a permanent force with which liberty must make
its account.
How is it then that by the gift of autonomy, time has succeeded in fusing
French and British peoples into the nation of Canada, and why do we see a
similar fusion proceeding between British and Dutch in South Africa? The
question arises partly out of the common confusion between race and
nationality. Race is a matter of physical kinship, and kinship is one of
the bonds that tend to unite people and at the same time in a measure to
separate them from others. But it is only one bond among many. Most modern
nations, our own conspicuously, are blends of many races, and are united
not so much by common ancestry as by the possession of a common country,
common interests, common traditions, a common mode of life and sentiment.
Further, where two or more races are intermixed, there is no means of
endowing them with independent Governments. The same writ must run over
the whole territory. Hence there are three possibilities. One is that one
race should hold the reins of power, as generally happens when white and
black live together. Another is that the country should be governed from
without, and this will generally mean that the administration leans on one
of the races within, and makes of it an “Ascendency” caste. The third is
that the two races should seek to live together and govern themselves with
mutual toleration. This is the experiment which has succeeded in Canada,
and is succeeding so far as the white races are concerned in South Africa,
and which is to be tried in Ireland. In proportion as it succeeds the two
races blend, and a new nationality is formed.
But still it may be asked, why should not Ulster claim to be a nation?
True, she is but a fragment of Ireland, but then Ireland is but a fragment
of the United Kingdom, and St. George’s Channel is not so very formidable
a dividing line as to make all the difference. Our whole argument, it may
be said, has rested on the rights of minorities, and Ulster is a minority.
Why should not Ulster also be a nation? This at once suggests the
counter-question, does Ulster claim to be a nation? Let us bear in mind
that the term Ulster is a mode of speech, and that what is meant by it for
these purposes is half Ulster, or the city of Belfast with some adjacent
counties. Does Belfast, we should more rightly ask, profess and call
itself a nation? Not if its desire is, what we have always understood it
to be, to remain directly subject to the British Parliament. It is in
fact, the focus of an old, but decayed Ascendency caste, and its desire is
to retain what it can save from the wreck of the Ascendency system. With
this demand Liberalism can have no sort of sympathy. If Belfast would
condescend to put her case with a little more moderation, and a little
allowance for the two sides of the question, it would be easier to meet
her views. As long as she declines to make her account with the fact that
the great majority of Ireland is Nationalist, and that British Liberalism
is resolved to do justice at last to nationalism, she rules herself out of
the discussion, and leaves it to British statesmen to act for her rather
than with her. Belfast is a Protestant and industrial centre in a land
which is predominantly Catholic and agricultural. On both counts she may
fear some inequality of treatment, and on both may legitimately receive
guarantees. On the major question, that of religion, every Home Rule
scheme has proposed ample guarantees and the present Bill does not fall
short under this head. The problem of financial and commercial interests
is more complex, but it is difficult to see how an Irish Parliament,
responsible for the financial soundness of the country, could do anything
to cripple the industries of Belfast without being fully aware that in so
doing it would be killing the goose that lays the golden eggs. The
discussion of this question, however, I must leave to those who are
dealing with the financial provisions of the Bill. On the main point we
may ask whether, if the Bill is to pass, Belfast will deliberately and
persistently demand to be left out of its scope, and separated from
Ireland in the sense and degree in which Ireland will be separated from
the direct control of Great Britain. If such a demand is put forward not
merely in order to wreck Home Rule, but as a substantive proposal
seriously intended, it will constitute a new fact. Belfast will then be,
indeed, claiming recognition as a miniature nationality, and the claim
will be fairly weighed. At present it can only be regarded as highly
improbable that such a claim should be maintained or even put forward
except in a fighting mood. That Belfast should sustain her opposition to
the whole Bill is perfectly natural, but given that there is to be Home
Rule as one of the fixed conditions of a settlement, her natural position
is that of a centre and rallying point for the dispersed forces of Irish
Protestantism. That this is her true function in the Irish Parliament,
Belfast must be as well aware as she is that her influence in that
Parliament will be more than proportionate to her numerical strength.
We have spoken of nationality as a centrifugal force, as one of the
influences tending to division. But there is another side to the question.
When a nation obtains self-government it undertakes a new responsibility.
It must keep its own peace, balance its own finances, have regard to its
own common economic interests. This common responsibility does not make
for division. It makes for unity. It enforces a sober regard for the
claims of each part. It dictates a measure of mutual consideration which
is not developed as long as one party within the country is taught to lean
upon an outside power. In the past history of Ireland each party has alike
been taught constantly to look to Westminster for its wants, to
Westminster for redress of grievances, to Westminster perhaps for
vengeance on its foes or at lowest for the means of keeping them in order.
This is not the atmosphere in which mutual toleration grows. When Irishmen
understand that they must go of themselves unaided and uncontrolled from
without they will learn like other men that they must pull together if
they are to keep off the rocks. The national element will have the
majority in the Irish Parliament, and the first object of this element
will be to make Home Rule a success. That they can do only by securing the
co-operation, even if it be the grudging and unadmitted co-operation, of
the opposition. But Belfast is not bound to content herself with these
general probabilities. She has only to formulate intelligible demands
consistent with the establishment of a Dublin Parliament to be assured of
a respectful and considerate hearing. If she would be content to rest her
case on the same basis as that of Irish nationalism itself, recognising
that nationalism must have its rights and submitting only that she in turn
is a lesser nation within a nation, it would be possible to deal with her.
As long as she stands on her own claims she rules herself out of the
discussion.
There are many who regard the recognition of nationality as at best a
regrettable necessity. They lay stress on those centrifugal tendencies
that we have admitted and they feel that the greater need of mankind is
for unity. But the unity which they desire can only come through the
development of life in many different centres and with luxuriant
divergencies of character. The doctrine of Mazzini that every nation had
its own peculiar function to fulfil in the life of humanity was not pure
fancy. It is easy to recognise that the leading modern nations have each,
in fact, contributed something distinctive, something that would have been
blurred and dulled if all had been of one speech and under one rule.
Division has meant unrest, friction, war, and suffering. But it has been a
necessary condition of collective vitality. Self-respect and
self-confidence are necessary to a people that are to do great things, and
these they cannot enjoy to the full so long as they are conscious of a
mastery that galls their pride. Ireland has contributed to our literature
her peculiar strain of humour and of romance, tinged with the melancholy
of her historic ill-fortune. The graver tone and gentler view she will
never lose, for they belong to a people who will always have behind them
the memory of the centuries of that undeserved suffering which opens the
eyes of men to the nature of the human tragedy. But the distinctive Irish
quality may henceforward be shot with a brighter thread catching the light
from her assured future as a nation. As a nation she has her part to play
in the English-speaking Commonwealth, questioning the successful
practicality of a dominant people with the irony, and tempering its prose
with the romance born in the centuries of her probation in the valley of
the shadow.
XV.—The Imperial Parliament
(I) The State Of Parliamentary Business. BY CECIL HARMSWORTH, M.P.
There is one argument for conferring self-government on the people of
Ireland that appeals with irresistible force to many ordinary members of
Imperial Parliament. This is the urgent necessity for relieving Imperial
Parliament of “provincial” business and setting it free to devote its best
energies to the ever-increasing legislative and administrative needs of
the empire.
Every year the amount of business that falls to be transacted in the House
of Commons grows in volume. Every year fresh proofs are afforded that the
legislative machinery of the House of Commons is not only unequal to the
strain imposed by the growing volume of business, but that it is incapable
even of dealing effectively with the affairs that have always been
regarded as coming within its special province. For instance, the House of
Commons has practically lost all control over the details of finance. It
is true that a fairly generous allowance of Parliamentary time is allotted
to the Estimates, but the House rarely, if ever, comes to close grips with
the nation’s balance sheet, or indeed with the details of any particular
vote. Yet a vigilant supervision over finance is one of the primary
functions of the House of Commons.
How far the recently established Select Committee on Estimates will be
able to assist in promoting national economy remains to be seen. The
creation of such a body has not met with universal approval in the House
itself. As in the case of all parliamentary Committees, no matter how
influential their _personnel_, the House as a whole may not be found
willing to accept the decisions of the new Select Committee as
authoritative.
In the sphere of Bill legislation, the condition of things is even worse.
Notwithstanding the desperate shifts which have been resorted to in recent
years to secure the dispatch of business, we are confronted in every
succeeding session with greater congestion in the House of Commons. Big
Bills are hustled through with the aid of every undesirable expedient
known to parliamentary procedure, and little Bills in pathetic shoals are
massacred at the end of each session. The plain fact is that we have not
sufficient time in which to do anything properly. No matter what strain we
impose on the physical endurance of Members, no matter how far we invade
the undoubted privileges of the House of Commons as a deliberative
assembly, Parliament is less and less able to fulfil its manifold duties
as the paramount legislature in a world-wide state. The damage to local
interests is scarcely less serious. Irish finance, for instance, and Irish
legislation suffer from the disability of Imperial Parliament to give them
due consideration.
Let it not be supposed that the House of Commons is unconscious of its own
demerits as a legislative machine. It is nearly sixty years since Sir John
Pakington’s Committee was appointed to consider “whether by any alteration
in the forms and proceedings of this House, the dispatch of public
business would be more effectually promoted.” Committees with similar
references were set up in 1861, in 1878, and in 1886. As a result of these
inquiries two Standing Committees were established at the instance of Mr.
W. H. Smith in 1888. The relegation of measures of the second rank to the
two Standing Committees was expected to lighten the legislative burdens of
the House of Commons very considerably, and this result was in some
measure achieved. But the problem of congestion was so far from being
solved that it was thought necessary to appoint yet another Committee (Sir
Henry Fowler’s) in 1906. This Committee recommended the setting up of four
Standing Committees, and it is under this system that we are now working.
With considerable diffidence I advance the opinion that an even larger use
of Standing Committees might be made than has yet been attempted. Part II.
of the National Insurance Bill was sent “upstairs,” and the result amply
justified what was regarded by cautious Parliamentarians as a daring
experiment. But this part of the Insurance Bill was in a large degree
uncontroversial. The House of Commons is jealous, and naturally jealous,
of its rights over controversial measures of the first class, and has
never yet shown any readiness to accept as conclusive the decisions of
Standing Committees. Nor should it be forgotten that attendance on a
Standing Committee imposes a severe strain on members who are also keenly
interested in the business of the House itself. By the time Mr. Speaker
takes the chair at a quarter to three o’clock, the members of such
Committees have often completed a very fair day’s work.
Meanwhile, other and more questionable expedients for facilitating the
dispatch of business were coming into general use. It is to Mr. Joseph
Ronayne, a member of the Irish Parliamentary Party in the ’seventies of
last century, that we owe the policy of organised and scientific
obstruction in the House of Commons, and, as a consequence, the drastic
use of the closure. Mr. Ronayne was a back-bench member of the Irish
Party, of unobtrusive manners but of settled opinions. He was profoundly
dissatisfied with the unaggressive tactics of Mr. Isaac Butt, the then
leader of the Irish Party.
“We will never make any impression on the House,” he said, “until
we interfere in English business. At present Englishmen manage
their own affairs in their own way, without any interference from
us. Then, when we want to get our business through, they stop us.
We ought to show them that two can play at this game of
obstruction. Let us interfere in English legislation; let us show
them that if we are not strong enough to get our own work done, we
are strong enough to prevent them from getting theirs.”(159)
Mr. Ronayne found in Mr. Joseph Gillis Biggar an apt pupil. Mr. Biggar
used to say: “The English stop our Bills. Why don’t we stop their Bills?
That’s the thing to do. No Irish Bills; but stop English Bills. No
legislation; that’s the policy, sir, that’s the policy. Butt’s a fool, too
gentlemanly; we’re all too gentlemanly.” Mr. Biggar’s oratory is happily
now only a tradition. It was not good oratory of any kind, but it effected
its purpose. More skilful exponents of the art of obstruction have
appeared since Mr. Biggar’s day, but none more successful. The expedient
may have been justifiable in the case of a small minority struggling
unavailingly against an overwhelming and indifferent majority. It is quite
true that during the mild reign of Mr. Butt the British political parties
treated legislative proposals emanating from the Irish Parliamentary Party
with scant courtesy. It is equally true that obstruction in the House of
Commons proved a potent incentive to the more careful consideration of
Irish claims. We have travelled far since those days, but obstruction
remains as one of the most formidable weapons in the armoury of an
opposition. The British political parties have, when in opposition, made
full use of a device that Mr. Butt regarded as “undignified, useless, and
mischievous.” And not only is obstruction with us, but its hateful if
necessary corollary, the closure, has tended every year to become more
oppressive. The parliamentary historian of the future will note that it
was on June 10th, 1887, that “closure by guillotine,” that monstrous
variant of an accursed type, was first proposed in the House of Commons. A
few days later the guillotine fell on several of the most important
clauses of a new Crimes Bill. So closely associated with Ireland are the
most recent and most detrimental changes in the procedure that governs the
debates in our Imperial Parliament!
Obstruction or no obstruction, closure by guillotine or by compartments
has come to stay as long as our Parliament attempts the otherwise
impossible task of legislating for several provinces, and an empire at the
same time. Nowadays almost every great Bill is subjected sooner or later
to the guillotine. Let us see what this means. A debate in Committee, let
us say, has been in progress for some days or weeks. Discussion has been
free, and only occasionally, perhaps, has the ordinary form of closure
been exercised. A bare half dozen clauses have been disposed of. There
remain four or five score more clauses and a motley group of schedules. It
becomes obvious that unless something is done to speed up the machinery,
the Bill will never get through the House. Then it is that the leader of
the House braces himself to his most unwelcome task, and, rising in his
place, proposes a rigid time-table for the discussion of the remaining
clauses and schedules. A certain number of days are allotted, and to each
portion of time is allotted a section of the Bill. Thus, a whole
Parliamentary day may be allotted to three clauses. The whole of this day,
perhaps, is spent in debating the first line of the first of the three
clauses. However this may be, the guillotine falls with remorseless
severity at the end of the allotted day, and only Government amendments to
the undiscussed parts of the three clauses are taken. Could anything be
more clumsy? Was it possible for the ingenuity of man to invent a less
businesslike remedy for the congestion of business in Parliament? Indeed,
the absurdity of the system is universally acknowledged. I know of no more
distressing spectacle than that of the leader of the House of Commons
exerting himself to excuse a policy that he, in common with all who
reverence the House of Commons, holds in detestation. On such occasions as
this, the arguments advanced for what is confessedly a rude invasion of
the rights of free speech are of a set pattern. It is urged that the
debate has now been in progress for so many days or weeks, and that little
advance has been made. Regret is expressed that resort should be had to
such an unpopular device as the guillotine. But by what other means, it is
asked, is a Government to carry controversial measures? After all, the
time-table proposed is a generous one, having regard to all the
circumstances of the case, and is certainly more generous than that
allowed by the party opposite on such and such an occasion in the past.
The leader of the Opposition, in rising, lays his hand on his heart and
calls the House to witness that if on former occasions he has made use of
the guillotine, he has done so far less frequently than the head of the
present administration, and with an entire absence of the levity that
marks the present proceedings. The guillotine resolution is carried. There
are ineffectual ebullitions of wrath on the opposition side of the House,
and there are sinking hearts on the Ministerial Benches. On every such
occasion it is felt in all parts of the House that a deadly blow has been
aimed at the dignity and the prestige of Parliament.
But the House of Commons is meant to be a deliberative assembly! It holds
still the highest place among the democratic assemblies of the world, and
its rules and forms and customs have been adopted with unquestioning
veneration, wherever democratic communities have set up legislating for
themselves. In point of _personnel_, recent Parliaments have shown no
falling off from the standards of other days. In manners, in public
spirit, in devotion to parliamentary duty, and in the range of their
knowledge and experience, the members of the present Parliament compare
most favourably with their predecessors in any Parliament in our history.
If they are gagged and closured and guillotined, it is not because their
speeches would be unworthy of the place or of the occasion. The simple
reason is that there is no time for them. The mother of Parliaments is
trying to do the work of four or five Parliaments, and is signally failing
in the attempt.
Let this be noted. Though the outcry against the guillotine closure,
whenever it is proposed to be exercised, is loudest on the opposition side
of the House, the guillotine operates just as much to the disadvantage of
private members on the Government side. They are expected to support the
Government Bill in broad outline, but they are under no obligation to
support it in every detail. They entertain, and are entitled to entertain,
their own views as to points of detail, and are no more willing than
members opposite that their pet amendments should be sacrificed
arbitrarily at the end of an allotted day. Indeed, since they are, _ex
hypothesi_, devoted to the main principles of the Bill, they are likely to
be even more solicitous than members of the Opposition that the Bill
should be as perfect in detail as in its general scope. Little wonder that
under the operation of the guillotine, private Ministerial members tend
more and more to become passive and, in the long run, indifferent
spectators of the drama that is enacted on the floor of the House when a
great Bill is going through, and it is in this respect and not in any
other, I think, that modern Parliaments are inferior to others.
There are other aspects of the question that might be dwelt on at some
length, if this were the proper occasion. Since it is recognised in all
parts of the House that a great measure is not and cannot be adequately
discussed under the guillotine closure, a dangerous practice has grown up
of leaving difficult matters to be decided by Government departments or by
new authorities set up under the Act. Under the National Insurance Act,
for instance, the Commissioners are invested for certain purposes with all
the legislative prerogatives of the three estates of the realm! I must
leave that matter to the constitutional authorities. I am concerned for
the moment merely to show that the guillotine closure is a clumsy,
unbusinesslike, and dangerous expedient that cannot be regarded as having
solved in any satisfactory degree the eternal problem of congestion in a
Parliament that attempts to cope at the same time with the local affairs
of three or four provinces, and with the affairs of an empire.
Relief might doubtless be found in the more frequent use of what is known
as the “kangaroo” closure. This method of dealing with business in
Committee was first regularized in 1908. Under this system, power is given
to the Chairman to select such Amendments as he believes to be really
important, to the exclusion of others. The burden of responsibility thus
thrown on the Chair is felt to be enormous, and it is chiefly on this
account that the kangaroo closure has been very sparingly exercised.
I say that the setting up of four Standing Committees, and the institution
of the guillotine closure have so far failed to relieve appreciably the
pressure of business in the House of Commons. Another method has been
tried that might reasonably have been expected to produce more fruitful
results. I refer to the prolongation of the session of Parliament. In 1906
we had an autumn sitting. In 1907 we sat until August 28th. In 1908 we had
an autumn sitting. In 1909 we sat for practically the whole year. The
session of 1910 was agreeably diversified by a strenuously contested
General Election at either end of it. In 1911 we had yet another autumn
sitting, and this year we are threatened with a continuous session
extending from February until Christmas time. True enough, a good part of
the work of these sessions was wasted by the action of a House of Lords
which has since lost some of its powers for obstructive mischief, but it
will be observed that of the first class measures destroyed by the Lords,
only two—the Education Bill (in a different form), and the Scotch Small
Holders Bill—have subsequently made considerable demands on the attention
of the House of Commons. The time gained by extending the sittings of
these several Parliaments has been chiefly wanted for new legislation.
Even if the House of Lords had found it convenient to pass the Liberal
measures which it rejected, the pressure of business in the House of
Commons must have necessitated the resort to autumn sittings in two or
three of the years under consideration. Now, it is a commonplace that
autumn sittings are permissible only in very exceptional circumstances.
From the point of view of all Members of Parliament, autumn sittings are
an unqualified disadvantage. Members, like other folk, want their
holidays, and, unlike other folk, have constituencies to look after.
Ministers of the Crown who are members of the House of Commons stand in
even greater need of holidays than private members, and are not less under
obligation to cultivate their constituencies. In addition, they need
leisure for the preparation of the great Government measures that are to
figure in the King’s Speech, Departmental Bills for the ensuing session,
and generally for the overhauling of the work of their departments. It is
astonishing that the work of the great administrative departments should
have been done so well in recent years when regard is had to the extreme
pressure under which Ministers have been working. If Sir H.
Campbell-Bannerman and Mr. Asquith had not had at their command an
abundance of administrative talent of a high quality, there must have been
during the last six years many cases of failure in the management of the
important Parliamentary Offices of State. One of the chief functions of a
Parliamentary Minister in charge of a department is the infusion of new
ideas, the re-assembling and adaptation of old machinery, the bringing up
to date of an organisation that may have served its purpose well in the
past but is no longer adequate to the enlarged requirements of modern
times. For such work as this there must be time for cool deliberation. It
is scarcely possible for the most capable Minister to devise schemes of
administrative reform amidst the excited rumours of the lobbies and the
innumerable distractions of life in the House of Commons. Less responsible
members of the House of Commons than Ministers find that it is well-nigh
impossible to think clearly during the session of Parliament.
Other methods have been proposed for saving time in an overburdened House
of Commons. There is the proposal that measures that have reached a
certain incomplete stage in one session should be revived at the same
stage in the next session of the same Parliament. A Select Committee of
unusual authority discussed this matter in 1890. Among the members of the
Committee were Mr. Gladstone, Mr. Balfour, Mr. Chamberlain, Mr. John
Morley, Mr. Goschen, Sir William Harcourt, the Marquis of Hartington, Mr.
Dillon, Sir Edward Clarke, Mr. T. W. Russell, Mr. Labouchere, and Mr.
Sexton. Proposals for abridging the procedure on partly considered Bills
had been mooted in 1848, in 1861, and again in 1869, but the objects in
view of the earlier Committees entirely differed from those of the
Committee of 1890. The proposal emanated from the House of Lords, and the
original design was to give the Upper House power to hang up Bills coming
from the House of Commons. The Lords complained, as they have often
complained since, that Bills were sent up to them at a period of the
session too late to admit of the exercise of the Lords’ rights of revision
and amendment. They urged, too, and with some force, that Bills were
frequently sent up to them which had not been adequately discussed in the
lower House. They desired, therefore, to possess themselves of the power
to hold over such Bills to another session. Needless to say, such a
proposal as this excited fierce opposition in the House of Commons, and
the deliberations of 1848, 1861, and 1869 came to nothing. The Committee
of 1890 set out with wholly different intentions. Its object was merely to
obviate reiterated arguments in the House of Commons on the same subjects
and to save the time of the House. Thanks in a large measure to Mr.
Balfour’s advocacy the Committee reported that the carrying over of Bills
should become the practice of the House, as it is indeed the practice of
almost every Parliament in Europe. A formidable minority, however, led by
Mr. Gladstone, reported against the proposal, and nothing has yet been
done to give effect to the wishes of the majority. To this day the
“massacre of the innocents” is a melancholy feature of our proceedings at
the end of a session. I doubt myself whether “carrying over” will ever be
adopted as a part of the established and regular practice of the House of
Commons. Ministers look with cold disfavour on the proposal. They are
generally suspicious of private members’ little Bills, and private members
themselves are not ordinarily enthusiastic about the legislative bantlings
of other private members.
One other remedy has been suggested for hastening the dispatch of business
in the House of Commons—the limitation of speeches. For every member who
made speeches in the House of Commons half a century ago fifty make
speeches now. It is not, I think, that we are more loquacious than our
ancestors or more greedy of the ready publicity that is accorded to any
sort of speech in Parliament. Many interests are now represented in
Parliament that were not directly represented at all in the earlier days,
and the problems of a more numerous population and of a more complex
civilisation make corresponding demands on the time of the House of
Commons. The serious man who represents these great new interests in the
House of Commons never consciously squanders the time of the House in
unnecessary speech. No doubt the prevailing fashion of oratory is marked
by diffuseness and lack of discipline, but it is to the comparatively
modern scandal of deliberate obstruction by speech that we owe the
guillotine and all its attendant evils. From time to time there has been
earnest debate as to whether a time limit to speeches should be fixed.
That any such policy is difficult of achievement is proved by the fact
that even the existing Standing Order against irrelevance and tedious
repetition has fallen into almost complete abeyance.
What is the ultimate remedy for the congestion of business in the House of
Commons? Who can doubt that it is the delegation of provincial business to
provincial assemblies? There has been, I say, no lack of expedients. The
setting up of four Grand Committees, the institution of the guillotine as
a regular feature of House of Commons procedure in regard to every
first-class measure, the frequent resort to autumn sittings—these methods
have been tried and found wanting. Little prospect of relief is afforded
by any projected limitation of speeches or by the carrying over of Bills.
Meanwhile, as we have seen, the legitimate claims on the attention of
Parliament grow with the needs of a growing population and of an expanding
empire. In part it is the problem of new wine in old bottles. Our
Parliament was not constructed for its present purposes. Originally it was
the legislature for England alone. The provincial affairs of Scotland were
first imposed on it, and then those of Ireland. Concurrently, the
management of an empire, as varied in its legislative and administrative
requirements as the various climates it enjoys, has been added to our
responsibilities. You may if you like regard our present House of Commons
as an Imperial Legislature stooping from time to time to the consideration
of provincial business, or as a provincial Parliament rising in its
moments of inspiration to the discharge of high Imperial duties. The same
Parliament that has to decide to-day some small matter of purely local
Irish or Scottish concern must settle a national strike to-morrow, approve
the naval strategy of the Empire, or frame the constitution for a people.
To the executive that is responsible to the same Parliament are entrusted
all the tremendous issues of peace and war. It is a supreme testimony to
the genius of the British peoples for government that we have voyaged so
far without shipwreck everywhere except in the region of Irish affairs.
By all admissions we have made a mess of Ireland. With singular and
unwonted perverseness we have refused for more than a hundred years to
apply to Ireland the principles of self-government that have justified
their application in every province of the Empire that is mainly inhabited
by people of our own race. We have risked and we have incurred the
disaffection of the Irish themselves; we have imposed on them and on
ourselves untold suffering and expense; we have imperilled the whole
fabric of our Parliamentary institutions.
It is this last aspect of the problem to which earnest consideration is
invited in these few pages. The efficiency of Imperial Parliament is a
matter of Imperial concern. By no other means than by maintaining Imperial
Parliament at the highest pitch of efficiency can we be assured of good
government throughout the empire. I do not myself shrink from any of the
logical consequences of the line of argument I have adopted. A truly
Imperial Parliament representing England, Ireland and Scotland and, it may
be, each of the more important Dependencies of the Crown—that is the goal
towards which we should press. But the Irish claim, so far as the claims
of the United Kingdom are concerned, was first presented, is most urgent,
and must first be satisfied. If we could but rid our minds of party bias,
Home Rule for Ireland would be universally regarded as the first step
forward in the direction of Imperial efficiency. It is unquestionably a
condition precedent to the re-establishment of our control over our own
legislative machine.
(II) The Tendency Towards Legislative Disintegration. A Review Of The
Statute Book. BY H. DE R. WALKER
The Act of Union between Great Britain and Ireland was the end of a
definite epoch of political concentration. England, Scotland, and Ireland
had at last been brought under a single Parliament, with equal and
complete legislative authority over the whole of the three Kingdoms. But
Union was not accompanied by uniformity, especially in the case of
Ireland. Ireland, when joined in a legislative union with Great Britain,
was in fact left in possession of separate Administrative, Financial and
Judicial institutions. With the separate judicial system I am not further
concerned, but at a time when the grant of extended self-government to
Ireland is under consideration, I contend that it is of great utility to
observe how far Irish Administration and Irish Finance are actually
distinct and separate at the present time. Moreover, whatever may have
been the intention of the statesmen of the period of the Union, it has
also been found to be necessary, owing to the diversity of the
institutions, to pass in the Parliament of the United Kingdom, a large
number of statutes solely applicable to Ireland. I do not assume that what
is now separate should in every case be transferred to the new Irish
Authority, nor that what is now done in common should not be so
transferred; but I do contend that the existing differentiation should
largely guide us in connection with the forthcoming proposals. On the
other side, our opponents might of course urge that, as we have already
got separate laws and separate administration for Ireland, we obtain under
existing arrangements all the diversity that is required, and that we have
herein an argument against Home Rule rather than in its favour.
We must, therefore, carry the matter a step further. We may say that the
separate laws and separate administration, while not conclusive as to the
need for Home Rule, will be found to provide a basis for its inception if
it can be shown on other grounds to be desirable; but, as it is not my
intention to enter upon the general merits or demerits of Home Rule, I
pass on to submit the practical consideration that the separate laws and
the separate administration for Ireland, as worked in connection with a
single Parliament, not only work badly in themselves, but are prejudicial
to the orderly development of Parliamentary government. This is my case,
and if I can prove it, we should either do away with these separate
arrangements or cease to work them in connection with a single Parliament.
But it will be easy to prove further that the separate arrangements cannot
now be consolidated. There is a continuous tendency to accentuate them in
accordance with the requirements of the situation. We shall, therefore, be
driven to the conclusion that we must have recourse to a separate
Parliament for Ireland in order to be able to work these separate
arrangements in a satisfactory manner.
In order to substantiate these contentions, I shall discuss the existing
position as regards Irish Legislation, at the same time giving some
attention to Finance and Administration in their legislative aspects. The
uniformity in Anglo-Irish Finances which has been developed during the
nineteenth century is still qualified by a certain differentiation.
Separate departments of administration involve separate estimates of
expenditure; and separate laws may involve separate grants of money.
The authors of the Act of Union did not attempt to establish uniformity
between Great Britain and Ireland in the matter of either administration
or finance, but they followed the precedent of the Union between England
and Scotland in the concentration of all legislative powers in a single
body, the Parliament of the United Kingdom of Great Britain and Ireland.
But Union did not necessarily mean uniformity, and the united Parliament
found itself at once compelled to pass separate and different Acts for the
several portions of the United Kingdom.
In this branch of our subject it will be convenient not to confine our
attention to the separate Irish laws, but, since many laws are also passed
separately for England and for Scotland, to take a wider view and consider
how far Parliament legislates in common for the whole of the United
Kingdom, and how far separately for one or more of its component parts.
And it follows therefrom that any conclusions that we may form as to the
delegation of legislative powers are likely to apply in kind if not in
degree to England and Scotland as to Ireland. In the administrative
sphere, of course, the position is by no means the same as between the
three countries. Scotland has at present no important central department
at Edinburgh other than its Local Government Board.
It was largely owing to the maintenance under the Union of the separate
administration in Ireland, combined with the retention during the first
sixteen years of the separate exchequers, that Parliament was obliged to
legislate separately for the different portions of the United Kingdom.
These were the years of the Napoleonic wars, when very heavy taxation was
imposed; and, not only was a separate Act passed, according to the custom
of the time, for each article that was to be taxed, but this taxation was,
on account of the separate exchequers, imposed by separate Acts for Great
Britain and for Ireland. In these circumstances it is not surprising to
find that the most numerous Statutes of the first twenty years of the
century were those whose application was confined to Great Britain or to
Ireland, and that they considerably exceeded in number those which applied
to the whole of the United Kingdom or to England alone. After the
amalgamation of the exchequers in 1817, the annual average of Statutes
applying to Great Britain dropped at once from thirty-five to seven, and
gradually decreased still further, since most of the financial measures
were passed thenceforward for the whole of the United Kingdom alike. But
Ireland, in spite of the financial amalgamation, continued to call for a
large amount of separate legislation, and the annual average of Statutes
applying solely to Ireland dropped no more than from thirty-one in the
decade 1811-20, to nineteen in the following decade, at which point it
remained fairly constant during the greatest part of the nineteenth
century. Throughout this period, the average annual number of what I call
“United Kingdom” Statutes ranged between forty-nine in the decade 1861-70,
and thirty-two in 1881-90, and of Statutes that applied solely to England
between fifty-eight in 1881-90, and twenty-three in 1801-10. It should be
added that the numbers are those of the Public Acts alone, and they would
be much higher, particularly in the later years, if the Local and Private
Acts were included in the enumeration. But the public Statutes are
obviously alone relevant in any enquiry as to the extent to which the
Union of the Parliaments has led to legislative uniformity, and it is very
significant that, even upon these public matters, Parliament has been
unable at any time since the Act of Union, to avoid the necessity for a
large amount of separate legislation for Ireland.
The figures up to 1890 are taken from Mr. T. A. Spalding’s “Federation and
Empire,” which contains many interesting particulars, and I have worked
out the figures for the two succeeding decades, but not exactly on the
same basis. Mr. Spalding includes the Provisional Order Confirmation Acts
which were not distinguished from other Public Acts until the middle of
last century, but I omit them as not partaking of the character of general
legislation, and the number of separate Acts given for England, Scotland
and Ireland is considerably reduced by this omission.
In my first table, which gives the total, not the annual average, I divide
the Public General Acts into two wide categories: those, which I term
“United Kingdom” Statutes, that apply to the Dominions, the Colonies, or
India, as well as those which apply to the United Kingdom as a whole; and
those, which I term “State” Statutes, that apply to England, Scotland or
Ireland alone, to any two of these three countries, or, in a very few
cases, only to the Channel Islands or the Isle of Man.
Public General Acts, 1891-1910.
United State. Total.
Kingdom.
1891-1900 295 336 631
1901-1910 252 206 458
Total 547 542 1,089
It will be noticed that there is a curious approximation between the
numbers in the two columns, and nearly half the legislative output of
Parliament thus takes a form which is at any rate contrary to the spirit
of the Act of Union. Excluding financial measures during the few years
when the exchequers of Great Britain and Ireland continued to be separate,
it would have been anticipated that the legislation under the Union would
be uniform, or at least tend to uniformity, and it is very significant
that, after more than a hundred years, so much separate legislation should
still be required for the several portions of the United Kingdom. But I
will postpone any further comments on this situation until I have shown
how the “State” Acts are divided up as between the three countries and
what are the principal subjects with which they deal.
From my classification of the “State” Acts according to countries, I have
omitted the twenty-one Acts which apply solely to the Channel Islands and
the Isle of Man, one Scottish and Irish Act, and one Welsh Act; and, as to
Wales, I may take the opportunity to say that I do not prejudge its claim
to separate treatment in any measure of Home Rule all round, but that I
shall not specifically mention Wales in this paper, partly in order to
avoid the repeated enumeration of the four countries in the place of
England, Scotland and Ireland, partly because the claim of the
Principality, so far as it may be based on laws and administration that
are distinct from those of England, is exceedingly weak. Education,
however, is already separately administered, separate Insurance
Commissioners have been appointed for Wales, and an important Welsh
Intermediate Education Act was passed in 1889, just before the period that
is covered by the following table.
“State” ACTS, 1891-1910.
England. Scotland. Ireland. Great England Total.
Britain. and
Ireland.
1891-1900 140 74 72 17 21 324
1901-1910 78 37 57 14 9 195
Total 218 111 129 31 30 519
The above table shows, so far as mere numbers are concerned, how far the
pressure upon the Parliament of the United Kingdom would be removed if it
were relieved of the responsibility for English, Scottish and Irish
legislation, respectively; and, in view of the relative population of the
three countries, we cannot be surprised at the conclusion to be drawn from
the figures that the main cause of the legislative congestion lies in the
fact that the laws relating exclusively to England and those applying to
the United Kingdom as a whole, have to be passed by one and the same
Parliament. We should, then, seek for some form of delegation which would
remove English and Scottish, as well as Irish legislation, from the
purview of the existing Parliament; but, in the meanwhile, the figures
show that the removal of the Irish business would relieve matters
appreciably, and it is probable, without counting the Home Rule Bills,
which should not be regarded as exclusively Irish measures, that the Irish
legislative proposals take more of the time of the House of Commons than
would be represented by the proportion which they bear to the total
legislative output.
I now pass to the subject-matter of the Acts of Parliament; and I again
turn to Mr. Spalding’s book. He has made a most interesting analysis of
the statutes up to the year 1890, from which it appears that Parliament
had been unable to legislate by Acts applying over the whole of the United
Kingdom whenever it had had to deal with the administration of justice and
the laws relating to any of the following subjects: the tenure and
occupation of land; the holding, transfer, and devolution of property
(including land); the Church; the poor; local government, rural and urban;
roads, railways, and canals; and education.(160) These are the subjects,
that is to say, on which Parliament had been obliged to pass separate laws
for the different parts of the United Kingdom, and the study of this
centrifugal tendency seemed to me so important that I have continued (on
the next page) the analysis for the following twenty years.
The first impression derived from this table is that the division between
the subjects on which the legislation covers the whole of the United
Kingdom, and those on which it has a narrower application, is much the
same as during the earlier period. Parliament continues to legislate
separately for the “States” in the matters in which it has been its
practice so to do, and this in itself is a very significant consideration
in view of the strong contrary inducement resulting from the growing
congestion of Parliamentary business. Thus, taking the last three headings
on the list, we see that in regard to Education, the Poor, and the Church,
all the legislation during the twenty years was of a “State” character,
while the very numerous Acts relating to Local Administration were in
almost every instance equally limited in their application. When we pass
to Law and Justice, and to Land and Agriculture, we find that the “State”
predominance is not quite so marked, but even so, there were three times
as many “State” as “United Kingdom” laws, and we conclude that, though the
pressure of Parliamentary business is against it, “State” legislation
continues to hold the field over a wide and varied range of legislative
activity.
Public General Acts.—United Kingdom.(161)
Date. 1891-5 1896-1900 1901-5 1906-10 Total
Imperial. 24 12 13 15 64
Army and 15 25 18 14 72
Navy.
Conditions 10 9 5 10 34
of
Employment.
Benefit. 6 5 2 5 18
Finance. 37 30 29 28 124
General 40 21 20 31 112
Administration.
Trade and 6 12 9 18 45
Commerce.
Traffic. 4 1 3 8
Law and 16 4 5 14 39
Justice.
Land and 7 4 1 8 20
Agriculture
Local 3 4 1 3 11
Administration
Education
Poor Law
Church
Total 168 127 106 146 547
States (England, Scotland And Ireland, Separately, And Combinations Of Any
Two Of Them).
Date. 1891-5 1896-1900 1901-5 1906-10 Total
Imperial.
Army and
Navy.
Conditions
of
Employment.
Benefit.
Finance. 3 10 4 17
General 7 10 8 7 32
Administration.
Trade and 9 6 9 12 36
Commerce.
Traffic. 4 4 8
Law and 40 43 9 31 123
Justice.
Land and 23 11 7 22 63
Agriculture.
Local 49 55 23 34 161
Administration.
Education. 9 10 11 10 40
Poor Law. 4 15 4 2 25
Church. 3 10 2 1 16
Total. 151 174 77 119 521
At the other end of the scale are the subjects on which Parliament is
always able to legislate for the whole of the United Kingdom by a single
Statute. The Imperial Laws are those which are promoted by the Foreign,
Colonial, and India Offices, and concern our relations with Foreign Powers
or with some portion of the British Empire. The Army and Navy laws include
not only the Naval and Military Works Acts, but any Acts dealing with the
Territorial and Reserve Forces. The next two classes may be bracketed
together as Labour Laws, but are distinct according as they relate to the
conditions of employment of the workers, for instance, in shops, coal
mines, or factories, or to the benefits which accrue to them through
Workmen’s Compensation, Friendly and other Societies, and Old-Age
Pensions. In both these cases, also, all the laws apply to the whole of
the United Kingdom as do the great majority of the laws in the next two
headings of Finance and General Administration. The “State” Acts under
Finance are those by which Parliament has made grants towards the local
expenditure upon education and towards the relief of the land from local
burdens, and has done so separately for the three countries; and the
“State” Acts of General Administration deal with the Central Departments
which are maintained separately for England, Scotland, and Ireland. The
heading of traffic is of dwindling importance, and the enumeration ends
with trade and commerce where the “United Kingdom” laws have a slight
numerical superiority.
I have confined myself here to a few summary remarks upon the different
legislative headings as I have discussed the matter in greater detail
elsewhere;(162) nor do I wish to enlarge upon the conclusions that might
be drawn from the figures. The South African War is evidently responsible
for the greater number of Military Acts in 1896-1900; and the slowing down
of the Parliamentary machine during Mr. Balfour’s Administration is
reflected in the smallness of the total legislative output in 1901-5.
Moreover, since the Unionists were in power throughout 1901-5, and the
Liberals throughout 1906-10, there is scope for a direct comparison of the
records of the two Governments, but such considerations have no bearing
upon our present purpose.
On the contrary, I hope that the opponents as well as the supporters of
Home Rule would agree that, since Home Rule involves a division of
legislative powers between the Parliament of the United Kingdom and the
Irish Parliament, it is not only pertinent, but necessary, that we should
make ourselves acquainted with the lines upon which Parliament has, in
practice, divided up its legislative business. For, while the point should
not be pressed too far, I would suggest that the separate Irish laws, and,
for that matter, the separate English and Scottish laws, constitute a kind
of internal devolution, which is all the more significant because
Parliament has not been actuated by any preconceived purpose; and that the
subjects which are now dealt with by “State” laws are, for that very
reason, those of which Parliament should naturally be relieved under any
scheme of Home Rule. Similarly, it might be claimed that Parliament should
retain those powers which it is now able to exercise in common for the
whole of the United Kingdom; but the position is not the same in the two
cases. In its anxiety to economise time, Parliament does not hesitate to
render its measures applicable to the whole of the United Kingdom by
appending to them clauses which regulate separately the application of the
provisions to Scotland and Ireland; and where these “application clauses,”
as they are called, are long and complicated, it is probable that separate
measures for the different parts of the United Kingdom could be adjusted
more closely to the local requirements. On the other hand, we may be sure
that Parliament would not have passed, for instance, separate Local
Government Acts for England, Scotland and Ireland, each of which took up
much of its time, unless it had been obliged to do so; and we may assume,
whenever such separate Acts are passed, that Parliament had some strong
reason for its action, though, of course, I do not imply that Parliament
has legislated also for England and Scotland on every subject on which it
has passed an Act that related exclusively to Ireland.
But it may be said that, while I have sufficiently described these
separate laws, I have not explained why they are passed, nor have I given
any reason why they must be continued. The separate laws are passed
because England, Scotland and Ireland have in many respects distinct and
different institutions. In Ireland, for instance, neither the position of
the Church, nor the organisation of the police or of the Courts of
Justice, nor the law in regard to the tenure of land, nor the system of
education or of local government in general, is the same as in England or
in Scotland; while Ireland is also subject to an exceptional code of
criminal law. And the institutions of England and Scotland differ also
very widely from one another. “After a long period of intimate union
between England and Scotland,” said Lord Lothian, in 1887, in a speech in
the House of Lords upon the proposed enlargement of the powers of the
Secretary for Scotland, “people are apt to forget how entirely distinctive
and different the administration of Scotland is from that of England.
There is almost no point of resemblance. There are different forms of
religion and different social forms affecting almost every portion of
Scotland. There is a different code of education—an entirely different
code of education—and different systems of agriculture. There are also
different systems affecting the law of lunacy and parochial laws, and
almost every other department.”(163) And these differences between the
three countries, which are the direct cause of the distinctive laws, must
surely be regarded as permanent, seeing that they have persisted since the
respective Acts of Union. Neither Scotland nor Ireland would willingly
surrender its separate judicial and ecclesiastical institutions or its
separate machinery of administration. Indeed, the prevailing tendency
favours increased differentiation, and it has the support of Unionists as
well as of Liberals. The Unionists have recently created new Irish
Departments in Dublin, such as the Department of Agriculture and Technical
Instruction, and when the Liberals had re-established the office of
Secretary for Scotland after a lapse of nearly a century and a half, the
Unionists proceeded to add considerably to its powers.
We may thus take it as axiomatic that, in the absence of Imperial
Federation, or of a proposal such as Home Rule whereby Parliament can be
relieved of some of its legislative duties, it must continue to occupy
itself with five different categories of laws: Imperial laws, affecting
the British Dominions beyond the seas; laws applying to the whole of the
United Kingdom; and laws which relate exclusively to England, to Scotland
and to Ireland. Moreover, while each legislative sphere has its parallel
sphere of administration, the sole and supreme authority, except so far as
the Dominions look after their own affairs, is centred, as with the
legislative power, in a single body, the Government of the United Kingdom,
which holds an absolutely unique position in the extent and variety of its
responsibilities. In both these functions, then, we may have serious
doubts as to how the system works, but I am unable to give any direct
evidence in regard to the Executive. Though it is inherently improbable
that a small group of men should be able adequately to supervise so varied
a collection of interests, the subject is obviously one in which it is
almost impossible to obtain precise information. The Cabinet of 1880-5 was
not altogether happy in its multiplex activities, and complaints were rife
of the neglect of home affairs during the South African War. Speaking
generally, indeed, the Unionists, according to their adversaries,
subordinate domestic to Imperial interests, while the critics of the
Liberals would say that the Liberals reverse the process. And there we may
leave the question, while agreeing, I hope, that Home Rule, or preferably
Home Rule all round, would be beneficial so far as it would relieve the
pressure upon a Cabinet that can scarcely fail to be overworked. And if
there is any doubt as to the Cabinet there can be no doubt that Parliament
is overworked to a very grievous extent. Irrespective of the strain upon
individual numbers, it is admittedly unequal to the efficient discharge of
its manifold functions. It cannot do all that it should do, and much of
what it does do, it does without proper discussion. As to the first of
these shortcomings, I am glad to be able to quote from an article in the
_Round Table_(164) for December, 1911, in which, after a detailed
comparison of the time that is available to the House of Commons with the
demands that are made upon it, the conclusion is reached that “the
legislative requirements of the country are too great for the available
Parliamentary time.” And, as to the absence of proper discussion, the
reader may be referred to the remarks on every occasion when the use of
the guillotine closure is proposed, while the final inadequacy of the
House of Commons is implicit in the recent admission of the Prime
Minister, when proposing the guillotine motion upon the National Insurance
Bill, that, without a resort to this method of procedure, the House cannot
carry out the duties which it is required by the country and the interests
of the Empire to discharge. Moreover, it should be borne in mind that, in
trying to get all this diverse work out of a single Parliament,
Governments have not only grievously restricted its legislative powers,
but have also reduced the opportunities for discussion on administration
and finance which are at least equally important functions of any supreme
Parliamentary authority.
But the agitation in connection with the National Insurance Act will keep
public attention sufficiently focussed upon the manner in which Parliament
does its legislative work, and I pass from the amount of the work to the
consequences arising from its variety. As the Cabinet must supervise both
domestic and Imperial affairs, and Parliament must deal separately with
these two branches of legislation, so the electorate should not overlook
either the Imperial or domestic views of those who seek its suffrages. But
an elector may be faced by the difficulty that he likes the Imperial views
of one candidate and the domestic views of the other, while the same man
must represent him in both of these aspects in the House of Commons. In
1900 the Liberal supporter of the South African War was confronted with
this dilemma in an acute form; and, in view of subsequent disputations, it
may be taken to have been unfortunate that the party which won the
elections of 1900, almost entirely on Imperial considerations, should
thereby have been placed also in charge of our domestic concerns. And
there was a similar confusion of issues in 1906, when, because a man was a
tariff reformer or a free-trader, it did not necessarily follow that, in
the former event, he was for, or, in the latter, against, the Conservative
policy in regard to the liquor trade or religious instruction in the
elementary schools. No small advantage, therefore, would accrue from Home
Rule all round in the fact that separate categories of issues would be
placed separately before the constituencies.
And the electoral confusion is reproduced in the House of Commons; for
there can be no doubt that the Liberals suffered under this disability in
the Parliament of 1900, and the Conservatives in that of 1906. But, in the
case of the Member, the connection with so many diverse interests has also
other objectionable consequences. Supposing he sits for an English
constituency, his responsibility extends to Scottish and Irish laws and
administration, as to which he will know little or nothing, while his
constituents will usually be indifferent as to what he may do.
Illustrating this matter from my own experience as an English county
Member, I may say, regarding my votes upon the Scottish Small Landholders
and Valuation Bills, and the Irish Evicted Tenants and Land Bills, that
not one of these subjects brought me any letter from a constituent, or was
the occasion of any reference whatever in the course of any of my
political meetings. And, since there is no reason to suppose that other
English constituencies would feel or act differently, all these votes of
English Members are in reality irresponsible, and they are to be condemned
upon the principles of representative Government. For, in spite of the
observance of its outward forms, its true spirit is absent wherever there
is a failure of the healthy interplay of influences between a Member and
his constituents; and here again, Home Rule all round could alone relieve
the situation. Through the establishment of separate Parliaments in
England, Scotland and Ireland, a Member’s work in each of these bodies
would be confined, as regards public affairs, to matters by which his
constituents were or might be affected and in which there was the normal
and proper relation between the electors and those whom they had elected.
Moreover, there is a further evil effect arising from the inevitable
indifference of constituents to much of the legislation which does not
apply to the country in which they live. In view of the divergence of
interests and diversity of classes represented in every Parliament, there
is probably no legislature in which there is not a tendency to
“log-rolling,” by which I mean arrangements among Members to support
measures about which they do not care in return for help with measures in
which they are particularly concerned. This temptation will be greater
when the Parliament is not only overworked, as is the case here, but the
struggle is intensified by the rivalry between English, Scottish, and
Irish claims upon its attention. In the resultant situation, indeed,
arrangements of a “log-rolling” character are likely to be made even upon
the wider issues, and the fact should not be overlooked that they are
rendered more easy because so many laws are passed separately for England,
Scotland, and Ireland. In theory, of course, as Professor Dicey claims, it
is the duty of a Member, whencesoever returned, to consult for the
interests of the whole nation, and not to safeguard the interests of
particular localities or countries; but in practice he cannot do it. The
subjects for legislation are so complicated that he cannot make himself
acquainted with them as they affect each of the three countries, and the
pressure upon Parliament is so tremendous that he is almost bound to try
to get for his own country a fair share of such time as is available. It
is, therefore, wiser to bow to the inevitable, and enable the English,
Scottish, or Irish Member, as the case may be, to look after his own
concerns in his own Parliament, untroubled by the presence of others who
do not understand his business and will not be called to account by their
constituents for what they may do, while leaving the control of all common
affairs, as at present, to the Parliament of the United Kingdom.
There are, however, valid reasons why Ireland has a pre-eminent claim to
priority of treatment. Ireland has been much less successful than England
or Scotland in securing that Parliamentary action should be in accordance
with the wishes of the majority of its Members in the House of Commons.
Where the representatives of three countries together constitute a
legislative body, it is probable that each of these countries will at some
time or other be under the sway of a majority different from that which
would be formed if its own representatives alone decided upon its
composition; but it is clear that this fate is less likely to overtake the
country which has a great numerical preponderance in the legislature in
question. Thus, taking the period since 1885, England, holding 465 of the
670 seats in the House of Commons, was only in this position from 1892-5,
for at the two elections in 1910 there was almost a tie in the return of
226 Ministerialists and 239 supporters of the Opposition. And this great
preponderance of one of the countries adds to the likelihood that the
others may have the majority of their own representatives in a minority of
the whole representation. I have not been discussing the separate case of
Wales, and so I will only say that, of the 30 Welsh Members, on no
occasion in the twenty-seven years have the Unionists been able to muster
more than 8; and Scotland has scarcely responded more closely to the swing
of the pendulum in England. Though the Unionists were in power for fifteen
out of the twenty-seven years, they had a majority in Scotland, and that a
very small one, only in the Parliament of 1900. But Scotland on the whole
does not come off badly, since it is not the practice of the Members from
the other countries to vote down the Scottish representatives. Where
Scotland does suffer is in their inability, owing to their numerical
weakness, to secure a fair share of attention for Scottish domestic
concerns. A law on Scottish Education, for instance, though it got into
the Queen’s Speech for 1900, was not enacted until 1908, and the Scottish
Members never have more than one day in the Session for the discussion of
all the Scottish Estimates. When we pass to Ireland, it is difficult to
make any similar comparison, for, though the Nationalists sit permanently
in opposition in the House of Commons, it does not follow that they should
be classed as being opposed to the Liberals as well as to the Unionists.
If we regard them as opposed to both of the principal parties, then, when
the Liberals have been in power, every Irish Member with one single
exception must be reckoned to have been among their opponents. But, if we
prefer to base our calculations upon the sort of informal understanding
which has existed during most of the time between the Liberals and the
Nationalists, we must confine our attention, from the present point of
view, to the years of Unionist Government, and we find that, of the 103
Irish representatives, the number of Irish Unionists during those periods
has never exceeded 23 and has been as low as 19. Thus, putting the various
figures which have been quoted into percentages, it becomes evident that
England has had to live under a Liberal Government when the Unionists (in
1892-5) had 58 per cent. of the total English representation; Scotland has
had to live under a Unionist Government when the Liberals (in 1886-92) had
60 per cent. of the total Scottish representation; whereas Ireland has had
to live under a Unionist Government when the Nationalists had as much as
81 per cent. of the total Irish representation. And it must be borne in
mind that, while England and Scotland are only rarely governed in
opposition to the wishes of the majority of their representatives, Ireland
has continued to be preponderantly Nationalist irrespective of party
fluctuations in Great Britain.
In these circumstances, Ireland, whether in its Nationalist or its
Unionist constituencies, never expresses any other opinion than for or
against Home Rule. We regret the confusion at all elections in the United
Kingdom between Imperial and domestic issues, but at least we get an idea
of the views of the electorate in Great Britain on some big Imperial
question, or as between Free Trade and Protection. In Ireland we get
nothing of the kind; it is impossible to say, for instance, whether
Ireland is in favour of Tariff Reform or not; and the votes of the great
majority of its representatives in the House of Commons are usually given,
not with reference to the views of their constituents on the question
under discussion, but solely in relation to the attainment of Home Rule.
Now, this attitude of the Nationalists is evidently adopted because Irish
domestic concerns are decided in the House of Commons by men who are not
Irish representatives; and it may be remarked that Scotsmen, and even, to
some extent, Englishmen, are also liable to have their wishes on purely
domestic affairs over-ridden by the representatives of the other
countries, but that they do not, on that account, subordinate everything
else to the effort to release themselves from this anomaly.
But, apart from the consideration, as we have seen above, that the Irish
have been the principal sufferers, the Irish electorate are entitled, if
this is a free country, to choose the issue which shall be put forward,
and we should sympathise with them when they ask to be allowed to manage
their domestic affairs without interference, in accordance with the
principles of representative government. It is immaterial how far the
Irish Nationalists have actually been able to get their own way in the
House of Commons, for their efforts have usually been in vain until after
a lawless agitation in Ireland, which, as a means of securing redress for
grievances, is as demoralising to the legislator as to the elector. And
when the law for which the Irish have asked has been passed without any
such outside pressure, it is evident that the votes of the majority of the
Irish representatives would have been useless unless sufficient English
and Scottish Members had been willing to fall in with their wishes. Every
Irish Nationalist knows, therefore, that a majority of the Irish
representatives is by itself utterly unable to carry a purely Irish
measure through the House of Commons, however often it may have been
advocated, and however large may have been the Irish majorities in its
favour; and representative government cannot fail to be brought into
disrepute in Ireland, on account of its futility under existing
conditions. Moreover, if representative institutions are to work well,
there should be, so far as is possible, in every constituency supporters
and opponents of the Government on the current questions of the day, for
it is only by constant discussion and interaction that we can secure a
sound relation between Parliament and the country. But nothing of the kind
takes place in Ireland. Through their dissociation from the division into
parties that prevails in Great Britain, the bulk of the Irish people are
not informed as to the views on topics other than Home Rule of the
Liberals, Unionists, or Labour men. In the greater part of Ireland, the
Nationalist candidate is returned unopposed or is opposed only by another
Nationalist; and when this is so, the party in power, whether it be
Unionist or Liberal, is usually without any machinery by which its case is
put before the electorate. Elsewhere, in Ireland, the Unionists have their
organisation against Home Rule, and so far the Liberals are even in a
worse position, for, though they have had the supreme control of affairs
for the last six years, there are not half a dozen constituencies in
Ireland where they have any means by which they can learn the views of the
people or explain the policy of the Government. And yet Ireland, like the
rest of the United Kingdom, is supposed to live under representative
institutions! No doubt I may be reminded that the Nationalist Members are
in touch with local opinion in Ireland, and that they are the informal
allies of the Liberals; but the Nationalist attitude is concerned with
little else but Home Rule, and it is just because, in existing
circumstances, the Irish do not declare themselves, or perhaps even form
an opinion, on ordinary political issues, that our representative system
has broken down so much more severely in Ireland than in England or in
Scotland.
And thus I conclude my survey of the practical working of the Act of
Union. I have shown that the domestic affairs of the three countries are,
in continuance of what was done before the Union of the Parliaments, or as
the result of subsequent developments, ordered in many respects separately
for England, Scotland, and Ireland, and that there is no question in any
quarter of the elimination of these separate arrangements. But they have
led, as has been further demonstrated, to many difficulties in connection
with our system of Parliamentary government, and it is only by the
sub-division of the responsibilities between two or more Parliaments that
such difficulties can satisfactorily be overcome. We have, therefore,
valid grounds for the advocacy of Home Rule, apart from the particular
claims of Ireland, though they, of course, serve to strengthen the
argument; and, in considering what form the proposals should take, we
cannot do better than study carefully how far England, Scotland, and
Ireland are now governed in common and how far each of the three countries
is governed separately. For the subjects in which there is now separate
treatment are those which would be transferred under Home Rule with the
smallest breach of continuity, or rather, in the natural course of our
constitutional evolution.
(III) Colonial Forms Of Home Rule. BY SIR ALFRED MOND, BART., M.P.
One of the most important elements in the problem of Home Rule must be the
relation between the spheres of legislation to be retained by the existing
Parliament, and those to be allocated to the subordinate Irish
Legislature. Such demarcation will be applied later to the other local
Parliaments which may be created for England, Scotland and Wales. The
creation of subordinate legislatures, together with the retention of a
central Parliament, must necessarily lead to the study of federal systems
already in existence in the Empire, and of the mutual relations of similar
bodies within such federations. It is true that a certain influential
school of political thought is rather disposed to compare the position of
the future Irish Parliament to that of the Dominion Parliaments in their
relations with the Parliament at Westminster. The effort, however, to draw
an analogy between Ireland in her relations with Great Britain, and the
relations existing between the three Dominions and the United Kingdom is
most misleading. The difference between those dominions and Ireland is
indeed far more striking than the similarity, whether they are compared
either from the point of view of area, of present and future population,
or of geographical position. The narrowness of the strip of sea that
separates Ireland from Great Britain places it from a military and naval
standpoint in a very different position to that of Canada, Australia, or
South Africa. Whereas the great distance at which these Dominions are
situated imposes upon them the necessity of creating their own defensive
forces, a separate Irish Navy or Army would have no _raison d’etre_.
Again, not only the distance but the different environment and climate of
these Dominions, and, particularly in the cases of Canada and South
Africa, their greater non-British population, naturally promote the
development of a sense of national entity and therefore of a desire for a
greater measure of national independence than is felt or demanded by
Ireland, in spite of her strong national sentiment. Supposing for
argument’s sake, that the whole of the Canadian, Australian, and South
African Dominions formed geographically with Great Britain one continuous
territory such as the United States of America, it is clear that there
would have been no call for granting the various Dominions the almost
sovereign powers which they now enjoy. What would most probably arise in
such a hypothetical case would be a single federal complex, comprising a
central authority or parliament and a large number of state legislatures.
As a matter of fact the form of government of these various Dominions and
their relations to the Mother Country are largely a geographical accident.
It is impossible to conceive a system of “Home Rule all round” in which
England, Scotland, Wales and Ireland would have the same positions and
powers as Canada, Australia and South Africa, and would maintain the same
relations towards each other as all three Dominions now occupy towards the
United Kingdom. Nor could such an idea be entertained by any one framing a
constitution, intended to be the commencement of the federalisation, first
of the United Kingdom and afterwards in due time of the British Empire,
when circumstances and the growth of public opinion render it possible to
secure the representation of the Dominions in an expanded Imperial
Parliament.
In a truly federal system such as those of Canada and Australia, the
citizens who elect representatives direct to the Federal Parliament to
deal with the broader issues and interests of the Commonwealth, are
naturally fully represented. If the Irish Legislature is to be precluded
from dealing with Imperial matters, it is obviously only just that the
Irish people, as citizens of the Empire, should send a proportionate
number of representatives to the Imperial Parliament to express their
views on Imperial subjects, and, under a perfect federal system, the
expression of their views would be confined to Imperial subjects. This
would consequently necessitate the continued presence of a certain number
of Irish members at Westminster. In view of the fact that the “in and out”
system, which caused so much criticism of Mr. Gladstone’s Bill, has been
in force for over forty years in the Hungarian Parliament at Budapest, in
which the Croatian representatives are only entitled to vote on matters
affecting the whole Kingdom, while precluded from voting on those
affecting Hungary alone, it is evident that the practical inconvenience
cannot be anything like so great as has been imagined. But whatever
inconvenience might result to the Government from the presence of Irish
representatives in such circumstances, it certainly cannot be allowed to
outweigh the injustice of leaving such a large section of the British
electorate, as is the Irish people, unrepresented in a chamber which deals
with matters that may very seriously affect their interests. Mr. Asquith’s
hint at the possibility of such a change in the Standing Orders of the
House of Commons as will distribute legislative business between English
and Scotch Standing Committees, suggests a method of combining the
retention of the Irish members at Westminster, with their exclusion from
participation in other than Imperial matters.
Of course in framing a new constitution to meet at once the legitimate
national aspirations of the Irish people and the requirements of the
Imperial power, we cannot pedantically follow any existing model or
precedent, or drive any analogy too far. It is not intended, by drawing
attention to the fact that the local rather than the Dominion Legislatures
constitute the better models, in any way to impair the prestige of the
future Irish Parliament, or to lessen the readiness to meet all reasonable
demands of the Irish party and people, or to withhold powers necessary to
make self-government a success. But it is essential to bear in mind that
the primary condition of permanent success is a measure that will work
with the least possible friction on both sides while satisfying legitimate
Irish demands.
With these points in view, it is therefore proposed to examine shortly the
constitutions of the three dominions already referred to, with the object
of showing what are the powers reserved by them for the Federal
Governments and what are those attributed to the different States
comprised in the federations, in order to deduce from them some parallel
applicable to the case of Ireland—of course, as already indicated, with
such modifications as may be rendered necessary by special circumstances.
It will be well to begin with the Canadian Constitution as the oldest,
dealing afterwards with the Constitutions of the Australian Commonwealth
(1900) and of the South African Union (1909).
The British North America Act, 1867, expressly sets forth the classes of
subjects which can be dealt with by the Federal Parliament “for greater
certainty, but not so as to restrict the generality of the foregoing terms
of this section,” that is to say, the liberty given to the Central
Parliament “to make laws for the peace, order and good government of
Canada, in relation to all matters not coming within the classes of
subjects by this Act assigned exclusively to the legislatures of the
provinces.” Thus, in Canada, the “residuary” or unspecified classes of
subjects are reserved for the Central or Federal Parliament.
Section 92 provides that in each province the legislature may exclusively
make laws on the following subjects:
The amendment of the Constitution of the Province, except as
regards the office of Lieutenant-Governor;
Direct taxation within the province for provincial purposes;
The borrowing of money on the sole credit of the province;
The establishment and tenure of provincial offices, and the
appointment and payment of provincial officers;
The management and sale of the public lands;
The establishment, maintenance and management of prisons,
hospitals, asylums, charities, in and for the province;
Municipal institutions in the province;
Shop, saloon, tavern, auctioneer, and other licences, for
provincial, local or municipal purposes.
Local works and undertakings, excepting:—
“(_a_) Lines of steam or other ships, railways, canals,
telegraphs, and other works and undertakings connecting the
province with any other or others of the provinces, or extending
beyond the limits of the province.
“(_b_) Lines of steam ships between the province and any British
or foreign country.
“(_c_) Such works as, although wholly situate within the province,
are before or after their execution declared by the Parliament of
Canada to be for the general advantage of Canada or for the
advantage of two or more of the provinces.”
The incorporation of companies with provincial objects; marriage
and property and civil rights in the province;
The administration of justice in the province, civil and criminal
jurisdiction, together with the imposition of punishment by fine,
penalty, or imprisonment, and generally all matters of a merely
local or private nature.
Subsequent paragraphs provide that the provincial legislatures may
exclusively make laws in relation to education, provide for uniformity of
laws in certain provinces, and also deal with agriculture and immigration,
with the proviso, however, that such laws shall have effect only so long
and as far as they are not repugnant to any Act of the Canadian
Parliament.
In the case of the Australian Commonwealth, it is the powers of the
Central Parliament that are strictly defined and restricted, contrary to
the course followed in the Canadian Constitution. As an indication of the
powers left to the State Parliaments it may be well to specify the powers
of the Central Parliament as set forth in the Constitution Act, Paragraphs
51 and 52:
Trade and commerce with other countries, and among the States;
taxation; bounties; borrowing money; postal, telegraphic,
telephonic, and other like services; naval and military defence;
lighthouses, &c.; astronomical and meteorological observations;
quarantine, fisheries, census and statistics; currency, coinage
and legal tender; banking, other than State banking; insurance;
weights and measures; bills of exchange and promissory notes;
bankruptcy and insolvency; copyright, patents and trade marks;
naturalisation and aliens; foreign corporations, and trading or
financial corporations within the Commonwealth; marriage and
divorce; invalid and old-age pensions; the service and execution
throughout the Commonwealth of the civil and criminal process, and
the judgments of the courts of the States; the recognition
throughout the Commonwealth of the laws and judicial proceedings
of the States; immigration and emigration; the influx of
criminals; external affairs; control of railways for naval and
military transport; the acquisition, with the consent of a State,
of railways of the State; railway construction and extension;
conciliation and arbitration in industrial disputes extending
beyond the limits of any State; etc.
Paragraph 107 provides that every power of the Parliament of a Colony
shall, unless exclusively vested in the Parliament of the Commonwealth, or
withdrawn from the Parliament of the State, continue as before. Paragraph
109 stipulates, however, that when a State law is inconsistent with the
law of the Commonwealth, the latter shall prevail, and the former shall,
to the extent of the inconsistency, be invalid.
Certain powers specifically granted to the State Parliaments are set forth
in the following paragraphs, which are of sufficient interest to be cited
textually:
“112. After uniform duties of customs have been imposed, a State
may levy on imports or exports, or on goods passing into or out of
the State, such charges as may be necessary for executing the
inspection laws of the State; but the net produce of all charges
so levied shall be for the use of the Commonwealth; and any such
inspection laws may be annulled by the Parliament of the
Commonwealth.
“113. All fermented, distilled, or other intoxicating liquids
passing into any State or remaining therein for use, consumption,
sale, or storage, shall be subject to the laws of the State as if
such liquids had been produced in the State.
“114. A State shall not, without the consent of the Parliament of
the Commonwealth, raise or maintain any naval or military force,
or impose any tax on property of any kind belonging to the
Commonwealth, nor shall the Commonwealth impose any tax on
property of any kind belonging to a State.
“115. A State shall not coin money, nor make anything but gold and
silver coin a legal tender in payment of debts.
“117. A subject of the Queen, resident in any State, shall not be
subject in any other State to any disability or discrimination
which would not be equally applicable to him if he were a subject
of the Queen resident in such other State.
“118. Full faith and credit shall be given, throughout the
Commonwealth to the laws, the Public Acts and records, and the
judicial proceedings of every State.
“120. Every State shall make provision for the detention in its
prisons of persons accused or convicted of offences against the
laws of the Commonwealth, and for the punishment of persons
convicted of such offences, and the Parliament of the Commonwealth
may make laws to give effect to this provision.”
In South Africa where, owing to local circumstances, a purely federal
system was held to be inappropriate, the powers granted to the subordinate
provincial legislatures are much more restricted than in Australia and
Canada. In the “South Africa Act, 1909,” Paragraph 59 simply provides that
the (Central) “Parliament shall have full power to make laws for the
peace, order, and good government of the union,” a formula similar to
those used in the Canadian and Australian Constitutions as also in the
Gladstonian Home Rule Bills. On the other hand, several paragraphs in
Section 5 dealing with the provinces almost recall the centralising
tendencies of France, such as for instance, the provision that the
Governor-General in Council is to appoint the administrator, or Chief
Executive Officer, of the province, in whose name all executive acts
relating to provincial affairs shall be done—an official who presents a
certain resemblance to the French Prefect.
The powers reserved to the Executive Committee of the Provincial Council,
presided over by the Administrator, comprise:
Taxation within the province;
The borrowing of money on its sole credit;
Education, other than higher education;
Agriculture;
Hospitals, charitable, municipal and other local institutions;
Local works and undertakings within the province, other than
railways and harbours and bridges connecting two provinces;
The imposition of fines, penalties, or imprisonment for enforcing
provincial laws and generally all matters which, in the opinion of
the Governor-General in Council, are of a merely local or private
nature in the province.
Taking the Canadian Constitution as the most workable model, let us
consider in the light of that instrument what powers it would be
reasonable to hand over to an Irish Legislature. There are two ways of
proceeding in framing any such Constitution. One is to grant general
powers with specific limitations, the course followed by Mr. Gladstone in
his two Home Rule Bills. The second is to specify the powers to be given
to the subordinate Legislature, outside of which it cannot act. Good
reasons may be advanced for both methods; but in view of the difficulty of
accurately foreseeing all the needs and necessities to be provided for by
a new legislative body and the great risk of overlooking important
matters, the inclusion of which later on might encounter very serious
obstacles, the method of giving general powers with exceptions and
restrictions specified in the Act seems the more workmanlike of the two.
If the latter course be adopted, following the precedent created in the
Bills of 1886 and 1893, the new Legislature will acquire general powers to
make the necessary laws for the peace, order and good government of
Ireland. The powers thus granted in general terms will of course be very
extensive, comprising, as they must, the liberty of raising taxes,
borrowing money, and dealing with education, public worship, property and
civil rights, land, factory and company laws, the administration of
justice, licensing, etc., etc.
In connection with taxation the important question arises whether the
power should be granted to any unit of a federal state to impose Customs
Duties. In the models we have referred to no local legislature is entitled
to deal with Customs or Tariffs. Indeed all three Constitutions expressly
provide that there shall be free trade within the limits of the
federation. It is inconceivable that a British Parliament should ever
grant, or that the Irish representatives should ever ask for, powers which
would enable Ireland to set up a radically different fiscal system to that
adopted by the rest of the United Kingdom. Thus the precedents established
by the Constitutions of the different Dominions would undoubtedly have to
be followed. There is a further question to consider, namely, how and to
what extent it will be possible to reconcile any conflict that may arise
between the powers exercised by the central and local legislatures in
collecting taxes. For instance is the income tax to be retained as a
purely Imperial tax, or is the Irish Parliament to have power to levy,
either in substitution for it or in addition to it, an income tax of its
own? The same question arises with regard to excise duties. As no income
tax is imposed in any of the three self-governing Dominions referred to,
their constitutions throw no light on this point. Nor does the
Constitution of the German Empire, as there the income tax is a state and
not an Imperial tax. A solution of this problem might be possible on two
lines. One by allowing the Irish Government to impose its own income tax,
paying a fixed contingent to the British Treasury. The second method would
be to allow the Irish Parliament to make additions to the British tax, in
the way that German municipalities are allowed to make additions to the
State income tax. Something of this kind seems contemplated under the
Government Bill.
In the Dominions licenses for the sale of alcoholic liquors, excise
duties, and land taxes are all imposed by the States. They might also be
very well made State, that is to say Irish, taxes in Ireland. The future
financial relations between Ireland and Great Britain, however, are dealt
with in another chapter.
In considering what subjects would naturally be withdrawn from the
jurisdiction of the future Irish Legislature, as of other subsequent
British local legislatures, it will be well to see which of these
exclusions are common to the Canadian and Australian Constitutions. These
are: trade and commerce, indirect taxation, borrowing money, postal,
telegraphic, and telephonic services, naval and military defence,
lighthouses, etc., quarantine, fisheries, census and statistics, currency,
coinage and legal tender, banking, other than State banking, weights and
measures, bills of exchange and promissory notes, bankruptcy and
insolvency, copyrights patents and trade marks, naturalization and aliens,
marriage and divorce. There are also a few differences in the matter of
exclusions between the two Dominions. For instance, Canada’s list of
reservations for the Central Parliament begins with “The Public Debt and
Property,” for which there is no exactly corresponding heading in the
Australian Constitution. This Canadian list also includes navigation and
shipping, savings banks, the criminal law and penitentiaries. On the other
hand the subjects reserved for the Central Parliament in Australia,
comprise, _inter alia_, bounties, insurance, other than State insurance,
trading or financial corporations, invalid and old-age pensions,
immigration and emigration, “external affairs,” control of railways for
military and naval transport purposes, railway construction and extension,
industrial conciliation and arbitration, etc.
The essential exclusions from the jurisdiction of State Legislatures are,
of course, national defence, treaty making powers, laws affecting foreign
trade and shipping, lighthouses, coinage and legal tender, trade marks,
patents and copyrights to which might very well be added factory
legislation, company legislation and the laws affecting negotiable
instruments. It would seem a pity to break up the legislation on subjects
that are less of local than of general interest, thus adding to their
legal difficulties by diversity of legislation. As regards factory laws
the question of the position under international conventions of an Irish
Legislature demands specially careful consideration. There are, at
present, two international conventions relating to factory laws, namely,
those concerning the prohibition of white phosphorus in match
manufacturing, and night work by women in industrial occupations. It is
likely that they will shortly be followed by others regulating the hours
of work of women and young persons and prohibiting night work by boys
under eighteen. It is desirable that the advantages of such conventions
should be retained for the Irish industrial worker.
The justification of most of the exclusions just enumerated is
sufficiently obvious and their enforcement in most of the Dominion
Constitutions show that by common consent they have been accepted as
reasonable, as for instance those dealing with national defence,
treaty-making, peace and war, and the rights and privileges of the Crown.
There remains, perhaps the most important point of all, namely the control
or power of restriction to be exercised by the Imperial Parliament over
the legislation of the new Irish Legislature by means of a veto. The
Canadian Constitution confers upon the Dominion Government the same powers
of disallowance of Acts of the provincial legislatures as belonged to the
Imperial Government prior to 1867. According to Sir John Bourinot
(“Parliamentary Procedure”), the Minister of Justice in 1868, laid down
certain principles of procedure which have been generally followed up to
the present time. On receipt of the Acts passed in any province they are
immediately referred to the Minister of Justice who reports upon them. If
the Minister considers an Act free from objection and his report is
approved by the Governor-General in Council, such approval is forthwith
communicated to the Provincial Government. The Minister of Justice makes
separate reports on those Acts which he may consider: (1) as being
altogether illegal or unconstitutional; (2) as illegal or unconstitutional
in part; (3) as, in case of concurrent legislation, clashing with the
legislation of the general Parliament; (4) as affecting the interests of
the Dominion generally. It has also been the practice (adds Sir John
Bourinot) in the case of measures only partially defective, not to
disallow the Act in the first instance, but, if the general interest
permits such a course, to give the local government an opportunity of
considering the objections to such legislation and of remedying the
defects thereof. In his book “How Canada is Governed,” Sir John Bourinot
makes some pertinent remarks upon the method of dealing with such cases:
“The Governor in Council can within one year from its receipt
disallow an Act of a provincial legislature, and consequently
prevent it becoming law.... As a rule it is the wiser policy to
obtain an opinion from the Courts in all cases of doubt ... rather
than use a political power which is regarded with suspicion by the
provinces. The law allows such reference to the Supreme Court in
Canada.”
In Australia, where the powers of the States were established long before
the Commonwealth came into existence, there is no direct power of veto,
but in 1903 and subsequently, Acts were passed by the Commonwealth
Parliament giving the High Court jurisdiction in matters arising under the
Constitution or involving its interpretation. Thus, in the words of Mr. W.
Harrison Moore, Dean of the Faculty of Law in the University of Melbourne,
in his “Constitution of the Commonwealth of Australia,” “the Commonwealth
Government and the State Governments are in their relations independent
and not hierarchical. There is no such general supervision of the State in
the exercise of the powers belonging to it as is enjoyed by the Dominion
Government over the Provinces of Canada.... The observance by the
Commonwealth Government and the States of the limits set to their powers
is secured by the action of the courts whose judicial duties may involve
the determination of the validity of the authority under which acts are
done, whether that authority is the Crown, a subordinate legislature, or
any whatsoever save the Imperial Parliament.”
If the Canadian example be followed the Imperial Parliament will retain
powers of control of such a far reaching character over Irish legislation,
as ought to dispel the fears of timid souls who are reluctant to entrust
the Irish people with the task of working out their own destiny. The
Canadian veto has not been a dead letter, but has exercised its
restraining influence, both actively and passively, over the Provincial
Legislatures, which have naturally been averse to allowing matters to come
to a crisis necessitating its use. Further, to follow precedent, the
interpretation of the powers to be granted by the new Irish Constitution
should rest in the last resort in an appeal to the Privy Council.
With both these safeguards inserted in the Home Rule Bill much of the
objection commonly felt against the creation of an Irish Parliament, an
objection largely due to loose thinking, should disappear. It may be
argued that both in Canada and Australia disputes do occasionally occur
between the State Legislatures and the Central Parliaments as to their
respective rights. That is one of the inevitable disadvantages of a
federal regime, but, as a very distinguished Canadian statesman once said
to the writer, the counterbalancing advantages of a de-centralized system
far outweigh all such drawbacks. No student of current politics can be
blind to the fundamental fact that the amalgamating of the Parliaments of
Scotland, Ireland and England into one legislature, without at the same
time unifying the legislation of those countries, has produced a state of
congestion and overwork which cannot be permanently tolerated. In existing
circumstances neither matters affecting the whole Empire nor local
legislative needs can secure a sufficient expenditure either of energy or
time to do them justice. By partially reversing the process of unification
through a devolution of powers to local legislatures we should be
following a precedent that has proved successful in other parts of the
Empire and in foreign countries while at the same time putting our action
into harmony with the true process of evolution.
XVI.—Contemporary Ireland And The Religious Question
(I) A Catholic View. BY MONSIGNOR O’RIORDAN
It is as characteristic of those who have fallen in fortune to talk of
their wealth as it is of the consumptive to talk of their health. It is
natural. If they were conscious of having the reality they would not feel
the need of convincing others that they had it. For a like reason those
speak most of virtues and gifts who have them least. One rightly suspects
the spirit of those who keep insisting that all are intolerant who think
and act on other principles and in other ways than theirs. The word
tolerance has met the fate of other words which denote excellent things;
it has come to be misused. “Tolerance,” like “religion,” “liberty,” etc.,
has become a shibboleth, and like these it has been run to death.
When we speak of tolerance we necessarily refer to evil of some sort. In
the matter of truth or untruth we are said to tolerate what is untrue, or
what we think to be untrue. In the matter of right or wrong, we are said
to tolerate what is wrong, or what we think to be wrong. If one says that
he is tolerant of that in another which he himself believes to be true or
right, he speaks as one who does not understand what he says. It is the
same as saying that he is tolerant of his own convictions; in fact, that
he tolerates himself. One is said to be tolerant of that in another which
he thinks to be erroneous or wrong. Now, every principle which a man holds
is a law to him. He may be mistaken; his principles may be false; but
whilst he holds them as his principles he cannot under pain of
inconsistency disown them in word or deed. No man has proprietary rights
in principles. One has no right to compromise them. One may not barter
them away, may not make them the basis of a policy of give and take. To do
so would be to treat them not as principles but as mere opinions.
Principles are things to stand on, not things to play with as with pawns
on a chessboard. He who, whilst he professes some principle of belief or
conduct in religious or civil life, is ready to agree with his neighbour
in the opposite shows little regard for truth and little sense of duty. He
who for the sake of some convenience is prepared to play with his
principles has practically no principles at all. Such is one who professes
universal toleration, although no person would be more pained at being
thought an unprincipled man. It is a logical necessity for everyone to be
intolerant of principles opposed to his own. In matters of mere _opinion_
one may be, and ought to be, tolerant of the opinions of others, since in
face of those opinions he cannot claim an objective certainty for his own.
Let us illustrate this. A rationalist who denies the existence of any
higher than natural causes cannot admit any event to be miraculous. He may
ascribe it to some hypothetical natural cause, or he may have no cause to
assign; but he cannot on principle assign a supernatural cause, for the
simple reason that he ignores anything above the natural forces which come
within the sphere of experience. Thus the rationalist who claims tolerance
as his characteristic virtue is intolerant of any doctrine which supposes
the supernatural. He must be so, or he lets the ground go from under his
feet. Again, the Protestant on his principle of private judgment must be
intolerant of any doctrine which supposes an infallible authority on earth
claiming a divine commission to teach us the meaning of divinely Revealed
Truths. A Catholic who believes in a Church of divine institution, one,
visible, infallible, cannot be tolerant of a doctrine which makes
different Churches belong by equal right to Christianity, each whilst
conflicting with the others claiming Christ for its Founder. For the same
reason a Catholic cannot be tolerant of a theory which holds all religions
to be equally useful; that is, equally useless. He cannot be tolerant of
any theory which involves a denial of Catholic doctrine, since he
acknowledges an infallible authority as the source of the Catholic
doctrine which he holds. I am now and here neither asserting nor denying
any theory or any doctrine, Catholic or non-Catholic. I am only setting
forth the inconsistency implied in the toleration of principles opposed to
one’s own, whatever those principles be. Is it then irreclaimable
prejudice, or indifference to the obligation of principle, that makes some
persons throw up their arms and raise a cry of horror when they hear that
some Catholic has been excommunicated for having denied or questioned some
Article of Catholic faith? What is taken as a matter of course and of
common justice in every society and in every club in the country, namely
that one who is false to his society and unfaithful to its rules deserves
expulsion, is stigmatised as intolerance and moral tyranny in the Catholic
Church. There are certain rules in every association which a member may
not break under pain of expulsion. But a man may say what he likes, write
what he likes, do as he likes; may deny every doctrine, despise every
principle, and may nevertheless have, according to some, a right to remain
a member of the Catholic Church out of which only Romish intolerance would
drive him.
Everyone then, whatever be his religious, philosophical, political, or
social principles, must be intolerant of principles which are opposed to
his own. Tolerance, however, claims a place in matters of opinion. But
must not one think another’s opinions false if they are opposed to his
own? Certainly; but, being only opinions, one has no right to claim a
monopoly of certainty for one’s own as against those of others. Opinions
have no claim to the privilege of principles. And what is true in theory
of opinions holds in practice in matters of principle. One cannot, it is
true, be tolerant of principles opposed to his own; but others must not
suffer at his hands because they own principles which are not his.
Everyone must have credit for honesty, since one cannot fathom the depths
of another’s conscience. The Catholic Church, not to speak of its
individual members, disowns such a pretension as that; _Ecclesia non
judicat de internis_ is a maxim in Catholic theology. Thus, Catholic
teaching, whilst it binds Catholics to be intolerant of principles and
doctrines which it condemns, obliges them also to be tolerant of those who
hold those principles and doctrines for the sake of the sincerity which it
presumes in those who hold them. If we compare this tolerance, imposed as
a duty by Catholic teaching, with the unlimited tolerance professed by
some who assert the autonomy of individual reason, we shall find a
contrast between, for instance, the noble tolerance of St. Francis de
Sales and the bigotry of Voltaire. They were fellow countrymen. Each had
great natural gifts, mental acquirements, and uncommon literary power. St.
Francis lived a century before Voltaire, and, therefore, nearer to what
would now be called those traditions of bigotry from which Voltaire helped
so much to set us free. Yet the latter let his pen splutter on all who
dared to differ from him; the former in all his controversies dressed his
arguments with honey instead of vinegar. That charity which disposes one
to see good faith and honesty of purpose in persons in spite of their
errors, is the only true source whence the spirit of toleration must flow
into civil society. Toleration coming from any other source can give no
guarantee of permanence; for it begins with expediency, and ends with it.
But the toleration which separates a man’s sincerity from his possible
errors, and which in civil life ignores the latter for the sake of the
former, is founded on principle, and is above expediency or the changing
combination of human affairs.
The sincerity of a man who professes tolerance of principles which he
believes to be false is to be suspected; he should be taken as one who is
practically indifferent to truth or error. One can rely on the fidelity of
him who professes tolerance of others, in spite of some personal views of
theirs which he abhors, because of the sincerity with which, as he
presumes, they entertain those views. But if they should so obtrude those
views into public life as to affect the rights of him who repudiates them,
it becomes another matter. That would be an aggression on the civil rights
of others; and no person should let himself be made a victim in the name
of toleration.
Now, it is a significant fact that Catholic Maryland, before American
Independence came, was the one State in America in which no person had to
suffer civil disabilities for conscience sake. Members of Protestant sects
who had to fly from the intolerance of more powerful Protestant sects in
New England States always found toleration and a home there. Bancroft, the
Protestant historian of the United States, writes of Maryland:
“Its history is the history of benevolence, gratitude, and
toleration. The Catholics who were oppressed by the laws of
England were sure to find a peaceful asylum in the quiet harbours
of the Chesapeake, and there, too, Protestants were sheltered from
Protestant intolerance.”
It is an equally significant fact that later on the non-Catholics of
Maryland, in the day of their power, placed grievous disabilities on the
children of those Catholics who had given their exiled fathers a refuge in
their hour of need.
I will now consider how far those principles which I have set forth have
found application in Ireland. I know no country where tolerance and
intolerance are more talked of than there. It is sometimes good to talk
tolerance, but it is always better to practise it. The word is not heard
so much from Irish Catholics. Their relation to it is that they are
constantly engaged in defending themselves from charges of intolerance
poured out upon them from the vantage ground of ascendency. I doubt
whether it is worth while to assure our accusers that those charges are
not deserved. Those who call us intolerant in spite of our conduct will
discard our assurance in spite of our word. He who is in the habit of
calling his neighbour intolerant is not likely to trust him as truthful.
There are in every race and class individuals of an intolerant spirit. It
has always been so, and will always be so. Those exceptions will remain in
spite of the highest principles of a religion, a race, or a class. The
spirit of intolerance will be found in individuals within a class, as well
as between classes; and in actual life society subdivides itself down to
the units. Religion has been for the past few centuries the great cleavage
line along which the spirit of intolerance is supposed to play in the
distribution of privileges and power in civil life in Ireland. How are we
to determine on which side tolerance and intolerance lie? Not certainly by
witnesses on either side giving testimony in their own favour. We had
better let facts speak then; or, if we accept the evidence of persons, we
should hear what they have to say only of those of the other side.
The Synod of Kilkenny met in May, 1642. It was held by the Catholic
Bishops of Ireland in connection with the Kilkenny Confederation. That
Confederation was National and Catholic; part of its purpose was to
support King Charles against those who sought to dethrone him. He did not
personally deserve much sympathy from the Irish Catholics; nevertheless,
who were the Loyalists then? Ireland was in a state of war, and the rebels
were not the Catholics. Now the 18th Decree of the Synod of Kilkenny is as
follows:
“Wee ordaine and decree that all and every such as from the
beginning of this present warre have invaded the possessions or
goods, as well moveable as unmoveable, spirituall or temporal, of
any Catholic whether Irish or English, _or also of any Irish
Protestant_ being not adversaries of this cause, and doe detaine
any such goods, shall be excommunicated, as by this present Decree
wee doe excommunicate them, if admonished they do not amend, &c.”
That Decree speaks for itself; it protects Protestants equally with
Catholics. The “Lawes and Orders of Warre,” issued by Castlehaven the
following year, and the conduct of the Confederates throughout, show the
same spirit of toleration which is expressed in the Decree of the Bishops.
Another test of tolerance came with the restored power of Irish Catholics
half a century later. How did they use their opportunity? Lecky knew it as
well as anyone of his time; he was moreover out of sympathy with the
religious and national ideals of the Irish Catholics. Now Lecky, referring
to deeds of violence which took place in Ireland, writes (“History of
Ireland in the Eighteenth Century,” Vol. I., pp. 408, 409):
“Whoever will examine these episodes with impartiality may easily
convince himself that their connection with religion has, in most
cases, been superficial. Religious cries have been sometimes
raised, religious enthusiasm has been often appealed to in the
agony of the struggle; but the real causes have been conflicts of
races and classes, the struggle of a nationality against
annihilation, the invasion of property in land, or the pressure of
extreme poverty. Amongst the Catholics, at least, religious
intolerance has not been a prevailing vice, and those who have
studied closely the history and character of the Irish people can
hardly fail to be struck with the deep respect for sincere
religion in every form which they have commonly evinced.... In
spite of the fearful calamities that followed the Reformation, it
is a memorable fact that not a single Protestant suffered for his
religion in Ireland during all the period of the Marian
persecution in England. The treatment of Bedell during the
outbreak of 1641, and the Act establishing liberty of conscience
passed by the Irish Parliament of 1689 in the full flush of the
brief Catholic ascendency under James II., exhibit very remarkably
this aspect of the Irish character.”
Referring to that Catholic Parliament of Ireland, he says (Vol. I., p.
117):
“The members of the House of Commons were almost all new men,
completely inexperienced in public business, and animated by the
resentment of bitter wrongs. Many of them were sons of some of the
3,000 proprietors who, without trial and without compensation, had
been deprived by the Act of Settlement of the estates of their
ancestors. To all of them the confiscations of Ulster, the fraud
of Strafford, the long train of calamities were recent and vivid
events. Old men were still living who might have remembered them
all, and there was probably scarcely a man in the Irish Parliament
of 1689 who had not been deeply injured by them in his fortunes or
his family. It will hardly appear surprising to candid men that a
Parliament so constituted, and called together amidst the
excitement of a civil war, should have displayed much violence,
much disregard for vested interests. Its measures, indeed, were
not all criminal. By one Act, which was far in advance of the age,
it established perfect religious liberty in Ireland, &c.”
From that time till our own the Catholics of Ireland have had little
opportunity of showing whether they were tolerant or otherwise. During the
long and dreary meantime the problem before them was not what sort of
civil life they should live, but whether or how they could manage to live
at all.
So late as 1759, Lord Chancellor Bowes, in giving judgment in a famous
trial in Dublin, declared that “The law did not suppose a papist to exist
in Ireland.” I have no desire to recall the story of how toleration fared
in Ireland down to recent times. It is not necessary, and it is a
disagreeable recollection. He would be very bold or very credulous who
would think of doubting or denying what that history has been. I take up
“Thom’s Almanac” of half a century ago, and I find that so late as that
time the public offices were occupied almost exclusively by non-Catholics,
from the Lord-Lieutenancy down to the Clerkship of Petty Sessions; and I
think that it was so down to the office of the rural process-server. How
did it come to pass that Catholics were kept outside, and that
non-Catholics got within? Surely not that Catholics willingly yielded all
public positions to their neighbours! The arrangement was therefore made
by the other side. And what was the reason of that monopoly? Surely not
that no Catholic was capable of any civil position except that of paying
rates and taxes to the Crown and rent to the landlord. The exclusion was
clearly the political penalty which Catholicism had to pay for its
principles; the monopoly was the political premium which was awarded to
those of the other side.
The Catholics of Ireland have been gradually working their way towards
civil equality. But every step has been disputed. Every claim for civil
equality made by those who formed the vast majority of the population and
who bore the burden of civil duties was met with a charge of intolerance,
and with a protest against intruding religion into the affairs of civil
life. That is to say, those who had already secured for themselves
political and social privileges through religious exclusiveness raised the
cry of religious exclusiveness against the vast majority of the population
for claiming their just share of civil rights as they bore their share of
civil duties. Catholics had either to remain resigned to their condition,
or to protest against their faith being made a bar between them and civil
justice. In doing so they have not sought to intrude religion into purely
civil affairs; they rather have sought to extrude religious intolerance
which, having taken up its abode, slammed the door in their face. Thus
when Catholics claimed their civil rights it was called religious
exclusiveness; when their neighbours were privileged by religious
exclusiveness it was called civil rights.
(II) Catholic Tolerance in Practice.
Just a century ago Wm. Parnell, an Irish Protestant who knew Irish
Catholics and their history well, wrote that “The Irish Roman Catholics
are the only sect that ever resumed power without exercising vengeance.”
Let us see if he was a true prophet as well as a true historian. When he
wrote his “Historical Apology of the Irish Catholics” they were helpless,
and almost hopeless. During the past eighty years they have been gradually
regaining instalments of their civil rights. Their numerical strength
could, in nearly every corner of the country, use those rights which they
already have as an instrument wherewith to avenge the past. Have they, in
fact, used their power thus?
For the sake of saving space I pass over Government and other such
nominations. A better test of tolerance and intolerance is to be found in
the statistics of public appointments to responsible positions which are
elective. We get in that way a better key to the popular feeling.
Now, in recent centuries, and till 1842, Dublin was not allowed to have a
Catholic Lord Mayor. It elected O’Connell at its first opportunity. And
were the Protestant citizens ostracized henceforth? Since then it has had
23 Protestant Mayors and 38 Protestant Sheriffs. At present, its City
Marshal, its City Surveyor and his assistant, Superintendent Electrical
Engineer and four assistants, Drainage Engineer and two assistants,
Superintendent Medical Officer of Health, Veterinary Inspector, Collector
of Market Dues, and several other important offices are entrusted to
non-Catholics. And the Catholics form the vast majority of the population.
In Belfast, the non-Catholics are about twice the number of the Catholics.
The Corporation has never had a Catholic Mayor. Until a few years ago,
when the City wards were re-distributed by order of Parliament, there was
no Catholic Member of the Corporation. There are about 440 salaried
officials, of whom about 10 are Catholics; and that these hold no office
of importance may be seen at once in the fact that their combined salaries
do not amount to more than £800 a year; whilst the Corporation pays in
salaries about £70,000 a year. The anomaly is felt; and the apology made
for it is that the Catholics hold offices quite in proportion to the rates
they pay. It is implied that the Catholics are poor and pay little rates.
The apology is not more creditable than the anomaly it is made to explain.
It appears to be the custom in Belfast for the landlords to pay rates for
the houses rented from them; the tenants thus pay rates in their rents.
That practice nullifies the apology.
I pass now to the Counties. Co. Cork has a population of 403,000; of which
365,000 are Catholics, and 38,000 are non-Catholics. Of the salaried
officials in the County, 151 are Catholics and 40 are non-Catholics.
Co. Tipperary has a population of 160,500; of which 151,000 are Catholics,
and 9,500 are non-Catholics. There are 60 salaried officials, of whom 43
are Catholics and 17 are non-Catholics.
Co. Kerry has a population of 165,000; of which 160,000 are Catholics, and
5,000 are non-Catholics. There are 112 salaried officials, of whom 93 are
Catholics and 19 are non-Catholics.
Co. Clare has a population of 112,000; of which 110,000 are Catholics, and
2,000 are Protestants. There are 68 salaried officials, of whom 62 are
Catholics and 6 are Protestants.
So much for the South; let us pass to the North.
Co. Antrim has a population of 196,000; of which 40,000 are Catholics and
156,000 are non-Catholics. There are 65 salaried officials, of whom 5 are
Catholics, and 60 are non-Catholics.
Co. Armagh has a population of 124,000; of which 56,000 are Catholics, and
68,000 are non-Catholics. There are 50 salaried officials, of whom 3 are
Catholics and 47 are non-Catholics.
Co. Tyrone has a population of 150,000; of which 82,000 are Catholics, and
68,000 are non-Catholics. There are 52 salaried officials, of whom 5 are
Catholics, and 47 are non-Catholics.
Co. Fermanagh has a population of 65,000; of which 36,000 are Catholics
and 29,000 are non-Catholics. There are 75 salaried officials, of whom 17
are Catholics and 58 are non-Catholics. It will be observed also that in
those counties supposed to be Protestant, the Catholic population of
Tyrone, Armagh, and Fermanagh is 174,000, whilst the Protestant population
is only 165,000. In Co. Antrim only, the Protestants are in a vast
majority. And in Ballymoney, Antrim, Portrush, and some other towns of
that county, there is not 1 Catholic in any elective body. On the other
hand, I find that in Clonmel, Co. Tipperary, where the Protestants are to
the Catholics in the proportion of 1:9 of the population, they are in the
proportion of 1:4 in the Borough Council. In Kinsale, Co. Cork, where the
Protestants bear an extremely small proportion to the Catholics, they are
as 1:4 in the Borough Council.
Nine years ago, through much trouble and correspondence, I made an inquiry
into the provision made in Irish workhouses for the religious interests of
their Protestant paupers. I made an analysis of the results, some of which
I quote here from the 18th Chapter of “Catholicity and Progress in
Ireland” (pp. 346-350).
“In 1882 there were 163 workhouses in Ireland; but some have
disappeared, or have been amalgamated since then. At present there
are 48 of these in which there is _usually no Protestant_ inmate.
The Protestant Minister—
In 7 of these receives no salary.
In 1, a salary of £4 a year for attending to nobody.
In 5, £5, ditto
In 2, £6
In 17, £10
In 2, £12
In 4, £15
In 5, £20
In 4, £25
In 1, £30
There are 25 workhouses with only _one_ Protestant pauper in each, and the
Protestant chaplains receive in each £21 a year on an average. There are
12 workhouses with only _two_ Protestant paupers in each on an average:
there is a Protestant chaplain for each; they receive on an average £21 a
year. There are 12 workhouses with only _three_ Protestant paupers in each
on an average. Each has a Protestant chaplain: they receive on an average
£30 a year. There are 5 workhouses with only _four_ Protestant paupers in
each on an average: their Protestant chaplains receive an average salary
of £20 a year. There are 5 workhouses with only _five_ Protestant paupers
in each on an average: their Protestant chaplains receive an average
salary of £33 a year. There are 7 workhouses with only _six_ Protestant
paupers in each on an average: their Protestant chaplains receive salaries
of £25 a year on an average. There is 1 workhouse with _seven_ Protestant
paupers on an average: the Protestant chaplain receives £30 a year. There
are 2 workhouses with _eight_ Protestant paupers in each on an average: in
1 of these the Protestant chaplain gets £25 a year, in the other £30. In
all those workhouses I have named there are 194 Protestant paupers on an
average; and the Protestant chaplains receive a combined salary of £2,000
a year for attending them. Now nearly all the Guardians of those
workhouses are Catholics; those who pay the poor rates are nearly all
Catholics.
I do not write these facts in complaint: rather with pride. I give them as
evidence of the sort of religious “intolerance” which is practised by
Irish Catholics on those few Protestant paupers; who indeed are so few
that their having to be in a workhouse at all is not creditable to the
wealthy Protestants of Ireland. The money spent in the vain attempt to
proselytize a certain degraded remnant of the Catholic poor, if spent on
those few Protestant paupers, would make workhouse life unnecessary for
them.
(III) The Papal Decrees.
A great noise has been made about the _Ne temere_ Decree, and the recent
_Motu proprio_. They have been used to illustrate a phase of Catholic
“intolerance” which is supposed to constitute a constant danger to
society. I hope to make plain that those who have raised the cry have been
shouting into space, and that, moreover, they have been throwing stones
out of glass houses. Those laws have been made for Catholics only;
Catholics only are bound by them; therefore only they have a right to
protest if there be any cause of complaint. Or are we to understand that
Catholics are not free to have their own religious rules and usages
without the approval of outsiders? It will be answered: Certainly, but
this _Ne temere_ Decree might affect Protestants also. How? Well, it
ordains that unless Catholics get married before an authorised priest the
marriage is null; they are not married. Hence, if a Catholic and a
Protestant attempt to get married before a parson or a registrar, as the
law of the land allows, there is no marriage in the eyes of the Catholic
Church, and the Catholic party is bound in conscience to disown it. That
is what has been said; but it is not correct. What the Catholic party
would be bound in conscience to do in such a case is to set things right
by making it a valid marriage. But what if the parties will not comply
with the _Ne temere_ law? Then they go their own way, and the Catholic
Church has no more to say to them. But if the Catholic party, getting
conscience-stricken, should determine to disown it as a marriage, will not
the Protestant party be the sole sufferer? Not at all; because the
Protestant party can appeal to the law of the land for conjugal rights,
since in the eyes of the law the marriage is valid; and an attempt by the
Catholic party to contract marriage with anyone else would be punished as
bigamy. On the other hand, if the Protestant party should for any reason
determine to disown it as a marriage, the Catholic party cannot in
conscience appeal to the law of the land for conjugal rights; because
according to the Catholic conscience there are no conjugal rights, since
there is no marriage. It should be observed that, also in the case of two
Catholics, there is no marriage if they attempt to get married before any
other priest than the authorized priest. The _Ne temere_ Decree was meant
for Catholics only. It was not at all meant for Protestants, and it can
only affect a Protestant through a Catholic. Now, the Catholic Church does
not wish a Protestant to marry a Catholic. Quite otherwise. In fact,
Catholics are forbidden to marry Protestants without a special permission,
which is not given without good cause assigned. But if any Protestants
should desire to marry Catholics, they know the conditions they have to
fulfil. If they object to those conditions they are quite free to seek
some other partner less tied by religious conditions than a Catholic is.
If a Protestant say, “I like this Catholic, but I don’t like these
conditions,” the Catholic reply is simple and straight: “If you want the
Catholic you must take the conditions too; it is intolerant conceit for
you to expect that the Catholic Church should shape its discipline to make
it fit in with some possible affections which might some time or other
possess you.”
The result of all the noise made about this _Ne temere_ Decree has been
just what those who have made the noise little thought of, and least of
all desired; namely, it has left them without a shadow of excuse, or even
the semblance of a grievance. Their cry has become their nemesis. It has
so promulgated the Decree that they, no more than Catholics, can plead
ignorance of it, or of the consequence of not observing it. Hence what
they in future do in regard to it, they will do with their eyes open; and
if they count the cost they have only themselves to blame.
But if these remarks I have made help to silence the _Ne temere_ cry,
another like grievance is not far to seek. It is remarkable that, whilst
there are several Catholic marriage laws the import of which is exactly
the same as that of the _Ne temere_ Decree, we never hear a word said
about them. Here is one: A Protestant has a sister-in-law who is a
Catholic. His wife dies. His Catholic sister-in-law marries him without
the necessary dispensation. That marriage is null in the eyes of the
Catholic Church. But it is valid before the law of the land since the
Deceased Wife’s Sister’s Marriage Act was passed. That Protestant and his
deceased wife’s Catholic sister are precisely in the same predicament in
which a Protestant and a Catholic are who attempt marriage in defiance of
the _Ne temere_ Decree. There are other similar instances amongst the
Catholic marriage laws. There have been for centuries. The _Ne temere_
Decree itself is but a slightly modified form of one three centuries old.
Thus, if the _Ne temere_ cry is serious, the party who raised it have been
standing at the mouth of a volcano for generations, and have escaped
unhurt. Why then have those other Catholic marriage laws been left in
place, whilst the _Ne temere_ Decree has raised a storm? The only
difference one can see is that the _Ne temere_ Decree happened to appear
on the eve of some parliamentary elections, and the consciences of some
scrupulous persons were suddenly awakened to the danger it brought.
_Tu quoque_ is not a logical reply; but at the tail of an argument it does
not come amiss. Well, then, in England the law recognises no other
marriages than those contracted before the parson or the registrar. Let a
Protestant and a Catholic therefore get married before a priest, without
the presence or knowledge of the parson or the registrar, it is a valid
marriage in the eyes of the Catholic Church and binds the conscience of
the Catholic party; but it is no marriage in the eyes of the law. So far
the case is the exact converse of the _Ne temere_ Decree. But it goes
farther; for it holds not only in the case of a Protestant and Catholic
but also in the case of two Catholics. The law of the land will not
recognise a marriage contracted by two Catholics in their own church and
before their own priest, unless the registrar or the parson be present. On
the contrary, the _Ne temere_ Decree does not in any sense touch the case
of two Protestants. Now, Catholics think, and justly so, that a priest is
quite as qualified a witness for the marriage of Catholics as the parson
is for the marriage of Protestants, or as the registrar is for the
marriage of either. The Catholics have in this a real grievance; and they
feel it; yet their consciences have not been so wounded nor their hearts
so broken as to think of exhibiting them bleeding before their country
upon election hustings. Political consciences show strange phenomena.
What is decreed by the _Motu proprio_ has been in force since the
Constitution _Apostolicae Sedis_ was published in 1869. Yet during those
forty-two years nobody seems to have been hurt by it; and nobody seems to
have been concerned except Catholics till lately. The _Motu proprio_
obliges Catholics, under threat of excommunication not to bring
ecclesiastics before lay tribunals without the permission of their bishop.
It binds ecclesiastics equally with lay Catholics. It does not, and
cannot, touch non-Catholics in any sense; a very plain proof of which is
that it threatens with excommunication those to whom it applies. That
censure of excommunication should convince anyone that the _Motu proprio_
cannot possibly apply to non-Catholics. They are not within the Church;
and how could those be put outside it who have not been within it? It
applies to Catholics only, whether lay or cleric. But not to all
Catholics. The Holy Office issued a Decree in 1870 in which it declared
that “the excommunication does not affect subordinates, even though they
be judges.” A Catholic functionary acting in his official capacity does
not come under the Decree. It will at once then be seen how unfair are the
following words spoken by Mr. Campbell, who represents the Dublin
University in Parliament. Speaking at a meeting in Dublin on January 4th,
1912, he said of two Irish Catholic Judges: “They might be called upon any
day in the exercise of their duty to their Sovereign to put the law in
force against a Catholic priest. If they did so, _ipso facto_ they
incurred excommunication.” He thus explained the meaning of the _Motu
proprio_ for his audience, in face of the following words which he also
read for his audience. The excommunication is against “those who compel,
whether directly or indirectly, lay judges to summon ecclesiastical
persons before lay tribunals.” Thus the excommunication is against _those
who compel_ the judges; so that Mr. Campbell’s interpretation implies that
_the judges_ are one and the same with _those who compel them_. Catholics,
then, and Catholics only (clerics as well as lay) are forbidden to bring
ecclesiastics before lay tribunals, without the permission of their
bishop; which permission, the Holy Office decrees, “the bishop shall never
refuse, in case he fails to reconcile the parties.” If a Catholic (lay or
ecclesiastic) thinks that an ecclesiastic, for instance, owes him a debt,
and the ecclesiastic denies it and refuses to pay, the Catholic (priest or
layman) who makes the claim is bound by the _Motu proprio_ to have
recourse to the bishop first, in order to have the matter arranged
amicably. If the bishop fails to settle it, he is not left free to give or
refuse his consent to have the case brought before the Civil Court. The
Holy Office decrees that “he shall never refuse.” Even in those times and
countries when and where Ecclesiastical Courts existed to try the civil
cases of clerics, the purpose of the _Privilegium Fori_ was not to grant
ecclesiastics any immunity from the civil law of their country, but to
provide that in their civil cases they should be tried by an
Ecclesiastical Court. The privilege was not as to the law of the land, but
as to the court that was to try them according to that law.
What the _Motu proprio_ orders is just what Catholic instinct moves every
Catholic worthy of the name to do. In Ireland and everywhere, Catholics,
and many Protestants also, if they think they have a cause of complaint
against a priest, for debt or otherwise, make known their case first to
his bishop. If the bishop fails to compose the question, then they bring
the case before the lay tribunals; permission to do which, as the Holy
Office lays down, the bishop “shall never refuse.”
I have explained the meaning and scope of this _Motu proprio_ as though it
applied to Ireland. But according to the evidence of Cardinal Cullen, the
highest authority on Canon Law who has lived in these countries for a
century, the Caput _Cogentes_ of the _Apostolicae Sedis_ does not hold in
Ireland; and that being so, the _Motu proprio_ does not apply to Ireland,
for it is a confirmation of the Caput _Cogentes_.
What this awful _Motu proprio_ orders, then, is just what fraternal
charity, a sense of the fitness of things, even common sense, would
suggest. So befitting does the procedure ordered by the _Motu proprio_
appear to a writer in the January number of _The Review of Reviews_ that
he says, “it might very well be extended to all Christian men, whether lay
or clerical”; and he suggests that the civil authorities in England would
do wisely to take a leaf out of the book of Pius X.
As a matter of fact, something parallel to it exists in every society.
There is not an association of any kind in England, Ireland, or elsewhere,
which has not some rules which bind its members under pain of expulsion.
In Chapter VII. of his “Middle Ages,” Hallam writes:
“The spiritual Courts in England, whose jurisdiction is so
multifarious, and in general so little of a religious nature, had,
till lately, no means of compelling an appearance much less of
enforcing a sentence, but by excommunication.”
He writes in a note:
“By a recent Statute, the 33 Geo. III., c. 127, the writ, _de
excommunicato capiendo_, as a process in contempt was abolished in
England, but retained in Ireland.”
Both in England and in Ireland there are, of course, rules for expulsion,
or excommunication, in every union, society, and club in the country. But
a rule more like the _Motu proprio_ than any that I know of, is in the
constitutions of the Dublin University which Mr. Campbell represents in
Parliament. According to Letters Patent 13 Charles I.:
“All domestic differences shall be examined, and if possible
decided within the College.... He who brings another into Court,
without the consent of the Provost and the majority of the Senior
Fellows, shall be expelled from the College.”
It is in every particular like the _Motu proprio_ of which Mr. Campbell
spoke, in a Catholic city and country, as “an arrogant and insolent
decree” which “aims a deadly blow at the sanctity and security of
property.” I do not believe that he was conscious of the offensiveness of
his words. But such has been the fruit and habit of Protestant privilege
in Ireland. Some, even men of position and education like Mr. Campbell,
remain as if unconscious that the “old order changes.” They fail to fit
themselves into the change which a century has made; and “If in the green
wood they do these things, what shall be done in the dry?” Catholics,
whilst they have their own thoughts about the constitutions and rules of
other Religious Bodies than theirs, do not meddle with or question them.
The _Ne temere_ Decree and the _Motu proprio_ are, as I have explained,
for the discipline of us Catholics exclusively. We do not seek for them
the approval of outsiders. But we cannot help thinking that the diatribes
to which we have been subjected in connection with those two Pontifical
Acts have been inspired rather by political and social jealousy than by a
spirit of toleration or love of fair play. I hope that most non-Catholics
who read what I have written will be disposed to agree with me.
(IV) Some Protestant Views.
(1) A Church Of Ireland View. BY CANON COURTENAY MOORE, M.A.
It is under a deep sense of both privilege and responsibility that I
contribute this article—of privilege because I feel very sensibly the
honour done me in asking me to write it—and of responsibility because of
the service it may or may not prove to be. A word about myself may be
pardoned and may not be inappropriate.
I should know something about Ireland, as I was born in Ulster, in which
province I lived for seventeen years, and naturally I then and there
learned to know something of the manners and customs and feelings of
Ulstermen. From Ulster I migrated to Leinster, where I spent eight years
in the city of Dublin, six of these years in the University of Dublin, in
which ancient seat of learning I was for four years a student in Arts, and
for two in the Divinity School. On my ordination in 1865, I entered on
clerical life in the Diocese of Cloyne, County of Cork; in which diocese I
have remained ever since for the long period of close on forty-seven
years. Therefore I say I ought to know something of Ireland and the Irish
question; having been born in Ireland and having lived so long in it in
three out of the four provinces. Moreover, I have been a regular student
of Irish history, to some extent of the Irish language, and of Irish
Archæology, and, as an Irish Antiquary, I have seen much of my native land
in each and every Province. Strangers seem to think it very easy to make
up their mind on the Irish question—you have only to take a return-ticket
from Euston to Killarney, or from Paddington to Rosslare and the thing is
done! I once heard His Grace Dr. Healy, the Archbishop of Tuam, tell a
story about the way to acquire an English accent. He said that a certain
Dublin Alderman, with a fine Dublin brogue, crossed from Kingstown to
Holyhead; the passage was a rough one; there was much of “the wonderful
up-and-down motion, that comes from the treacherous ocean.” So much indeed
that the poor alderman lay sick in his berth in Holyhead harbour, and
returned in the same boat without landing. But—“lo and behold you, sir,”
as we say in Ireland—he came home with a fine English accent, which he
never lost in later life! Well, some English visitors seem to have the
same impression about the rapidity and facility with which they can make
up the Irish question. “God help them” is all one can say. I am really not
jesting or romancing at all! Within the present week an English literary
lady called on me to interview me. Unfortunately I was out at the time,
but she left a message to the effect that “she was going to write a book
on Ireland,” and wished to talk to me about it! She had only been in the
country a few days when she came to this conclusion! This reminds me of
the story of a certain English nobleman who, when making the grand tour of
Europe, found himself at Rome. He had an interview with the Pope of the
period. He asked him could he see and know Rome in a few days time? The
Pope replied: “You will imagine you know a good deal of it by that time.”
“Well in a few weeks?” “You will then know less.” “In a few months?”
“Still less.” “In a few years?” “Hardly anything at all.”
Well, is not this a parallel for the Irish question? It requires the study
of a life-time almost to grapple with it at all—at least in any fairly
satisfactory and complete form—in any really candid and impartial way. I
may perhaps be permitted to say that another educational force in my own
training on the subject has been, that I love intensely the country and
the people. Froude opens his charming essay “A Fortnight in Kerry” thus:
“We have heard much of the wrongs of Ireland, the miseries of
Ireland, the crimes of Ireland; every cloud has its sunny side;
and, when all is said, Ireland is still the most beautiful island
in the world, and the Irish themselves, though their temperament
is ill-matched with ours, are still amongst the most interesting
of peoples.”
This affectionate feeling should not be left out of consideration by
outsiders who wish to understand the Irish Question. It has exercised an
undying and indestructible influence upon the people of the country, and
in certain respects a most beneficial influence. For example, many
outsiders foolishly imagine that Irishmen are very volatile and variable;
in some minor respects they may be, but in the main, no—it is absolutely
otherwise. Can you find in the history of any other country greater
fidelity to her own religious and political ideals than Ireland has shown
over and over again—as we say “ever and always?”
Perhaps the preface to this paper seems unduly prolonged, but the reader
must bear with it somewhat further, as it is necessary.
An objector may say to me that I have no right to speak for my fellow
Irish Churchmen _en masse_, as regards their relations with their Roman
Catholic fellow countrymen. Well, in answer to such an objection, which
may be natural enough, there are several replies. I intend to speak from
my own first-hand, definite, personal, life-long experiences, such as they
have been. And is not the inference sufficiently fair and logical that
others of my clerical brethren, similarly situated, have had just the
same, or much the same, experiences if they would record them? I do not
claim that our Roman Catholic neighbours have been kinder to me than to
other Protestant clergy. Testimony from us in the South and West of
Ireland is more valuable than testimony from Ulster. In Leinster, Munster
and Connaught, we are brought more directly and distinctly face to face
with the Roman Church. She has a dominant, nay, a pre-dominant position in
these three provinces, and yet I hold that this vast numerical superiority
of position does not lead to intolerant or unkindly action. I believe that
there is far more real kindly feeling and kindly intercourse between
Protestants and Roman Catholics in these Irish provinces than there is in
Ulster—and, therefore, I maintain that Irish Protestant Churchmen who live
in these provinces, have a far better right to judge and speak of the
relative attitude of the two churches than the people of Ulster. For we,
who do so live, have a larger knowledge and experience and outlook than
the men of Ulster, whose views are in every sense narrower—geographically,
politically and religiously. They indeed need to be reminded of the German
proverb: “Hinter dem Berge sind auch Leute” (Behind the mountains there
are also people). We all need to study this saying. Behind the mountains
of our knowledge, of our civilisation, of our success and activity; behind
the mountains, let us also say, of our ignorance, of our pride and
prejudice, of our contempt—there are also men.
Of course it is much pleasanter to be able to feel kindly and to speak
kindly of the great majority of one’s fellow-countrymen if it can be done
truthfully, as we believe it can—than to have to say and do the contrary.
Even allowing for a certain element of unreality and exaggeration and
insincerity, is not the uniform tone of too many political speeches much
too violent and even occasionally too vitriolic? But I have little or no
temptation to err in this respect, as the bulk of what remains to be said
in this paper is chiefly concerned with facts. Two years after my
ordination, the Fenian Rising occurred; this took place in 1867. I saw
something of it, not of the Fenians themselves, but of the flying columns
which were then scouring the country in pursuit of them. The police
barrack at Kilmallock was attacked, and Protestant gentry living near
Kilfinane in the same county, viz., Limerick, left their houses for
several nights and took refuge with the Constabulary. There was at that
time living at Kilfinane as rector, the Rev. George Wren. He was, as a
clergyman, greatly beloved and respected. When some of his parishioners,
most of them gentry, were leaving their homes for police protection, the
Roman Catholic farmers in the parish waited on the Rev. George Wren at the
rectory, and begged and intreated of him not to leave it, assuring him
that “no one should lay a wet finger” on him or any member of his family.
In consequence of this interview the Rev. Mr. Wren held his ground, and
was the only Protestant gentleman in the immediate district who did so. It
was exceedingly creditable to him, and to the deputation who waited on
him. I have never forgotten this incident.
I remember well the excitement produced in Irish church circles by Mr.
Gladstone’s Church Act in 1869 and 1870; how it was denounced, condemned
and deplored; how it was described as fraught with wreck and ruin to
Protestant interests. One clerical speaker warned Queen Victoria that she
might have “her Crown kicked into the Boyne” (if she gave her Royal
assent), as James II. had. A friend of my own, a captain in the Army,
assured me he was prepared to wade knee-deep in blood to fight the Bill.
We are not unaccustomed to politicians of this type even now! Well, Mr.
Gladstone passed his Church Act, which has proved in many respects a great
blessing to the Irish Church. She gained self-action and independence
thereby; her finances have been so skilfully administered and the
liberality of her members has been so great that she has now a realised
capital of over nine millions! It is estimated that for her numbers she
is, in money, the richest Church in Christendom. None of us who belong to
her would revert, were the offer open to us, to the state of her condition
and circumstances prior to 1869—“Out of the eater came forth meat, and out
of the strong came forth sweetness.” How true that parable of Samson’s has
often proved with regard to changes which were, at first, denounced and
dreaded, and afterwards regarded with gratitude! Generally, the effect
produced on Irish public opinion by Mr. Gladstone’s Church Act, on the
whole, was in time beneficial. It removed what was at least a “sentimental
grievance” from Roman Catholics. It also taught them before very long that
the Church of Ireland could exist as a voluntary institution; and some
Nationalists from time to time have even said that the efficient and
capable management of the Representative Church Body of the Church funds
was an object lesson in favour of Home Rule.
Every one at all familiar with this subject knows that 1881 was a very
terrible year in Ireland; it is unnecessary to enlarge upon the painful
fact. Then, or thereabouts, I went to see a land-agent whose life had
several times been attempted. It was in the summer; he was writing at a
tall, stand-up desk, on the upper ledge of which lay a revolver. I sat
down by an open window to enjoy the fresh air, from which he immediately
pulled me away and deposited me in a corner of the room under shelter of a
wall, not of glass. Presently we adjourned to the dining-room for lunch.
This was also an arsenal or place of arms; a double-barrelled gun lay on a
sofa. When my friend opened a press to obtain “the materials”—Irishmen
will know what is meant—I saw therein a brace of horse-pistols. After
lunch we went out for a walk, my friend carrying his gun under his arm,
and, I suppose, his revolver in his pocket. A policeman armed with a
loaded rifle, followed a few yards in our rear. Life under such
circumstances could not have been very agreeable. Would anyone like to
revert to it? Surely not. In the same year I was visiting an Irish
landlord who was very seriously ill; his home was about four miles distant
from my glebe house; sometimes I had to go to see him by night. One
morning the doctor, who had been with the patient for several hours, was
anxiously inquired of by the ladies of the family how their father was.
“Well, all I have to say to you,” said the doctor, “is, that you may be
very thankful that your father is allowed to die quietly in his bed such
times as these.”
Well, what has improved such terrible times? Has it not been remedial
legislation in different directions—legislation respecting the Church, the
Land, and Education. Yet in all such cases remedial legislation has been
initially denounced by a certain party as “Socialism,” “Sacrilege,” or by
some equally strong expletive. And yet, what has been the result of these
so-called “Socialistic” and “Sacrilegious” measures? Has it not, on the
whole, and in the main, been good, decidedly and undeniably good? Let us
apply our Blessed Lord’s text: “By their fruits ye shall know them.” “Can
any man gather grapes of thorns or figs of thistles?” So, then, when I
look back to these past painful experiences, and see how all proposed
remedial legislation was, in the first instance, denounced and vilified,
and when I recall how the results in time have refuted all the prophets of
evil, I am quite inclined to say, is not the balance of evidence in favour
of the view that something very much the same will be the case, and will
happen with Home Rule? It is now constantly described by one leader as “A
Nefarious Conspiracy.” Of course, different Parliamentary orators have
their own favourite vocabularies, but is it not very much a case of:
“All now is wrangle, abuse and vociferance.”
“One is incisive, corrosive;
Two retorts nettled, curt, crepitant;
Three makes rejoinder, expansive, explosive;
Four overbears them all, strident and strepitant;
Five.... O Danaides, O Sieve.”
“Now they ply axes and crowbars;
Now they prick pins at a tissue;
Fine as a skein of the Casuist Escobar
Worked on the bone of a lie—To what issue?
Where is our gain at the Two-bars?”
Juvenal said of some Roman lawyers of his own day: “Iras et verba locant.”
They still do it.
Here perhaps I may with advantage introduce some remarks made by me in
Cork City on March 21st at a meeting of the County Technical Instruction
Committee on the occasion of proposing a vote of congratulation to our
Chairman the Bishop of Cloyne, on having gained a verdict in his favour in
his Libel Action against the _Dundee Courier_:
“I would like, Sir, to say a few words just in explanation of this
motion. It is the first opportunity that we have had of doing this
since the trial, and as other public bodies have passed votes of
congratulation to the Bishop, it is specially becoming that we
should do so, as he is Chairman of our Committee. I first made the
acquaintance of the Bishop in 1893, when I was making a little
antiquarian tour in the County Kildare with another antiquary, and
on arriving at Maynooth we ordered some dinner at the hotel there.
I was anxious to see Maynooth College, we went on there, and we
happened to see Dr. Browne, who was then President of Maynooth;
and he with true Irish hospitality at once invited us to stay to
dine, which we did, and I had a pleasant experience of his
hospitality and kindness on that occasion. And I must say that my
own experience of him since he became Bishop of Cloyne has always
been the same, that by tact and kindness and courtesy he has
gained our regard and respect. I think I might venture to say in
connection with the present controversy about the introduction of
Home Rule into the country—which has, of course, caused a great
deal of excitement—it would not be natural to expect that such a
measure would be received in silence, but surely it is possible
that the people who want to discuss this question should discuss
it on non-controversial grounds. I think, for example, it should
be discussed on financial grounds or on constitutional grounds,
and apart altogether from religious grounds. But I fear there are
too many controversial politicians, and that this religious
element in the discussion has not only dominated it, but has
become predominant, and is greatly to be regretted; and it seems
to me that this action against the _Dundee Courier_ is an
illustration of this, and that the Bishop found it necessary to
vindicate his character against unfounded charges which were
capable of being made political capital of. It seems to me that
the argument comes to this, that people raise controversial
arguments which involve the very serious charge that the lives of
the Protestants and the property of the Protestants in the country
would hardly be safe under the new Parliament. Now this is a very
serious indictment, and I wonder whether the people who make this
consider its seriousness and the injury it does to both sides. I
think it does those people who make this charge much harm—it tends
to make them censorious and uncharitable, and it naturally
embitters the people against whom this charge is made—that is,
four-fifths of the population of the whole country. I am afraid
that there are too many of these controversial politicians at
work. I have lived all my clerical life in the County Cork for
over forty years, and my own impression when I hear charges of
this kind flung broadcast about the people of Ireland is this—that
the people who make them really can’t know how happily, for
example, we get on in the province of Munster, how much kindness
there is, and how much real good feeling—genuine good feeling
prevails between Protestant and Catholic.”
“I can certainly say for myself with perfect truth that during my
long residence in this county, for a period of over forty years, I
never received anything but kindness and consideration, and during
that long period the county has been agitated very seriously. I
remember the Fenian Rising in 1867, the Church Act in 1869 and
1870, and I remember other troubles in the county, but, personally
speaking, I never received anything but kindness and
consideration. A short time after my ordination I was told by a
senior clergyman of the diocese how to act towards the people. He
said: ‘I will give you a recipe—be friendly to the people in this
county and you will find that they will be friendly to you,’ and I
certainly found them so without a single exception or
contradiction.”
The Bishop was from home when this meeting took place, but on his return
he wrote me a very kind and complimentary letter from which I quote a few
sentences:
“Bishop’s House,
“Queenstown.
“_April 2nd_, 1912.
“DEAR CANON COURTENAY MOORE,—Allow me to congratulate you most
sincerely on the tone and character of your speech, which has done
much to foster among us all, charity, peace and brotherhood. I
have heard all manner of men speaking of your action on that
occasion in the highest terms of praise.”
“When there lies round about us so much good to be done by our
common united forces, why should we spoil the opportunity of doing
good by senseless and generally ill-founded suspicion and
quarrels?
“Yours faithfully,
“ROBERT BROWNE.
“_Bishop of Cloyne_.”
I desire to add an extract here from a letter written to me by the late
Rev. Father Horgan, P.P. of Kilworth, Co. Cork. He was a very cultivated
man; he had been for eight years in the Irish College at Rome and had also
made a voyage round the world. He had “read in the book of the world,” and
in addition to his extensive and accurate knowledge of theology he had
acquired a great knowledge of Art from his residence in Rome. About two
years before his death he wrote me a very touching letter from which the
following is an extract:
“I have given up all thoughts of change of place. My outlook and
my hope are homewards, and may the good God support and strengthen
us both to and through the end which awaits us to our rest.”
I fear there may be too much egotism and too little reticence in my
placing such kindly and even confidential communications as these before
the public, yet my motive for doing so is simply to show how much real
kindly feeling and friendly intercourse exist between members of the Roman
Catholic and Anglican Churches in Ireland, especially in those districts
where the vast numerical predominance of the former Church might, as some
suppose and suggest, provoke her to intolerance, which in my opinion is
not the case at all. Of course I do not profess to do more than offer a
general opinion founded on my own personal experience, and on my knowledge
of Irish history in the past. But when I look back upon the past and think
for example on the state of Ireland during the “Tithe Wars,” as described
by such a writer as Lecky, and on my own recollections of Ireland in the
days of the Land League, and compare with these periods the present happy
and peaceful condition of the country, and ask myself what has produced
such a blessed and beneficial change, is not the answer plain enough that
it has been the progress of healing and remedial legislation? Well, then,
if impending legislation in the direction of Home Rule is a further
concession to national sentiment and likely to prove a further development
of and outlet for national knowledge of what the country requires, and an
application of her own energies and resources for the purpose, why should
one dread and deprecate the experiment? I have lived through too many
Irish crises to be afraid of another. I do not venture to speak
dogmatically, still less despairingly, but I feel on the whole that this
new departure will tend to good like its predecessors. I am inclined to
ask, why should the Roman Catholic people of Ireland persecute
Protestants, if Home Rule be granted—some will say, oh, because they will
then have greatly increased power and influence in their own hands, and
they will therefore be tempted to use it, and will use it in this
direction. I find it hard to believe this, I am very slow to believe it,
judging from my own experience of Ireland. May I not put it in this way
plausibly and reasonably enough: why should not such an extension of
self-government gratify the Irish National Party, and produce even better
and still more kindly feeling towards their Protestant fellow countrymen
than already exists? If we must make a calculus of probabilities in such
an event, ought we not to take into account the mollifying influence of
the possession of increased powers, just as much as the temptation to
misuse them in the direction of intolerance. Besides, will it not be the
policy of the leaders of the Home Rule movement, should it become an
accomplished fact, to conciliate—much rather than to coerce—those who
oppose the movement? As Mr. Redmond has recently said, “some repudiate
Ireland, but Ireland will not repudiate them.” We may for a time in the
near future have a period of some unrest, anxiety, possibly even danger,
but we must hope that this will pass. Certain Irish proverbs show
something of the tone of the national mind. Here are a few: are they not
very instructive and descriptive?
“One must cut the gad nearest the throat.”
“The first thread is not of the piece.”
“A small share of anything is not worth much, but a small share of
sense _is_ worth much.”
“It isn’t day yet.”
“Nil lā fòs e.”
All these proverbs show that Ireland has “learned to labour and to wait:”
“Look not mournfully into the past,
It comes not back again ...
Wisely improve the present, it is thine.
Go forth to meet the shadowy future without fear and with a manly
heart.”
(2) A Presbyterian View, BY REV. J. B. ARMOUR, M.A.
The question of Home Rule for Ireland has been discussed from all sides
now for more than a quarter of a century: and at present it holds the
field. Everything from the constitutional, commercial, and religious
aspect of the problem has been said in an italicised form. The history of
the controversy has shown considerable change of view, at least on the
part of the opponents of the measure, and the bitterness against the idea
has become in many cases a mere scream, a sign that the foundation of
their objections to the proposal is giving way. At the first mention of
Home Rule, the majority of the constitutional lawyers entered the lists,
and satisfied themselves that the measure would violate the constitution,
lead to the dismemberment of the Empire, and the final separation of
Ireland from the Crown. The stipendiary politician, of whom we have many,
especially in the North of Ireland, said: “I thank thee, O Jew, for
teaching me that word,” and rang the changes on the word “separation,”
dubbing every adherent of the Liberal cause as a separatist. The saner
constitutional lawyers have come to the conclusion that the idea of
separation has no foundation in fact, and could not, if mooted, have the
slightest hope of success. A community which has not the power of raising
an Army or a Navy could hardly venture on rebellion. Ireland is largely an
agricultural country, and, seeing that the farmers in a few years will be
sitting under their own vine and fig tree, possessors as well as tillers
of the soil, it is almost unthinkable that even five per cent. of the
population would think of risking their all in an enterprise which could
not be successful, and, if successful, would close against them their best
markets. The Irish people are sometimes credited with a double dose of
original sin and folly, but their sense of humour would save them from
such a cut-throat policy. The soldiers they have sent into the British
Army, taken from the lower strata of social life, have proved as loyal to
the British Crown as the Scotch Highlanders. The Curragh, and other camps
for soldiers in Ireland, will not be broken up when Home Rule comes. The
fear of Home Rule leading to separation has receded to the background of
the controversy, and is now the monopoly of obscure politicians.
I am asked to say something on the question from a Presbyterian point of
view. It is a little difficult to state the number of those in favour of
the measure, and of those not actively opposed thereto, especially as
those who pose as exponents of Presbyterianism have set themselves, with
considerable success, to destroy the right of free speech and to ban the
right of private judgment as a pestilential heresy—two of the essential
factors in living Protestantism. To hamstring these principles is to leave
Protestantism with a name to live, though it is dead. These Anti-Home
Rulers have been threatening, and are carrying out their threat, to
boycott any parson who shows signs of scepticism about the infallibility
of their _credo_. Boycotting is a serious offence, if practised in any
form in the South and West of Ireland, but it is the eleventh Commandment
of the Anti-Home Rulers among the Protestants, and is being observed with
greater strictness than any of the Ten Words. Under the reign of
TERRORISING PREJUDICE it is not easy to indicate the number of those,
especially in the Presbyterian Church, who refuse to make Anti-Home Rule
an article of a standing or falling Church. But the drastic methods used
to repress free speech, and the right of private judgment on a political
question, are indications that the secret disciples of Home Rule are not
only a large but an increasing number. As one who has believed in Home
Rule for many years, as one who, while treated with courtesy and
kindliness by leading Unionists, has been thrice stoned by their noisy
followers, I venture to give an _apologia pro mea vita_.
(_a_) I accept the principle of Home Rule for Ireland because it is the
principle of the Presbyterian Church Government applied to secular
affairs; a principle which has worked well in the Colonies where there are
mixed races and religions; a principle which is a fundamental one in the
United States of America; a principle which, truly democratic, has proved
itself the salt of social life wherever applied, and, in the case of our
Colonies, has been a link binding the Colonies with hooks of steel to the
British Crown. Why or how it will lead to red ruin and the breaking up of
laws in Ireland is not very clear, save to the “dryting prophets” of the
dolorous breed. As a matter of fact, that principle of Protestantism was
suggested to the Catholics by Protestants. The idea of Home Rule for
Ireland was bred in the brain of some Fellows of T.C.D. Isaac Butt was its
Cicero, and Parnell brought the idea into practical politics. Home Rule is
the child of Protestant parents, and its adherents in all the branches of
Protestant Churches are many. All the Unionists of the saner type admit
the common sense of the principle, and they say that if Ireland were
Scotland they would have nothing to say against an Irish Parliament for
purely local purposes. But they insist that a true principle, if
administered by Irishmen, would lead to a reign of terror and tyranny. The
answer to that is this. The Conservative Government has already granted
the half of the principle in the establishment of County Councils, which
Lord Salisbury said would be more mischievous than Home Rule pure and
simple—though in spite of his _ex-cathedra_ opinion he set them up. The
Irish Conservative papers at the time said bitterly that the Councils were
the half-way house to Home Rule. In existence now for years, they have
worked wonderfully well without a tithe of the evil predicted to follow in
their train. People argue on the question as if the Irish representatives
would never take a statesmanlike view of any matter for the public good,
and as if Protestantism would have no share in the deliberations of an
Irish Parliament with a fourth of the representatives in Dublin
Protestants, and with an upper House nominated with a view to the
protection of minorities. The belief that democracy in Ireland would
become a persecutor of Protestants and a robber of the commercial classes
can only arise in the minds of those who hate democracy and all its works,
though the democratic principle wherever tried has been the parent of much
that is good in social life. It is becoming the conviction of the thinking
portion of the Protestant world that the question MUST be settled by the
one party or the other on lines satisfactory to Irishmen generally; and
notwithstanding the whirling words uttered by the landlords and their
entourage at Balmoral, it is firmly believed that Mr. Bonar Law would like
to have a hand in establishing an Irish Parliament for Irish affairs.
(_b_) Home Rule would undo to a large extent the evils of the paper Union
of 1800, modifying racial animosities, introducing a new spirit of
patriotism and healing the sores of long standing. The means by which the
Union of Ireland with England was effected were so destructive of
everything moral in political life that every thinking man denounces them
as infamous, and they are without a defender past or present. It is
tolerably certain that 90 per cent. of the Protestants of Ireland,
including a large number of the landlords who refused to be bribed, were
as bitter against the destruction of the Irish Parliament as their
descendants are against its restoration. Listening to the harangues
against an Irish Parliament, one can only conclude that the applauding
auditors regard their ancestors as fools. To have a dance on the graves of
one’s ancestors may be a new amusement, but it is hardly respectful to the
memory of brave men whose opinions of the hurtful effects to Ireland from
the Union and the loss of a legislature have been fully justified by
events. Nobody can say that the Union has been a success. For fully
seventy years of the nineteenth century the government of Ireland was a
legalised tyranny, the whole political power of making and administering
laws for Ireland was in the hands of the landlords, who were allowed to
rob and spoil at their will the Irish tenants, Protestant and Catholic. A
tenant’s Protestantism did not save him from a rack rent; it often
increased the rack rents. For generations the tenants of Ireland had to
pay between five and ten millions beyond what was just and fair, and those
millions might as well have been cast into the Irish Channel as far as
bringing any benefit to Ireland was concerned. The Imperial Parliament is
heavily in debt to Ireland for the spoliation of the Irish farmers and
labourers which it permitted. Irishmen of all creeds, as they look back on
a long spell of slavery, have no right to join in singing pæans to the
Union. If changes were made in the laws bringing a modicum of justice to
Irishmen, giving them a right to call their votes their own, and a right
to part of the property they created, the predecessors of the Unionists of
to-day have no claim to credit for the changes, as they fought with the
same savageness they are showing towards Home Rule against the
introduction of the ballot, and took as their motto “tenants’ rights are
landlords’ wrongs.” The thanks of Irishmen are due to the Liberal Party,
led by Mr. Gladstone, and backed powerfully by the Nationalist Members.
Unionists of every colour are dwelling on the prosperity of Ireland,
quoting statistics about the tremendous increase of sheep and swine. They
forget two things, one of which is that Ireland since the Union has lost
50 per cent. of its inhabitants, but they say “What of that? We have a
large increase of sheep and swine, the true index of a nation’s
prosperity.” The Founder of our faith did not agree with the Unionist
conception of the relative value of sheep and men. He said: “How much is a
man better than a sheep,” a saying which covers an Irish Catholic as well
as a Protestant Home Ruler. Men are better than sheep, Unionists
notwithstanding. Then they forget that Ireland’s prosperity, whatever it
is, began with Mr. Gladstone’s legislation, which the Conservatives held
would ruin the country and break up the Empire. His legislation was the
introduction of the democratic principle into politics, and democracy has
proved itself worthy of acceptation. Home Rule is the extension of the
democratic idea, and in spite of all that has been said in strident tones
against the measure, its acceptance will tend to social health and wealth,
and not one hundredth part of the evil its opponents associate with its
passing can result therefrom. The prophecies about the evils resulting
from Liberal legislation have been falsified in every instance. The Ballot
Act would have upset the Throne, according to the Tories, but the Throne
is on a firmer basis now than it has been since the days of the Conqueror.
The disestablishment of the Irish Church was to ruin religion, but after
more than forty years religion in the Episcopal Church of Ireland is
healthier than ever. Home Rule will “heal the breaches of many
generations.”
(_c_) Home Rule in Ireland, so far from ruining Protestantism, will give
Protestantism a chance of being judged on its own merits. _Hitherto
Protestantism has been handicapped by its political associations._ The
system so long in vogue of compelling the Irish peasant to pay tithe for
the support of an established Church where the peasant never worshipped,
evoked the dislike of the majority of our countrymen for Protestantism and
all its works. If that cause of active hatred was removed, the fact that
Protestantism was still the religion of the majority of the landlords who
demanded more than their pound of flesh from the tenants did not commend
that form of religion as a gospel of love. Then the fact, so evident
still, that the bureaucracy which is ruling Ireland is largely Protestant,
the highest positions of dignity and emolument in connection with the
State machinery being held, not by Protestants of all sects but by those
belonging to a certain sect, has not been conducive to unprejudiced views
of Protestantism as a religious system. The fear that the management of
the State machinery will not remain in the hands of the descendants of the
ascendency party is perhaps the strongest factor in opposition to Home
Rule. As far as the Presbyterian Church is concerned, its members cannot
possibly under Home Rule have a less share in the offices of emolument and
dignity than they have had all down the years from 1800 to 1912.
Protestantism will enter on a new career as a spiritual rather than a
political force, and will prove its right to have its share in our
country’s welfare. Persecution for conscience sake is a game played out,
as the practice of persecution for religious opinions has hurt the
persecutor more than the persecuted. Persecution cripples industry, and,
as the world has become very practical, fears of persecution are to be
largely discounted, especially as it would be rather difficult to
persecute the fourth of the inhabitants. _Some_ of those who are
exploiting the persecuting bogey for political ends have not much religion
to persecute. The fears of a militant Catholic Duke who hates Home Rule,
and who is credited with intriguing at Rome against it, ought to modify
the fears of timid Protestants who urge that Home Rule must necessarily
mean Rome Rule. To their credit, Irish Catholics, alone in the Catholic
world, have never been known to persecute for religious beliefs. A martyr
for conscience sake has never been heard of in Erin. On April 11th of this
year, a letter was addressed to Mr. Redmond, signed by the leading
Protestants of Dublin, in which they assert that Protestants have always
been treated with courtesy by their Catholic neighbours in the south and
west, and in which they repudiate the idea of persecution in the future.
They send Mr. Redmond a considerable subscription for his fund as a proof
that their letter is not words, but an expression of well-grounded
conviction. I have no fear for true Protestantism in the future, either in
Ireland or elsewhere, though political Protestantism has had its day.
(_d_) Instead of diminishing, Home Rule will increase, the commerce of
Ireland. It is curious that, at all the Conventions called to denounce
Home Rule, the fear of the ruin of commerce has been more prominent than
the fear of the destruction of the Protestant religion. They have been
reversing the great rule of life “Seek ye first the Kingdom of God and His
righteousness and these things shall be added unto you.” So obviously has
the commercial side been thrust into the front rank of this controversy
that a cynical friend—worthy to be a brother of the Member for Sark—has
suggested that the meetings should have been opened by a hymn to commerce:
“O God of Commerce help us, for the man from Waterford intends to cut down
your groves.” A more fantastic idea or one more devoid of all probability
never took possession of men. Democracy has always been favourable to
commerce, and commercial prosperity follows in its train. To imagine that
a Parliament in Dublin would heap taxes on the rich is unthinkable, as any
taxes on Ulster would weigh as heavily on other parts of Ireland. The
Irish people of any creed are not fond of paying taxes, and one might take
it for granted that a change in the administration of Irish affairs will
not necessitate increased taxation. The administration of the Government
machinery in Ireland is the costliest in any country, and is bound to
decrease largely as the country settles. The cost of bills promoted by
Irish Corporations for needed corporate improvements is enormous, and it
frightens social reformers from attempting to get things which stand in
the way of public good set right. No statement was ever further from the
truth than that which is made so often, that the Imperial Parliament is
ready to amend every real Irish grievance. There are hundreds of necessary
reforms which would contribute to the prosperity of the country. These
cannot be attempted because of the cost and the difficulty of getting them
discussed in the Imperial Parliament. If settled in Dublin, they could be
better done at one fifth of the expense. The Commerce of Ireland stands to
gain by Home Rule. An increase of commerce always leads to a spirit of
tolerance.
To those of my fellow religionists who are frightened by the very
term—Home Rule, I would say “Who is he that will harm you if ye are
followers of that which is good?”
(3) A Nonconformist View. BY REV. W. CRAWFORD, M.A.
It must be a matter of constant surprise, to those who have been
accustomed to distinguish political from religious questions, to find
religion for ever obtruded into discussions of the Irish problem. Can’t
men follow their religious convictions under any form of government? they
will impatiently cry; why then complicate an already difficult subject by
importing considerations on which some men appear always to be least
reasonable? But it may as well be recognised at once that “religion” is
generally at the base of the opposition to Home Rule, and that the British
government of Ireland, as it is responsible for that peculiar feature of
the case, must in all equity find a solution of the problem and a remedy
for those evils which have embittered Irish life for centuries, and which
to-day stand as the one great obstacle to England’s last act of reparation
for the wrongs of the past. An alien Church has been disestablished; a
tyrannical land system is at enormous cost being revolutionised; and now
the traditional animosity of Protestant to Roman Catholic, manifested in
the general opposition of the Churches of the Reformation in Ireland to
the demand for Home Rule, and enforced by every argument which the history
of centuries can afford, must be dealt with.
The errors of a dark past cannot be undone; but each successive measure of
conciliation has brought increased contentment and prosperity to the
country; and, sure as there is a God in heaven, the repeal of the last and
greatest wrong, an Act of Union which no honest historian can defend, will
be the harbinger of lasting peace. To deal at once with the Protestant
attitude to Home Rule, the Churches in an overwhelming majority stand
solid against it. The opposition is confined to no class, being, if
anything, more bitter and unreasoning in the lower grades of society. It
is impossible to give any accurate estimate of the number of Protestant
Home Rulers, and the much advertised totals of 95 to 98 per cent. of
Unionists are mere fictions, as there never has been a poll taken on the
question; and for easily understood reasons those in favour of suspected
or unfashionable causes are slow to declare their opinions or convictions.
Liberalism is essentially “vulgar” in Ireland; and Nationalism is taboo in
all polite society. That exclusive clique, among whom heredity, tradition,
and “Church principles” reign supreme, has had a long ascendency in
Ireland. In affluence amid poverty, with every advantage of education and
influence over the unprivileged many, their pride has been to stand aloof
from popular causes, and to decry every agitation for redress. Isolated
Liberals, too few and scattered to form a community, have had to lie low,
or risk their social position and business prospects. Of late years there
has been some access of courage, and an increasing number in all
professions and trades, except those directly dependent for support on the
upper classes, have greatly ventured in taking a stand on the people’s
side. Among the younger generations, the choicest spirits, true followers
of Davis Emmett and Fitzgerald, have always been found on the popular
side; but, on the whole, heredity prevails, tradition rules, and
convention, under the guise of religion and Empire, drills the Protestant
mass on the side of Unionism.
Ulster is the crux of the Home Rule problem; and Protestantism is the
_raison d’étre_ of its opposition; as we are being ever reminded by Church
assemblies, Orange lodges, and political orators whose interest in the
welfare of so Puritan a faith is admirable indeed, and full of promise for
their future. The “religion” may sometimes appear to be of a peculiar
political cast, and difficult to reconcile with ordinary Christianity; but
such as it is, in it a serious fact has to be reckoned with. Its genesis,
as well as the present condition of Ireland, can be understood only in the
light of the history of the last four centuries. The attitude of
Protestantism generally does not need a separate discussion, being marked
by the same characteristics (as it originated, for the most part, in the
same events) as that of the North of Ireland. It is in the confiscations
and plantations of the seventeenth century that the origin of political
Protestantism is to be found. That nefarious plan of conquest and
government was old as the Normans; but it is to the later phases of it
adopted by the English rulers from James I. to Cromwell that the
establishment of the Protestant races and families now in possession of
the land may be traced. Recollect that the planters were English and
Scotch Protestants put in possession of the lands and homes of Irish Roman
Catholics, who were relegated to Connaught, and farther, or held in
complete subjection by the conquering race. Their religion was proscribed,
and all civil rights were denied them. No doubt the object was rather to
extinguish a nation, than a creed; but the fact remains that in his
paternal solicitude, “the interests of His Majesty’s _Protestant_ subjects
were his greatest care, and must first be provided for” (17 & 18 Charles
II.); and the “mere Irish” were sacrificed for the purpose. The
“settlements” of Ireland resulted in the fact that to a very large extent
the history of Ireland until to-day is involved in the land question, and
in the doings of contending religious factions.
Thus favoured by the State, and supported in their armed possession of
property and ascendency, the Irish Protestants developed at once the
masterful qualities so natural to the British in relation to subject
races, loyalty to their benefactors whose garrison they were, stern
adherence to the religion which was the badge of their predominance, and a
firm determination, at all cost to others, to maintain a state of affairs
so favourable to their welfare here and hereafter.
To hark back thus to a distant past, seeking the origin of the events of
the present, may appear unnecessarily provocative of bad feeling. It is
pleasanter to dwell on the social amenities and Christian charities which
have often marked the relations of Roman Catholic and Protestant
neighbours, and do so more than ever to-day; but in view of the present
struggle they are merely misleading accidents, and the intolerant spirit
that displays itself in threats of armed resistance, or in the “Ulster” of
Rudyard Kipling with its:
“The faith in which we stand,
The Laws we made and guard,
Our honour, lives and land,
Are given for reward.
To Murder done by night,
To Treason taught by day,
To folly, sloth and spite,
And we are thrust away.”
is more truly characteristic of the historical fairness and temper of that
past in which we seek the origin of the problem now confronting the
British people. The history of the past dominates minds on both sides of
the conflict. Peasants have very long memories, and traditions wrought
into every fibre of their being control their outlook on current events in
a way quite inexplicable to those who enjoy a wider range of vision and
are occupied with modern interests. The horrors of Scullabogue and the
heroism of Saintfield are still recounted with vivid detail in the cabins
of Wexford and Down; and the relative condition of the two nations in
Ireland must be radically altered before the bitter memories of the past
and the passions they evoke in the name of religion, will cease to
frustrate all movements toward peace and progress. The mention of “two
nations” will be eagerly seized by opponents as a fatal objection to the
establishment of a native government. And so it would be, if the
differences were ineradicable in their nature, or agreement on the
principles of government impossible between men of different faith in
Ireland; but the past has abundantly proved that neither supposition is
true. In every century as men have been uninfluenced by the machinations
of party leaders, or freed from clerical control, they have agreed to
struggle for the good of their common country. Presbyterians have led “the
rebels” in many a bloody fight, the liberties of Ireland were never more
gloriously vindicated than in the Protestant Parliament of Grattan, and
the latest struggle for legislative independence has found its earliest
and most trusted leaders among the Protestant gentry. “More Irish than the
Irish themselves,” there have always been found some, yielding to the
glamour of Irish climate, character and life, who have forgotten the
animosities of religion to combine in prayer and sacrifice for the good of
their adopted country. Further, the principles on which the Home Rule
demand is based are those professed by men of every creed in the free
countries of the world, and in Ireland, too, when men are not blinded by
prejudice or traditional fears. The two nations will be welded into one;
and “Ireland a nation” will become something more than a patriotic toast,
when, for the first time in history, the representatives of all creeds
form its Parliament, for Ireland can as ill afford to lose the dour
virtues of the Ulster-Scot as of the most dreamy Munster Celt.
The refusal to recognise Irishmen’s right to Nationality, when English,
Welsh and Scots are “nations” is a curious relic of the old attitude
towards(165) “England’s oldest foe.” They inhabit, at all events, one
land, and it is an island. A people variously constituted, they breathe
its air, cultivate its soil, speak the same language with even a brogue of
their own, enjoy the usual intercourse of ordinary human beings in social,
commercial, educational and political pursuits, with common interests,
problems, difficulties, and aspirations (_pace_ Ulster). They have a
history more ancient than that of Saxon England, and a continuous
Christianity as devoutly held for seventeen centuries as in any country of
Europe; they have marked characteristics, admirable or otherwise,
according to taste and temper, but which the world of art, literature and
religion seems to value. But because their ideals do not commend
themselves to some thrifty settlers on their lands they are to be denied
the status and privileges of a nation.
In any attempt to reach the truth as to the justice and expediency of
granting Home Rule to Ireland, it is absolutely futile to waste time in
answering the stock arguments of party platforms, special pleading to
support a foregone conclusion, half-truths backed up by most remarkable
incidents, “fresh in the memory” of the speaker, or invented by his heated
imagination. To contradict falsehoods, debate plausible conclusions, or
quote instances to the contrary is equally vain, for the distinction
between _propter_ and _post hoc_ is often as inscrutable to the ordinary
mind in politics as it is in medicine. We must fall back on recognized
principles; and leave it to our opponents, on whom the burden lies, to
show reason why these should not be applied to Ireland as to other parts
of the British Empire, or why Irishmen, because mostly Catholics, are to
be refused the natural rights of freemen.
“What in the world do you want?” is the cry indignantly repeated in
Belfast conventions, as if it had not been answered a thousand times.
Well, once more; it is self-government, so far as that is compatible with
the interests of the Empire, to which Ireland belongs and must still
belong unless a mighty convulsion of nature puts it elsewhere. It is the
right of every civilized and progressive people, the grant of which to its
dependencies is the glory of the British Empire, and in preparation for
which it governs its subject races in India or Africa. Is Ireland less fit
after nine centuries of English government to rule itself on
constitutional lines than Canada or the South African Union? Possibly it
is; for the centuries have been a weary apprenticeship in misgovernment
rather than in constitutional methods; but all the more surely does the
long experiment stand condemned, and it may well give place to saner
methods. As in personal, so in national life, the sole condition of mature
development is responsibility. The father or ruler who jealously denies it
to one come to years of discretion is a bungler or a tyrant, ignorant of
the first principles of education. For all these centuries the Irish race
has been in leading strings; and those most guilty of multiplying and
tightening the bonds are naturally the enemies of its independence and of
the only method ever discovered by God or man to secure the growth of
virtue, the acquisition of strength, or the fulfilment of personal and
national promise. Experience is the best, the only, teacher of practical
politics; and the mistakes and losses in life incurred by folly or
ignorance are our best discipline. To charge a people with incapacity who
have never been trusted with power is the resort of stupid malice.
Irishmen have vindicated before the world their fitness to fight its
battles, or command its armies; as captains of industry they have led in
every land, and the British Empire above all is indebted to the statesmen,
proconsuls, travellers, scholars and divines that have issued from the
race. What a people to be denied the elementary rights of self-government!
If Unionists are sincere in deploring the absence of a true spirit of
citizenship in the Irish, what have they ever done to encourage it?
Sympathy with men’s difficulties, appreciation of their virtues,
co-operation in their efforts, Christian charity and trust—these, and not
suspicion, distrust, misrepresentation and opposition, should have been
the Protestant contribution to the growth and happiness of a people, whom
in private life they themselves always admit to be generous friends and
neighbours.
Self-government must be based on representation, and the right of
majorities. Recognized universally in the Empire, this simple dictate of
justice is to be denied to Irishmen in their own land, because the great
majority is Roman Catholic. “It is not constitutional” said Gladstone in
1886, “to refuse the demand of five-sixths of the duly elected
representatives of a country”; and ever since then the representation has
never changed nor has the demand abated. That it is resisted in the name
of Religion, not Politics, we are not allowed for one moment to forget;
and no one in Protestant circles is unfamiliar with the assertion, how
ardently Home Rule would be welcomed if it were not for the Priest in
politics and the dread of “Rome Rule.” But let it be recognized that under
free institutions it is the right of the majority to rule, irrespective of
their religious creed; and that to deny that right in Ireland is to
establish a tyranny of the minority—an oligarchy in these days of
Democracy! Nothing can exceed the sincerity of men, good but blinded by
prejudice, when on Belfast platforms they declare their desire for
equality and hatred of ascendency. But what a ludicrous fallacy they fall
into when with the same breath they assert their resolve never to submit
to the Government of the great majority of their fellow countrymen. In
other words they, a small minority, contend for a union with the
Parliament of another country for this express purpose, that by the aid of
its votes they may override the unanimous wish of three-fourths of the
people of their own land. This is the very gist of the Anti-Home Rule
demonstration in Belfast on April 9th. It was not Irish in any true sense.
The platforms crowded with sixty members of Parliament representing
British Constituencies, presided over by noblemen such as a Grand Master
of Orangemen and a great coal owner who has practically ceased to be an
Irish landowner, addressed by eminent counsel who have transferred their
services to the English bar for reasons best known to themselves,
ex-ministers and aspirants to office in a Unionist administration—it was a
brave show of party political force; but nothing can hide or minimize the
fact that it is all avowedly an effort to support and intensify the claim
of about half the population of Ulster, and one-fourth of the population
of Ireland, to resist and overthrow the rights of Irishmen to the
privileges of representative government. If the Unionists of Ireland
sincerely desire equality and disavow ascendency in their own country, let
them prove it by being willing to accept the conditions of life and
legislation naturally imposed by the will of a majority, in the discussion
of which they will possess and exercise a fair, or according to their
ability, a preponderating degree of influence. But let them cease to
demand in their country the predominance of social, political and
religious ideals, natural perhaps to England and Scotland now, but alien
to Ireland, and secured only by foreign, that is non-Irish, votes.
The representation of minorities on a complete system of proportional
voting is an absolute necessity in Ireland. Considering the number of the
population, there is very marked and wide-spread variety of opinion. The
Orangemen of the cities are often democratic Radicals, however much evil
associations may at times corrupt their good manners; Catholic Irishmen,
even the clergy (notwithstanding the _semper eadem_ cry), are sharply
divided by lines of severance that will appear when the present unnatural
combinations pass out of sight, Unionist and Nationalist becoming
meaningless; Nonconformists here, as elsewhere, differ from Episcopalians
on important subjects; Molly Maguires, Sinn Feiners, Gaelic Leaguers have
something to say as regards Irish life worth hearing; and all must find a
voice in any true representation of the country’s thought and purpose. The
United Kingdom, too, probably needs such a reform in representation, and
cannot do better than witness the trial of the experiment on the political
body of the sister island.
It is on such fundamental principles of government the argument for Home
Rule stands, and Liberalism at all events would be untrue to its very
genius in hesitating to confer the boon. Irish Home Rule has been the
touchstone of Liberalism, and it is not by any accident that Unionists,
who abandoned their old creed to refuse Ireland’s plea, became arrant
Tories, and have ceased to exist as a political party.
The objections made by Protestants are formidable and specious. They
appeal to passion rather than to reason; they exploit religion in
opposition to Christianity; they ignore history and flourish on
journalism; they forget humanity’s claims in their zeal for sectional
interests.
The stock argument in Belfast appears to be that in the interests of
“Empire” Home Rule is impossible. Yet Ireland was under the British Crown
when 42,000 volunteers were enrolled under Lord Charlemont and the Duke of
Leinster to protect her shores from foreign foes; the stigma of the word
“Separatist” has been repudiated by every responsible Irish statesman; and
so long as Britain’s naval and military power lasts, the secession of 4
millions of people within one hour’s sail is an absolute impossibility,
should any one desire “the dismemberment of the Empire.” Let candid
Englishmen consider a simple question; which is the more likely and the
more intimidating, menace to the Empire: a discontented, disloyal and
impoverished Ireland, or one proud in its self-dependence, grateful to its
benefactor, and united by every consideration of mutual protection and
benefit? Or which will be of most credit to Britain in the estimation of
her Colonies and of the civilized world?
Timid Ulstermen deplore “the loss of their birthright in the Empire”;
their civil and religious liberties, they say, are imperilled, their
commercial prosperity is sure to suffer. It is hard even to imagine the
conception they have formed of their countrymen. Is it as fools or rogues,
slaves or tyrants, they wish to caricature the inhabitants of the land, in
which they so reluctantly dwell, for the delectation of ignorant
foreigners? For none other can be imposed on by such diatribes. Are
Irishmen engaged in a struggle for 150 years to gain independence and the
rights of men, to signalize their victory by denying civil and religious
liberty to their fellows; or are a people whose own industries have been
ruined in the past by legal restraints on trade, whose enterprise and
efforts to establish new industries and foster old ones are being rewarded
with a few gleams of prosperity, dull or wicked enough to wish to injure
commercial or manufacturing triumphs in the north of which they are proud?
Ask the commercial travellers from Ulster, who enter every town in
Ireland, whether their wares are scouted and themselves insulted because
of Orange bluff or threats. No! Irishmen are neither fools nor bigots.
The ordinary method of producing prejudice on these topics is to recount
the crimes and outrages that have darkened the past of Irish agrarian
life. No one can deny their existence, or palliate their enormity. They
were the inevitable incidents of war; one of the most bitter ever waged
over such a period of years. It was a war of rebellion against
misgovernment, of revenge for political crimes, a frantic struggle for
life and home on the part of a peasantry down-trodden, ejected, starved;
it was the last and successful phase of a great agrarian movement to
secure the rights of free born men in the land they tilled. Many crimes
have been committed, but who can distribute the blame? and any fair
historian will recollect the exasperation under which they were committed,
the failure of every attempt at redress, the findings of Royal Commissions
disregarded and the promises of politicians forgotten, the evictions and
legalized tyranny of rack-renting landlords, and the steady decrease of
this violence as constitutional agitation has gained a hearing and a more
humane spirit has inspired Parliamentary action. But such crimes as were
committed were never acts of religious persecution or violations of the
civil liberties of Protestants as such. Roman Catholics who opposed the
national movement, or sided with the party accountable for the wrong,
suffered also; and it is absolutely unjust and unhistorical to quote the
violence of an angry and a maddened people as prophetic, or even
suggestive, of similar wrongs likely to be perpetrated under an Irish
Government. If the Irish Roman Catholics desired to persecute Protestants,
there has been plenty of opportunity to do so; and, in three-fourths of
the country, life could have been made intolerable and impossible to
farmers and merchants dependent on the goodwill of their neighbours. Yet a
universal testimony to the contrary is borne by Protestants of every class
and party in the middle and southern counties where Romanism is
predominant. The charges of intolerance freely levelled at the Protestant
of the north in connection with certain notorious incidents of the
political campaign have been repelled and, it was supposed, answered by
reference to the boycotting outrages of the land struggle; but what
unprejudiced critic would ever admit that such incidents could be
paralleled with, or afford any justification for, the petty tyranny to
which men have been subjected in Ulster, because they dared to differ in
opinion from the majority and to utter the expression of their deliberate
convictions?
One of the most curious arguments relied on now against Home Rule, is the
prosperity of Ireland under the Union. It used to be Ireland’s miserable
poverty and thriftlessness that were assigned as proof of its unfitness
for self-government; now the blessed effects of the self same Union have
produced such prosperity that self-government is not needed or even
wanted!
A daring orator in Belfast proclaimed “the independent Parliament of
Ireland a dismal failure, and the Imperial Parliament a distinct success.”
The improved condition of Ireland is a matter of deep gratification,
specially as a foretaste of a better future. But to boast of the
prosperity of a country with its population reduced by one-half in fifty
years, with its poor little agricultural holdings of a £10 valuation
extending to one-half of the total, its sodden fields and ill-drained
lands, its treeless hills and undeveloped mineral resources, its famished
peasants and shoeless children carrying sods of peat to the village
school, is a heartless jibe emanating from the wealthy capital of the
North. The “distinct success” of a century of so-called Union government
is an equally audacious flight of fancy. Most people would wish to find a
contented people, living under the ordinary laws of constitutional
government, advancing industries, growing population, and plentiful food
as the tokens of a distinct success under a government of ever-increasing
wealth and power: but seven famines desolated the land during the century;
“for thirty-five years after the Union, Ireland was ruled for three years
out of every four by laws giving extraordinary powers to the Government;
and in the next fifty years (1835-1885) there were only three without
Coercion and Crime Acts.”(166) That for the boasted success of Unionism in
Ireland! The present prosperity is due to the National movement, in
response to which Gladstone secured the tenant right for the farmer, and
disestablished the Church, commencing that long series of beneficent but
belated reforms which have inspired the Irish people with hope, and of
which the last and crowning gift of independent self-government awaits
completion.
To return to the more distinctly religious aspects of the question, though
all that means liberty and progress ought to appeal to every Protestant’s
warmest sentiments, let us examine briefly the alleged dangers arising
from the power of the Roman Catholic priesthood and their influence on a
national government. It is ungenerous to forget all but the seamy side of
the Priest’s influence in Ireland. In many a dark day he was the poor
man’s only champion, and he has won a place of love in the people’s heart
not lightly granted or easily lost. But no one familiar with Irish life
fails to notice a change in the relations of priest and people whether it
be a portent of good or evil. The spread and consolidation of democratic
feeling, the many ties between the cabin in Ireland and the children’s
home in America, the spread of education and the influence of the Press,
are exercising in Ireland, as similar causes do elsewhere, a deep
influence on the simple piety, or as some call it, the superstition of the
people. The cry “no priest in politics” prevails as never before; and that
their sphere of influence in limited to questions of faith and morals is
being widely recognized by the clergy themselves. Influences at work in
European Catholic countries must more and more reach Ireland, and possibly
its danger is not from clericalism but from a slackening hold of the only
form of Christianity that has ever won the heart of the people. At all
events Roman Catholicism in Ireland has never been an aggressive force
forcing its faith on other communions, but seems content to be let alone
and to minister to its own adherents unmolested, as it has not been in the
past.
When Protestant interests such as education, temperance, Sunday
observance, marriage laws, and morals generally, are said to be in
imminent danger, what is it that is meant exactly? On such subjects there
are interests that are essential, and others that are matters of opinion:
very important to those who think them right, but of no weight to others.
As to legislation on these questions, if Protestants imagine they have any
claim or chance to impose their views in a National Parliament as they
have been accustomed to do, or try to do, by aid of English votes at
Westminster, the sooner they are disillusioned the better. But if they are
satisfied to secure essential interests, such as thoroughness in
education, increased sobriety by temperance reform, sanctity for marriage,
and liberty for Sunday observance according to the conviction of each,
what ground have they to fear that the influence of the Roman Catholic
clergy will be cast on the side opposed to their aims? There is a very
wonderful ignorance in the mind of the ordinary Protestant as to the
attitude of the Catholic clergy on moral and social questions. In
temperance, for instance, no Church in Ireland can rival in extent or
efficiency the work of the Capuchin Fathers, the Redemptorists, or the
Pioneers, an organization formed by a Jesuit priest, and rivalling in
thoroughness and success the “Catch-my-Pal” crusade of the Presbyterian
Church. In education, too, of every grade the Roman Catholic Church
advances with extraordinary zeal. True, there are Protestants who complain
of the Roman Catholic opposition to “mixed education”—a palpably unfair
complaint, whose underlying motive is a sectarian hope to weaken the hold
of religion on the people. There has been nothing like unanimity among the
Protestant Churches on the same subject. Each of them has tried its best
to secure in the educational sphere its own denominational interests. It
was the cry “Hands off Trinity” that killed Mr. Bryce’s University Bill,
which would have united the youth of Ireland in one grand university, in
which Trinity might have been the proud leader of Irish University
education. That legislation on education should be demanded on the lines
of a mixed system is quite unreasonable, being a matter of very divided
opinion; but as to the keen and successful competition of the Roman
Catholic schools and colleges with all the older institutions in the
country there is no question among those who know.
As to the moral interests of the community, it is a rather daring
assumption that they will be imperilled under a distinctly Nationalist
government. The reputation of the Irish race for pre-eminence in the
domestic virtues is a well established fact, and no incidents of later
years can cast even a passing shadow on the fair fame of her sons and
daughters. The standard of religious observance on such a matter as Sunday
may be different from that of the Protestant Churches. In practice the
latter have not much to boast; and experience gives no reason whatever to
fear any interference with the freest pursuit of their religious
convictions. The decree _Ne temere_ and cases of the undoubted miscarriage
of justice arising from it have created much discussion and distrust as to
the validity, under an Irish Parliament, of the marriage bond. The
sanctity of that bond in the eyes of the Roman Catholic Church, to whom it
is a Sacrament, cannot be doubted; and if the object of the decree is, as
it appears to be, to prevent mixed marriages, it ought to win the approval
of many Protestants who strongly condemn such alliances; but it is for the
civil law and the Executive of any government to provide that marriages
legally celebrated shall be upheld by all the power of the State. And
Ireland, according to Mr. Asquith’s Home Rule Bill, has no reason to dread
any failure in that duty. As to the decree commonly known as _Motu
proprio_, it never has been promulgated, or acted on, in Ireland or
elsewhere in the British dominions. It was unearthed, after centuries of
existence, by a party newspaper, and exploited for all it was worth, and a
great deal more, to embitter anti-Catholic prejudices, and score a point
in the Irish discussion.
As to Guarantees, opinion is much divided among Protestants. They are at
best a temporary device to allay fear; and can never be a substitute for
the real and honourable safeguards to be found in freedom and publicity of
discussion, the spread of enlightenment and toleration, the growing spirit
of Christian brotherhood and goodwill. The provisions in the Government
Bill appear to be ample; but all paper guarantees are easily evaded, and
it is on more permanent and spiritual assurances Protestants must rely.
Seldom has Protestantism had a finer chance than she will have in Ireland
under self-government, if only, inspired with the spirit of her Master and
the love of her native liberty, she seeks not to grasp power, but to
render service, if her idea of character be not the “old man” with his
haunting memories of wrong done and suffered, but the “new man” of the
Gospel, inspired by a fresh enthusiasm for the realisation of the Divine
purpose in regenerated human society. No Protestant Church will perhaps
ever be the Church of Ireland, as one powerful communion with a touch of
the old arrogance claims to be; yet Protestantism may add something to the
national piety and progress, nay, she may be another bulwark to the
Christian faith in days of strain and stress, if she can exhibit to a
naturally religious people a tangible proof of the possibility of uniting
the Apostolic creed with the intellectual demands of modern progress, and
in this way help to save the youth of Ireland from a desolating
materialism. Thus Protestantism may yet be enabled to make some pious
reparation for many an unholy deed done in her name to the most generous
people under the sun.
FOOTNOTES
1 Professor Dicey in “A Leap in the Dark” (1911), p. 118. _Cf._ Mr.
Balfour in _The Times_, May 3rd, 1912.
2 “The Law of Constitution,” Sixth Edition, p. 162, where Professor
Dicey makes a rather unhappy attempt to force the Dominion
Constitution into the category of Federalism.
3 The opinion of Laband (“Staatsrecht,” I., _passim_) as to its being
found in the totality of allied Governments represented by the
Bundesrath is probably nearest the truth.
4 Laband, “Die Entwickelung des Bundesraths,” Jahrbuch des
oeffentlichen Rechts, 1907, Vol. I., p. 18.
5 Maitland, _Domesday Book and Beyond_, p. 345.
6 It is difficult to understand what Professor Dicey means by saying
“unity is increasing throughout the Empire.” His argument seems like
a play upon the words unity and union. In merchant shipping,
copyright and other such matters, the whole tendency is towards
differentiation.
7 There are innumerable cases, _e.g._ _Cruikshank’s case_ and the
_Slaughter House case_.
_ 8 Cf._ Mr. Balfour, _The Times_, May 3rd.
_ 9 Cf._ “Pacificus” in _The Times_, April 30th.
10 I refer, of course, to the decisions of the Supreme Court—decisions
almost revolutionary in their character—in connection with the
annexation of Hawaii, the Philippines and Porto Rico. See in
particular _Downes_ v. _Bidwell_, 182 U.S., 244; also _Territory of
Hawaii_ v. _Makichi_, 23 S.C. Rep., 787, and _Dorr_ v. _United
States_, 195 U.S., 138.
11 It cannot be contended with any show of reason that the grant of a
constitution legally carries with it a grant of the Executive power
such as to divest the Imperial Government of its authority. There is
but a solitary opinion to the opposite effect—that of Higginbottom,
C. J. of Victoria, in _Musgrove_ v. _Toy_ (Victorian Law Reports,
XIV., 349).
12 The veto of the central Government on the local legislature is the
most decisive departure from the Federal principle. The Judicial
Committee have always regarded it, in the case of the British North
America Act, as a conclusive reason for rejecting the application of
the Federal doctrines of the U.S. Courts to the interpretation of
the Canadian Constitution. See _infra_, and _cf. Bank of Toronto_ v.
_Lambe_, 12 App. Cas., 575.
13 Difficulties arise when, as in the case of the Australian
Commonwealth, an attempt is made to reconcile the principles of the
American Constitution with those of the English Constitution. The
State Governments in Australia, equally with the Federal Government,
are carried on in the name of the Crown; what, then, becomes of the
prerogative doctrine that the Crown is not bound by a taxing
statute, when the Federal Executive attempts to levy Customs duties
under a Federal statute upon the property of a State Government? The
High Court found itself compelled to distinguish between several
capacities of the Crown in a Federal system. See _A-G. of New South
Wales_ v. _Collector of Customs_, 5 C.L.R., 818.
_ 14 In re Neagle_, 135 U.S. Rep., p. 1.
_ 15 Cf._ Sir William Anson, in the _Law Quarterly Review_, 1886.
16 There is, however, a provision in Clause XXVI. of the Bill Providing
that, in the event of a revision of the financial arrangements being
recommended by the Joint Exchequer Board, with a view to securing an
Imperial contribution from Irish revenues, and “extending the powers
of the Irish Parliament and the Irish Government with respect to the
imposition and collection of taxes,” there shall be summoned to the
Imperial Parliament such number of members of the _Irish_ House of
Commons as will raise the representation of Ireland in that
Parliament from its reduced figure of forty-two to such a number
(say seventy) as will represent Ireland’s claim to representation on
a population basis. That is to say, the Irish Parliament will send
some twenty-eight of its members to reinforce the forty-two members
who are directly elected to the Imperial Parliament by the
constituencies. It is only proper that Ireland should not be
required to contribute to Imperial purposes except with the consent
of the full representation to which she is entitled. But the clause
will require more careful definition: for example, the Irish
Parliament ought to be required to choose these twenty-eight
delegates in proportion to the representation of Irish parties in
the Imperial Parliament, so as not to “pack” the delegation. It can
hardly be denied that the provision makes a change in the
constitution of the Imperial Parliament itself, and a somewhat
anomalous one. It ought to be carefully considered in Committee. So,
also, ought the powers of the Joint Exchequer Board, whose decisions
are to be “final and conclusive.”
17 Clause XLI.
18 Clause XLI. (2).
19 The power of the Dominion Parliament to make laws for the peace,
order, and good government of Canada has, however, been so
interpreted as to permit of a large degree of concurrent
legislation. See _Russell_ v. _The Queen_, 7 App. Cas. 829. The
Dominion Government can also exercise a veto on provincial
legislation when it runs counter to the “settled policy” of the
Dominion. But in these respects the Canadian Constitution diverges
from the true Federal type.
_ 20 The King_ v. _Barger_, Commonwealth Law Reports, VI., p. 41.
_ 21 Riel_ v. _The Queen_, 10 App. Cas. 675.
22 Cf. _Reg._ v. _Burah_, 3 App. Cas. 889; _Hodge_ v. _The Queen_, 9
App. Cas. 117; _Powell_ v. _The Apollo Candle Company_, 10 App. Cas.
282.
23 The Imperial Parliament can, of course, legislate for any part of
the world (_Cf._ _Earl Russell’s_ Case, 1901, App. Cas. 446), but
its power is limited in practice.
_ 24 Cf._ _Bank of Toronto_ v. _Lambe_, 12 App. Cas. 575.
25 In _McCulloch_ v. _Maryland_, 4 Wheaton 316.
26 I am concerned here only with the justification for the omission of
constitutional restrictions. The Bill, as compared with its
predecessors, is conspicuous in this respect. Such restrictions as
it actually contains are dealt with by Sir John Macdonell in Chapter
IV.
27 Let me cite in illustration _Tilonko_ v. _The Attorney-General of
Natal_, L.R. (1907), A.C. 93 and 461, and _Philips_ v. _Eyre_
(1869), Q.B.
_ 28 Walker_ v. _Sauvinet_, 92 U.S. 90.
_ 29 Cf._ Clause IV. (8) of the 1893 Bill.
30 Such legislation must affect alike all persons similarly situated,
_cf._ _Yick Wo_ v. _Hopkins_, 118 U.S. 356.
_ 31 Cf._ on this subject the decision of the Judicial Committee in
_Union Colliery Co. of British Columbia_ v. _Bryden_ (1899) A.C.
580.
32 “Towards a Social Policy” (1905).
33 For example, the statutory limitations of the doctrine of common
employment which was based on the common law doctrine that the
workman had freely contracted to undertake the risks of his
employment.
34 Mr. Justice O. W. Holmes, of the Supreme Court of the United States,
writes to me on the subject of constitutional restrictions as
follows: “The police power is a ’conciliatory phrase’ to cover the
fact that if the infringement is not very big it will be sustained.
The police power would warrant a State law limiting the height of
buildings in a certain region to, say, 70 feet; but if you limited
them to 5 feet you would have to fall back on Eminent Domain and pay
for it—so that the beginning of constitutional rights may be
measured in feet. In other words, constitutional restrictions cannot
be carried to extremes, but end in a penumbra.”
35 The best example of this liberalising interpretation of the police
power is the famous _Slaughter House Case_ (16 Wall. 36). _Cf._ as
to regulation of the liquor trade _Barbemeyer_ v. _Iowa_ (18 Wall.
129), and _Mayler_ v. _Kansas_ (123 U.S. 623). For a general review
of cases bearing on the restrictive words of the Fourteenth
Amendment and their qualification by the necessity of allowing State
Legislatures the benefit of the police power, see the case of the
Utah Miners Act, 18 Supreme Court Reporter 383.
_ 36 Cf._ the leading case of _Metropolitan Asylums Board_ v. _Hill_ and
_cf._ _Partington_ v. _The Attorney-General_, L.R. 4 H.L. 122.
37 The decisions of the Supreme Court at Washington in the annexation
cases are a remarkable example of this. Their decision in the case
of _Dorr_ v. _United States_ that trial by jury did not extend to
the Philippines, on the ground that it was not a right fundamental
in its nature, set up a distinction which is not to be found in the
Constitution itself, and therefore left it to the court to decide
principles of constitutional law which are unwritten. _Cf. Harvard
Law Review XIX._ 547.
38 As to the safeguard against legislation affecting the rights of
religious minorities and to laws of marriage, see Sir John
Macdonell’s remarks in Chapter IV. _infra_.
_ 39 Cf. Philips __v.__ Eyre_ _supra_.
40 This would apply to the Tenure of Office Act.
41 The mere fact that the Crown had given its consent to an Irish Act
would not make that Act _intra vires_ if it exceeded the powers of
the Irish Legislature. It might subsequently be declared _ultra
vires_ by a Court at any time.
42 I am not at all sure that this provision was necessary. The Crown
already has the power under 3 & 4 Will. IV. cap 41, sec. 4 to refer
to the Judicial Committee any such matters whatsoever as it may
think fit. The Canadian Government has a similar power conferred on
it by the Supreme Court Act, 1875, extended by 54 & 55 Vict.,
enabling the Governor-General in Council to refer to the Supreme
Court certain specified matters, particularly questions touching the
validity of provincial or Dominion legislation. The decision of the
court operates as a declaratory judgment, on which an appeal may be
taken to the Judicial Committee. For example of its exercise _cf._
the Manitoba Schools Case. See Sir Frederick Pollock’s remarks in
Chapter III.
43 The English judges, even when favourable to the claims of the early
Irish Parliament, insisted on this limitation. _Cf._ the Case of the
Merchants of Waterford; Year Book, Ric. III., fol. 12.
_ 44 Cf._ Section 264 of the Merchant Shipping Act of 1894; also the
Fugitive Offenders Act of 1881 (44 & 45 Vict., cap. 69).
_ 45 Cf._ the Naturalization Act of 1870.
46 The law as to treason is not necessarily the same in the Colonies.
_Cf. Riel_ v. _The Queen_, 10 App. Cas. 675, and also _R._ v.
_Marais_, L.T. Rep. LXXXV., p. 363.
47 There can, I think, be no doubt as to the necessity. I know but one
opinion, and not a very authoritative one, to the contrary, namely
that of a Chief Justice of the Colony of Victoria. See _Musgrove_ v.
_Toy_ V.L. Rep. XIV. 349, and _supra_.
48 Even, however, if there had not been such an express grant of the
executive power in the Act, the Irish Parliament might, I think,
have assumed it by legislation. A colonial Legislature can, subject,
of course, to the veto of the Crown, confer on the Colonial
Government the prerogatives in so far as they are necessary to the
domestic government of the colony. _Cf._ Lefroy, “Legislative Power
in Canada,” p. 180.
49 No doubt the statutory powers exercisable under the first two Acts
would come within the control of the Irish Government.
50 His office is not the creation of statute except in so far as it was
necessary to place his salary on the Estimates. His office has,
however, frequently received statutory recognition in connection
with the creation of new Departments. _Cf._ the Irish Local
Government Board Act (1872), Section 3.
51 I have examined with some care the theory of Second Chambers in my
articles in _The Nineteenth Century_, for November, 1910, and June,
1911. I may also refer the reader to my book on “The House of Lords
and the Constitution,” and particularly to the Lord Chancellor’s
preface to the same. Foreign examples are dealt with in the reprint
of the author’s lectures on “The Place of a Second Chamber in the
Constitution” (1911).
52 There is this much to be said for nomination, that it does fulfil
the condition laid down by Alexander Hamilton and by Story as the
first canon of the bi-cameral theory—namely, that the basis of the
two chambers should be radically different. See Story’s Commentaries
(ed. Bigelow) Vol. I., Section 690. This is not so easy to secure by
election in modern times when there is suspicion of any other than a
democratic franchise.
53 Clause XII. (4).
54 For a survey of the Second Chambers in the Colonies I may refer the
reader to my article on the subject in _The Contemporary Review_ for
May, 1910.
_ 55 Kielley_ v. _Carson_, 4 Moore P.C. 63.
56 I refer the reader for detailed treatment of the subjects of Irish
Appeals, Constitutional Limitations, and Police and Judiciary, to
the chapters by Sir Frederick Pollock, Sir John Macdonell and
Serjeant Molony. I have not thought it necessary to touch on the
financial provisions of the Bill, as they are exhaustively treated
by Lord Welby in Chapter V.
_ 57 The Times_, April 16th.
58 See Mr. Cecil Harmsworth’s essay on the “State of Public Business,”
Chap. XV. of this work.
_ 59 Cf._ for example, Jellinek’s “Gesetz und Verordnung” (Freiburg,
1887), pp. 20-35.
60 I may here refer to an article of mine in the _Nineteenth Century_
for April of last year.
61 Statutory changes in the common law (it would be more correct to
call it “the civil law”) of Scotland are rarely made by Parliament
except on the initiative, or with the consent, of Scottish members.
There is a remarkable clause in the Act of Union between England and
Scotland (6 Anne, Cap II., Art. xviii.) providing that “no
alteration may be made in the (Scotch) laws which concern private
right except for evident utility of the subjects within Scotland.”
62 The law relating to matrimonial causes in Ireland is governed by the
Matrimonial Causes and Marriage Law (Ireland) Amendment Act of 1870,
and is practically the same as the English Law before the
Matrimonial Causes Act of 1857.
63 Power to make such re-arrangements or transfers by Order in Council
is given by Sections XL. and XLIV. of the Government of Ireland
Bill.—EDITORIAL NOTE.
64 The control by Government, of course, does not extend to the
magistrates’ judicial functions.
65 Recorders and County Court Judges are appointed by the Irish
Government.
66 Clause XXI. of the Bill provides for this.—EDITORIAL NOTE.
67 “Money for loans in Ireland shall cease to be advanced either by the
Public Works Loans Commissioners or out of the Local Loans Fund”
(Clause XIV. (3)).—EDITORIAL NOTE.
68 If transferred to the Irish Government.
69 The Office of Arms is now directly controlled by the
Lord-Lieutenant, and it is a question whether it should not remain
so.
70 The clause in question which set up a Court to be known as the
Exchequer Division with a quasi-federal jurisdiction has not been
repeated. _See_ Chapter I. of this work.—EDITORIAL NOTE.
71 Clauses II. and V. provide for the reservation of the Constabulary
for a period of six years from the appointed day, at the end of
which the force is to be transferred to the Irish Government. The
Dublin Metropolitan Police is transferable at once.—EDITORIAL NOTE.
72 Under the Bill it is permanently reserved, _i.e._,
“excluded.”—_Ibid._
73 Provision is made by Clause IV. of the Bill for the appointment of
heads of Departments who shall be known as “Ministers.” _See_
Chapter I. of this work.—EDITORIAL NOTE.
74 This convention of the English Constitution, which rests on a
Standing Order of the House of Commons, is embodied in the Bill
(Clause X. (2)).—_Ibid._
75 A similar provision appears in the new Bill, but the character of
the Executive Committee is much more explicitly defined. _See_
Clause IV.; _also_ Chapter I. of this work.—EDITORIAL NOTE.
_ 76 Marbury_ v. _Madison_, 1 Cranch, at pp. 177-8.
77 The principal authority is _Hodge_ v. _Reg._ (1883) 9 App. Ca. 117,
132. See also the _Maritime Bank of Canada’s_ case (1892) A.C. 437,
442.
_ 78 Ex parte Carew_ (1897) A.C. 719. It is not clear that the judgment
was adequately considered.
79 See _Russell_ v. _Reg_. (1882) 7 App. Ca., 829, 839.
_ 80 Citizens’ Insurance Company of Canada_ v. _Parsons_ (1881) 7 App.
Ca. 96, 109.
_ 81 Webb_ v. _Outrim_ (1907) A.C. 81. The appeal which before the
Constitution Act of 1900 lay direct to the Crown in Council from the
Supreme Courts of the several Australian Colonies is not abolished.
82 3 and 4 Will. IV. c. 41, s. 4. Under this section the question
whether the Royal assent should be given to a Bill of the Irish
Parliament could certainly be referred to the Judicial Committee,
but it seems doubtful whether an Act already passed could be so
dealt with, as the matter would then be beyond the competence of an
Order in Council.
83 See Prof. Harrison Moore in _Law Quart. Rev._, xx. 236.
84 The Syllabus of March 8th, 1861 (Proposition 57) condemned the
proposition that “any other religion than the Roman Catholic may be
established by the State.”
85 To illustrate this, I quote first from a Roman Catholic writer of
distinction: “Religious liberty may be introduced when it is
required for the common good, to prevent greater evils, or when it
has been a necessity” (Hergenröther, Vol. II., p. 364). “Where
modern States exist with freedom of conscience and several religious
denominations with equal rights, it is impossible further to carry
out the principles of the Church. In these days the Church is
confined to the purely ecclesiastical domain, and her whole
endeavours must be directed to preserve her necessary freedom, or if
she does not possess it, to win it back” (Hergenröther, Vol. I., p.
65). The next quotation is from a modern Protestant historian “The
Pope would like to have freedom of conscience in Sweden and Russia;
but he does not wish for it on principle, but only as a means which
may be used by Providence to propagate the truth in those countries.
Pius IX. and Mgr. Pie were agreed that only in countries where the
Catholics are in a minority might religious freedom be wished for by
Catholics” (Nielsen “History of the Papacy in the Nineteenth
Century,” Vol. II., p. 263). See also _Ueber die Entwickelung des
Katolischen Kirchenrechts im 19. Jahrhundert_, Von Dr. Fritz
Fleiner.
86 Mr. Gladstone (“Church and State,” p. 185) enumerates eight
principles adopted by modern Governments with regard to the support
of religion and the treatment of its varieties. He subsequently
reduces them to four; the first in which heresy and schism were
visited with civil penalty _pro salute animæ_ for the cure of the
individual. The second in which they were similarly visited, but
chiefly in the view of preventing the infection of society within
which limits they had appeared. The third in which disqualifications
of a civil kind are imposed instead of penalties. The fourth is that
in which all forms of religion claim from Government a precisely
equal regard, as respects either civil privileges or positive
assistance (pp. 187, 188). Zeller (“Staat und Kirche,” p. 6) reduces
the principles to three; substantial identity of Church and State;
complete separation; partial separation and identity.
87 As to meaning of “establishment,” see _Bradfield_ v. _Roberts_
(1899), 175 U.S. 291.
88 The German _Reichsgesetz_ of July 3rd, 1869, expressly repeals all
civic disqualifications based upon religion (Laband, Vol. I., p.
148).
89 See as to cases which have come before the Swiss Courts (Buckhardt,
p. 484).
90 Keith: “Responsible Government in the Dominions,” Vol. III., 1423n.
In Gignac’s “Compendium Juris Canonici ad Usum Cleri Canadensis”
(1901) is a statement of the large rights which the Catholic Church
has acquired in Canada in virtue of treaties.
91 See, as to the effect of this section, _Barrett_ v. _City of
Winnipeg_ (1892) A.C. 445; also _Brophy_ v. _Attorney-General of
Manitoba_ (1895) A.C. 202.
92 “There is at present no general marriage law for the Dominion, and
it is disputed whether the Dominion Parliament has power to pass
such an Act. Each province has legislated with respect to this
subject. The Government of the Dominion have just referred to the
Supreme Court (March 11th) a stated case regarding the respective
jurisdictions of the Dominion and provinces in regard to a marriage
law. The Quebec provinces argued that there is no power on the part
of the Dominion Parliament to submit such a case to the Supreme
Court. The point stands over until May 7th.” (_The Globe_, Toronto,
March 12th.)
_ 93 Brown_ v. _Curé de Montreal_, L.R. 6, P.C. 157. See _O’Keefe_ v.
_Cullen_, Report by Fitzpatrick; also 7 Irish Reports, 319.
_ 94 The Times_, March 1st, 1911.
95 It is only right that the rest of the letter should be quoted: “But
it is, in my opinion, much to be regretted that by the promulgation
of the decree, and even more by the language which appears to be
sometimes used to secure obedience to it, the Roman Catholic Church
should introduce confusion into domestic life and give rise to
unnecessary and disquieting doubts as to the legal validity of
marriages already contracted, or as to the lawful status of persons
who may hereafter marry.”
96 “Ecclesia haec matrimonia mixta communiter improbavit atque
detestata,” Lehmkuhl Theologia Moralis, Vol. II., p. 511.
97 See Statement by Monsignor Bidwell in _Dublin Review_, 148, p. 327;
also article “_Apostolicæ Sedis_.” Vacant, _Dictionnaire Théologie
Catholique_.
98 Reiffensteuel, Vol. II., p. 245, asserts that the privilege is not
lost by immemorial custom, even as to civil matters.
99 It is perhaps hardly necessary to remind the reader that Lord Welby
was a member of the Royal Commission on the Financial Relations
between England and Ireland which reported in 1896.—_Editorial
Note._
100 The “_true_” revenue differs from the _collected_ revenue, by making
allowance for duties paid in the one country on articles consumed in
the other.
101 Any charge in excess of £1,000,000 on the Constabulary was to be
borne by the Imperial Exchequer.
102 Probably over-estimated.
103 True Revenue £8,000,000, Irish Expenditure £6,000,000, Contribution
£2,000,000.
104 It is not clear from the Bill or the explanatory paper, whether the
Irish Postal Revenue will be paid into the British Exchequer in the
first instance, or retained in the Irish Exchequer. I presume the
former.
105 £11,339,000 minus £7,562,000 = £3,777,000.
106 The Constabulary charge is fixed at first at £1,337,000. If in the
six years of Imperial control the cost rises to (say)
£1,500,000-£1,500,000 will be the sum transferred; but the Bill does
not say what is to happen if the cost were to fall to (say)
£1,300,000. Explanation is needed as to the effect of the proviso
that regard is to be had to the prospect of any increase or decrease
expected to arise from causes not being matters of administration.
107 60 and 61 Vic. c. 66, 7 Edward VII. c. 44.
108 6 & 7 Will. IV., c. 29; 7 Will. IV., and 1 Vict., c. 25; 5 & 6
Vict., c. 24.
109 Civil Service Estimates, 1912-1913, Class III., p. III.
110 6 & 7 Will. IV., c. 13; 2 & 3 Vict., c. 75; 22 & 23 Vict., c. 22.
111 Civil Service Estimates, 1912-1913, Class III., p. 119.
112 Taking Census of 1911 as a basis, see Civil Service Estimates
1912-1913, Class III. pp. 111 and 119, Reports of H.M. Inspectors of
Constabulary for England and Wales, 1910, p. 135.
113 “Against Home Rule,” p. 155.
114 4 Bingham, “New Cases,” p. 574.
115 Judgments of the Superior Courts in Ireland published under the
direction of the Attorney-General for the information of magistrates
(1889), p. 23.
_ 116 Attorney-General_ v. _Kissane_, 32 Law Reports, Ireland, p. 220.
117 4 Bingham, “New Cases”, p. 574 _supra_.
118 “The Motu Proprio ‘Quantavis Diligentia’ and its Critics,” by the
Archbishop of Dublin, p. 10.
119 Speech upon the Address, February, 1909.
120 This sum has, since the 31st of March, been considerably reduced.
121 Part I. of this Chapter incorporates the statement on the Land
Question prepared by the Right Hon. W. F. Bailey, Estates
Commissioner for the Commission on Congestion in Ireland, presided
over by the Earl of Dudley. It has been brought up-to-date, but
otherwise it is almost word for word as the learned Commissioner
wrote it.
_ 122 Cf_. Mr. Balfour, _The Times_, November 7th, 1911.
123 A considerable portion of this chapter appeared in the form of an
article in _The Contemporary Review_ in the year 1887, but it has
been rewritten by Lord Fitzmaurice for the purposes of this work. We
have to thank the Editor of the _The Contemporary Review_ for his
kind permission to make use of the original text—_Editorial Note_.
124 Speech of October 28th, 1738: “Grattan’s Speeches,” i., 183.
125 Grattan to Fox, April 18th, 1782: “Fox’s Correspondence,” i., 403.
126 “Grattan’s Speeches,” i., 129.
127 “Fox’s Correspondence,” by Lord Russell, i. 412.
128 Lord Rockingham to Lord Shelburne, May 25th, 1782, “Parliamentary
History,” xxxiv., 979.
129 “Life of Lord Shelburne,” iii., 144.
130 “Fox’s Correspondence,” i., 417, 418.
131 “Life of Lord Shelburne,” iii., 145.
_ 132 See_ “Life of Grattan.”
133 “Fox’s Correspondence,” i., 416; “Life of Lord Shelburne,” iii.,
143.
134 “Life of Lord Shelburne,” iii., 146.
135 Fox: “Speeches,” ii., 64, 65.
136 “Grattan’s Speeches,” Vol. III., 355, 409; January 15th, February
22nd, 1800. “Fox’s Correspondence,” i., 426; “Life of Lord
Shelburne,” iii., 149; “Parliamentary History,” xxx., 957 (Speech of
General Fitzpatrick).
137 Speech of July 19th, 1782.
138 Speech of Grattan, January 15th, 1800: “Speeches,” Vol. III., 355.
139 “Fox’s Correspondence,” i., 431.
140 “Life of Lord Shelburne,” iii., 150.
141 “Parliamentary History,” xxxiv., 675, 678; “Memoirs of the Whig
Party,” by Lord Holland, I. 147; “Life of Lord Shelburne,” iii.,
554, 555.
142 Letter on the Affairs of Ireland, 1797.
143 28 Geo. III., c. 28.
144 Much interesting light has been thrown on the history of the
struggle in 1782-1783 between Grattan and Flood, by the publication
of the Diary and Correspondence of Lord Charlemont, in the Reports
of the Historical MSS. Commission, Twelfth Report, Appendix Part X.,
1891. The abstract doctrine of the legislative supremacy of the
British Parliament, and not only the practical application of that
doctrine, was strenuously disputed by many of the leaders of
Colonial Opinion in America as well as in Ireland at the
commencement of the XVIIIth century, as a reference to the
literature of the Stamp Act and the Declaratory Act of 1766 will
show. The doctrine itself was one of the consequences of the
Revolution of 1688, which true to the general principle of exalting
the importance of the British Parliament, abolished on the one hand
the right of the Crown to tax the Colonies by virtue of its
prerogative, and on the other asserted a right in the British
Parliament to legislate and tax in the “settled” Colonies of the
Crown concurrently with the local representative assemblies, and, if
necessary, over their heads. The same class of arguments were used
both by Colonial and by Irish statesmen against the claims of the
British Parliament to interfere as between them and the Crown; but
the Irish case was always the stronger of the two, because her
advocates were able to start from the admitted right and position of
Ireland as a kingdom, with a Crown of her own. To the claims of the
British Parliament, the Whig statesmen, recognising their danger in
practice, tried to set constitutional limitations, and hence grew up
the distinction, on which the elder Pitt relied, between the right
of Great Britain to impose by law internal taxation within the
Colonies for the purposes of revenue, and her right to levy external
taxation for the regulation of Colonial trade. This distinction,
however, from a legal point of view, Lord Mansfield showed, would
not bear examination, and he laid down the law to be, that the
Parliament of Great Britain had an absolute legislative supremacy
over her Colonies—and by implication over Ireland—in all cases
whatever, whether for internal or external objects; whether to
impose a tax, or to regulate trade; whether to levy money, or to
make general enactments; and this doctrine it was which was recorded
in the Declaratory Act of George III. of 1766, relating to the
Colonies, the counterpart of the Declaratory Act of George I.,
relating to Ireland. (_See_ Bancroft, Vol. III., Ch. xix., The
Absolute Power of Parliament; “Life of Lord Shelburne,” Vol. I., Ch.
iv., p. 253.)
145 “Life of Lord Shelburne,” i., 285.
146 Montesquieu, “Considérations sur la Grandeur et la Decadence des
Romains.”
147 Lecky.
148 For further details see _Dublin Castle and the Irish People_.
149 Bright.
150 Poor Law Commission (Ireland) Report 1903-1906, p. 12.
151 “Dublin Castle and the Irish People.”
152 Gavan Duffy: “Young Ireland.”
153 “In Ireland,” said Lord Normanby, “the landlord has the monopoly of
the means of existence, and has a power of enforcing his bargains
which does not exist anywhere—the power of starvation.”
154 Gavan Duffy: _League of North and South._
155 I have done so in “Dublin Castle and the Irish People,” _see_ p.
264, _et seq._
156 Mr. Commissioner Bailey.
157 John Stuart Mill.
158 A debate took place in the House of Lords on the subject on February
17th, 1905. The correspondence between Mr. G. Wyndham and Sir A.
MacDonnell on the latter’s appointment appears as an appendix in
“The Outlook in Ireland” (John Murray. 1912.)
159 Mr. Barry O’Brien’s “Life of Parnell.” Vol. I., p. 93.
160 “Federation and Empire,” p. 315. (H. Henry & Co., 1896.)
161 This Table has already been published in a chapter which I
contributed to “Home Rule Problems,” edited by Basil Williams (King,
1911).
162 “Home Rule Problems,” pp. 67-72. (King, 1911.)
163 “Parliamentary Debates,” Vol. CCCXVIII., p. 688.
164 A Quarterly Review of the politics of the British Empire, which is
entirely free from any partisan prepossessions.
_ 165 See_ Kipling’s “Ulster.”
166 “Irish Nationality” (Home University Library.)
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