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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 BALLIOL COLLEGE, OXFORD.

i'l jap TtXfVTaia xdpts xaipbv

Xvaai — Thucydides I. 42.

HODDER AND STOUGHTON

LONDON NEW YORK TORONTO

" For the later kindness done in season, though small in comparison,
may cancel a greater previous wrong" — Thucydides I. 42.

CONTENTS

FAG*

INTRODUCTION - The Editor ix

PART I.

THE NEW CONSTITUTION

I. — THE CONSTITUTION : A COMMENTARY - 3

By J. H. MORGAN, M.A., Professor of Constitutional
Law at University College, London.

II. — IRISH ADMINISTRATION UNDER HOME RULE 50

By the RIGHT HON. LORD MACDONNELL OF
SWINFORD, late Under-Secretary to the Govern-
ment of Ireland.

III. — THE JUDICIAL COMMITTEE AND THE INTERPRETATION

OF THE NEW CONSTITUTION - 81

By the RIGHT HON. SIR FREDERICK POLLOCK,
Bart., LL.D., D.C.L., Editor of the "Law
Quarterly Review," and the Law Reports, formerly
Corpus Professor of Jurisprudence in the
University of Oxford.

The New Irish Constitution

PAGE

IV. — CONSTITUTIONAL LIMITATIONS UPON THE IRISH LEGIS-
LATURE AND THE PROTECTION OF MINORITIES - 90

By SIR JOHN MACDONELL, C.B., LL.D., Professor
of Comparative Law in the University of London.

V. — IRISH FINANCE - - - 112

By the RIGHT HON. LORD WELBY, late Permanent
Secretary to the Treasury.

VI. — JUDICIARY, POLICE, AND THE MAINTENANCE OF LAW

AND ORDER - - - 157

By T. F. MOLONY, K.C., His Majesty's Second
Serjeant-at-Law, Crown Counsel for Dublin.

VII. — THE PRESENT POSITION OF THE IRISH LAND QUESTION 166
By JONATHAN PYM, K.C., of the Irish Bar.

PART II
A HISTORICAL ARGUMENT

VIII. — IRISH NATIONALITY - - 217

By MRS. J. R. GREEN.

IX. — IRELAND AS A DEPENDENCY - - - 251

By A. F. POLLARD, M.A., LL.D., Professor of
Modern History in the University of London.

X.— 1782 AND 1912 : A COMPARISON - - - 268

By the RIGHT HON. LORD FITZMAURICE.

XI. — GRATTAN'S PARLIAMENT ------ 290

By G. P. GOOCH, M.A.

XII. — THE GOVERNMENT OF IRELAND IN THE NINETEENTH

CENTURY . _ . . 306

By R. BARRY O'BRIEN.

XIII. — THE HISTORY OF DEVOLUTION - 337

By the RIGHT HON. THE EARL OF DUNRAVEN, K.P.

PART III.

CONTEMPORARY VIEWS

XIV. — IRISH NATIONALISM AND LIBERAL PRINCIPLE - 361

By L. T. HOBHOUSE, M.A., Professor of Sociology
in the University of London.

vii

The New Irish Constitution

XV. — THE IMPERIAL PARLIAMENT

PAGE

- 373

(i) THE STATE OF PUBLIC BUSINESS - 373

By CECIL HARMSWORTH, M.P.

(n) THE TENDENCY TOWARDS LEGISLATIVE DIS-
INTEGRATION : A REVIEW OF THE STATUTE
BOOK - - - . 388

By H. DE R. WALKER, late M.P. for the Melton
Division of Leicestershire.

(in) COLONIAL FORMS OF HOME RULE - - - 412
By SIR ALFRED MOND, Bart., M.P.

XVI. — CONTEMPORARY IRELAND AND THE RELIGIOUS QUES-
TION :

(i) A CATHOLIC VIEW - 427

By MONSIGNOR O'RIORDAN, Rector of the Irish
College at Rome.

(n) SOME PROTESTANT VIEWS :

(1) The Church of Ireland - - - 449

By the REV. CANON COURTENAY MOORE,
M.A., Rector of Mitchelstoivn, and
Precentor of Cloyne Cathedral.

(2) The Presbyterian Church in Ulster - - - 462

By the REV. J. B. ARMOUR, M.A., Minister
of BaUymoney, Co. Antrim.

(3) The Methodist Church in Ireland - -47%

By the REV. W. CRAWFORD, M.A., lot*
Principal of Wesley's College, Dublin,

viii

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 New Irish Constitution

The second part of the book may be regarded as
supplementary to the first, in that it deals with con-
stitutional history. When public men of such dis-
tinction 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 Dun-
raven 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

Introduction

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

The New Irish Constitution

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 prin-
ciples of Home Rule, but that allegiance is not incom-
patible 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 appear-
ance 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 learn-
ing 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

xii

Introduction

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 told1
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 vocabu-
lary. 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 denned with diffi-
culty and observed with reluctance, that conflict of
laws is more often the rule than the exception, that

1 Professor Dicey in "A Leap in the Dark" (1911), p. 118.
Cf. Mr. Balfour in The Times, May 3rd, 1912.

The New Irish Constitution

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 irrele-
vant. 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 doubt-
ful 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 pre-
amble ;l and German jurists have wrangled no less
inconclusively than incessantly about the legal character
of the Empire and as to where its sovereignty resides ;2
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,

i " 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.

1 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.

The Constitution : A Commentary

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 violat-
ing 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.1 The argument that " Federalism " is incom-
patible 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 con-
tention 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 imper-
fectly 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 " J cannot be sustained. If it

1 Laband, " Die Entwickelung des Bundesraths," Jahrbuch des
oeffentlichen Rechts, 1907, Vol. I., p. 18.

: Maitland, Domesday Book and Beyond, p. 345.

The New Irish Constitution

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.1 But it
is not even true of Federal Unions. Anyone who takes
the trouble to study the history of judicial interpreta-
tion 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 I4th Amend-
ment 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.2 Nor is this
all. We are told that Federal Constitutions are " round
and perfect and self-contained/'3 — that they are charac-
terized 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.4 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

1 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.

1 There are innumerable cases, e.g. Cruikshank's case and the
Slaughter House case.

3 Cf. Mr. Balfour, The Times, May 3rd.

* Cf. " Pacificus " in The Times, April 30th.

The Constitution : A Commentary

emphasize this heterogeneity, inequality and incom-
pleteness.1

The new Bill proposes a delegation of authority,
both executive and legislative. Unlike a Federal con-
stitution, 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 Excel-
lent Majesty, by and with the advice and consent of
the Senate and Commons. But the Imperial Govern-
ment 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 con-
vention, 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

1 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.

The New Irish Constitution

they still leave it to His Majesty to determine1 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,2 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 judg-
ments 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

1 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 Higgin-
bottom, C. J. of Victoria, in Musgrove v. Toy (Victorian Law
Reports, XIV., 349).

1 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.

The Constitution : A Commentary

is no " Crown " to serve as a common denominator
of State and Federal Executives.1 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 Constitu-
tion 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 Con-
stitution, 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.8

1 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.

1 In re Neagle, 135 U.S. Rep., p. i.

The New Irish Constitution

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 rea
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 Govern-
ments 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 prin-
ciple 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.

The Constitution : A Commentary

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 Govern-
ment, 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 Parlia-
ment 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 " unalter-
able " to bind posterity — as in the case of certain
clauses in the Irish and Scotch Acts of Union — its injunc-
tions 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 Constitu-
tion is no more irrevocable than an Act authorising the

The New Irish Constitution

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 pro-
vision 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 amend-
ing such a Home Rule Act without calling in the assist-
ance of the Irish Parliament was much discussed at
the time.1 Obviously, the question does not now arise,
as the Irish members are to continue to sit at West-
minster.2

1 Cf. Sir William Anson, in the Law Quarterly Review, 1886.

1 There is, however, a provision in Clause XXVI. of the Bill
Providing that, in the event of a revision of the financial arrange-
ments 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 repre-
sentation 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 \\ill 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

The Constitution : A Commentary

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,2 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

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 dele-
gation. It can hardly be denied that the provision makes a change
in the constitution of the Imperial Parliament itself, and a some-
what anomalous one. It ought to be carefully considered in Com-
mittee. So, also, ought the powers of the Joint Exchequer Board,
whose decisions are to be " final and conclusive."
* Clause XLI.

The New Irish Constitution

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.1 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 inex-
haustible as the fountain of honour.

It is just here that the divergence from Federal prin-
ciples is most marked. Under the British North
America Act the legislative powers of the provinces are
"exclusive" of Dominion legislation within their own
sphere.2 So, too, in the case of the Australian Constitu-
tion, 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,

* Clause XLI. (2).

a 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 Govern-
ment 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.

The Constitution : A Commentary

control 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 legis-
lation 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 l on the ground
that it exceeded the powers conferred on the Federal Par-
liament 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 con-
current. 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 govern-
ment " 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." 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

i The King v. Barger, Commonwealth Law Reports, VI., p. 41.
1 Kiel v. The Queen, 10 App. Cas. 675.

The New Irish Constitution

as plenary and as ample as the Imperial Parliament
itself possesses or can bestow, and it may, if it so pleases,
delegate this authority.1 The Irish legislature will,
however, have no power to legislate extra-territorially.2
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 Govern-
ment 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 inequit-
able, inexpedient, or contrary to Imperial interests.
This executive veto is really a juristic fact of great
importance — it has always been present to their lord-
ships' 3 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

1 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.

2 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.

8 Cf. Bank of Toronto v. Lambe, 12 App. Cas. 575.

The Constitution : A Commentary

Court, as laid down in Marshall's famous doctrine of
" implied restraints." l 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.2

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

1 In McCulloch v. Maryland, 4 Wheaton 316.

2 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.

The New Irish Constitution

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 e% 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 Protest-
ant 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 Constitu-
tion 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"1 will discover that constitu-
tional limitations of this kind upon the powers of colonial
Legislatures are not recognised by our judges. In the

1 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.

The Constitution : A Commentary

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 Legis-
lature might not infringe. Its main provisions might
be classified as having three objects in view : (i) 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 preserva-
tion of the existing rights and privileges of the Pro-
testant 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 I4th
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 Legis-
lature 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 preser-
vation of the right to trial by jury ? In the States of
America it has been authoritatively laid down l 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 conse-
quence of express words. In the case of the States,

i Walker v. Sauvinet, 92 U.S. 90.
B 19

The New Irish Constitution

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 pass-
ing 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, includ-
ing 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 Parlia-
ment 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 pre-
cedent," enabling it to go further. In other words, the
clause might have operated to secure a certain standard-
ization 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 legis-
lation to the Imperial Parliament rather than by im-
posing 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 legis-
latures— though not without difficulty — than to lay
down certain abstract principles. Moreover, is it desir-
able to maintain such uniformity of legislative principle ?
There is a great deal to be said for reserving certain

The Constitution : A Commentary

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 indus-
trial 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 com-
pensation 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 diffi-
cult 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

The New Irish Constitution

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 l 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.2 On this interpretation, they would
for example, have prevented an Irish Legislature from
exempting Catholic convents which are used as work-
shops 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."3 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

i Cf. Clause IV. (8) of the 1893 Bill.

* Such legislation must affect alike all persons similarly situated,
cf. Yick Wo v. Hopkins, 118 U.S. 356.

» Cf. on this subject the decision of the Judicial Committee in
Union Colliery Co. of British Columbia v. Bryden (1899) A.C. 580.

The Constitution : A Commentary

uncharted sea of litigation. Modern legislation,
especially social and industrial legislation, infringes
common law rights at every point. I have ventured
elsewhere Ho 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.2 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 incor-
poration 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 " 3 to enable the legislatures
to pass legislation which otherwise might have seemed

1 "Towards a Social Policy" (1905).

* 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 employ-
ment.

3 Mr. Justice 0. 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."

The New Irish Constitution

to " abridge the privileges " of citizens of the United
States or deprive them of " liberty or property without
due process of law." x

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.2 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.8

1 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,
1 8 Supreme Court Reporter 383.

1 Cf. the leading case of Metropolitan Asylums Board v. Hill and
cf.Partington v. The Attorney-General, L.R. 4 H.L. 122.

* 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 princi-
ples of constitutional law which are unwritten. Cf. Harvard Law
Review XIX. 547.

The Constitution : A Commentary

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 * 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 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*
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 objection-
able, or on the ground that it is, in their opinion, in

» As to the safeguard against legislation affecting the rights of
religious minorities and to laws of marriage, see Sir John MacdonelTs
remarks in Chapter IV. infra.

• Cf. Philips v. Eyre supra.

The New Irish Constitution

excess of the powers conferred on the Irish Legislature.
It is desirable in every way that the two should be dis-
tinguished 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 unobjec-
tionable 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 * 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 particu-
lars 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 2 and observed in Ireland only to be subsequently
declared ultra vires in the course of litigation, it is

1 This would apply to the Tenure of Office Act.

1 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.

The Constitution : A Commentary

provided in the Government of Ireland Bill1 (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 Com-
mittee 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 legis-
lation 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

1 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 Viet.,
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.

The New Irish Constitution

treaties would, as a matter of international law, have
been impossible in her case, even if they had not been
expressly prohibited. r' Merchant shipping " and " the
return of fugitive offenders " would also have been
excluded from her authority by the rule of law l which
precludes a subordinate legislature from extra-terri-
torial 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.2 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
naturalization3 and treason,* 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

i 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.

1 Cf. Section 264 of the Merchant Shipping Act of 1894 ; also the
Fugitive Offenders Act of 1881 (44 & 45 Viet., cap. 69).

1 Cf. the Naturalization Act of 1870.

• The law as to treason is not necessarily the same in the
Colonies. Cf. Kiel v. The Queen, 10 App. Cas. 675, and also R. v.
Marais, L.T. Rep. LXXXV., p. 363.

The Constitution : A Commentary

of Union, bound Ireland to England by many legis-
lative 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 consider-
ations 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 undesir-
able to have the " industrial minimum " for the United
Kingdom, so laboriously attained by our factory legisla-
tion, lowered in the interests of particular interests in
Ireland. The advantages of securing uniformity by
the inclusion of the three great statutes relating to com-
mercial law is also very obvious. Two of them, indeed,

The New Irish Constitution

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 undesir-
ability of exacting too rigid a degree of uniformity in
English and Irish legislation, but constitutional limita-
tions are one thing and exceptions quite another. It
is very difficult to subject the whole field of Irish legis-
lation to juristic principles, but it is comparatively easy
to exempt from that field the subject matter of par-
ticular 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 enumer-
ated 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

The Constitution : A Commentary

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 inex-
pedient, 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 resent-
ment 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 per-
haps 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 representa-
tives are a part}T. 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

The New Irish Constitution

is it a statutory Executive, but it is to be a Parlia-
mentary Executive denned by statute. In the earlier
Bills nothing was more remarkable than the brevity
and allusiveness with which this question of the Govern-
ment 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 dele-
gated 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 supplemented1 by prerogative legislation
in the shape of Letters Patent denning 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

* 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
Musgrovt v. Toy V.L. Rep. XIV. 349, and supra.

The Constitution : A Commentary

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 affects its exercise — in other words,
it is to continue in the hands of the Imperial Govern-
ment— except " as respects Irish services as denned
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 administra-
tion 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.1 Moreover,
in regard to Irish services, the Executive power is to be
exercised by the Lord-Lieutenant through Irish Depart-
ments, and the heads of these Departments are given
the Parliamentary title of " Ministers " and, what is
more remarkable, it is expressly provided (a provision

1 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 Govern-
ment the prerogatives in so far as they are necessary to the domestic
government of the colony. Of. Lefroy, " Legislative Power in
Canada," p. iSo.

The New Irish Constitution

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 admini-
stration. 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 Govern-
ment 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 be-
tween the prerogatives relating to the exercise of Irish

The Constitution : A Commentary

services and prerogatives which cannot be so denned.
Some of the latter may be delegated to the Lord-Lieu-
tenant 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 con-
trolling the constabulary, not all1 of which will be exer-
cisable 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 2 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 inde-
pendent, 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

i No doubt the statutory powers exercisable under the first
two Acts would come within the control of the Irish Government.

• 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 Govern-
ment Board Act (1872), Section 3.

C 35

The New Irish Constitution

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.1 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 formid-
able 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.2 But

* 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).

8 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

The Constitution : A Commentary

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 discre-
tion, if wisely exercised, will enable the Imperial Gover-
ment 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 Plun-
kett — 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 Bill1 which will serve to
strengthen the position of the Senate as an advisory body
and may operate to give it an initiative in the introduc-
tion 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

two chambers should be radically different. See Story's Comment-
aries (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.

* Clause XII. (4).

The New Irish Constitution

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.1

The privileges of the Imperial Parliament are con-
ferred 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 consuetude Parliament are not implied in
the grant of a constitution.2 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

1 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.

• Kielley v. Carson, 4 Moore P.C. 63.

The Constitution : A Commentary

of the two Houses to commit for contempt without
cause shewn — are a sufficiently high standard.

IRISH REPRESENTATION IN THE HOUSE OF COMMONS1

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 depen-
dent 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 pro-
posed 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 Parlia-
ment legislates for the Colonies in the absence of colonial

> 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.

The New Irish Constitution

representatives. Such legislation is now almost ex-
clusively 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 in-
dicated 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 Parlia-
ment is not to be illusory. Mr. Balfour1 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 repre-
sentation 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

1 The Times, April i6th.

The Constitution : A Commentary

whether those members, whatever their numbers,
are to attend at Westminster in the same capacity
as the British members. We are to-day con-
fronted 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 main-
taining 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 responsi-
bility without power in British matters and a Unionist
Opposition power without responsibility. One Execu-
tive 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

The New Irish Constitution

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 adjourn-
ment 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 mem-
bers 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

The Constitution : A Commentary

becoming Nationalists at Dublin — the natural conserva-
tism 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 distribu-
tion 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 disintegra-
tion 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 497 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

The New Irish Constitution

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

The Constitution : A Commentary

this to the creation of a Standing Committee for Eng-
land 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 stage1 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. Com-
mittees 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 amend-
ments which he does not care to accept may invite the
whole House on the Report stage of the Bill to dis-
allow 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 responsi-
bility 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 respon-
sible is not in a position to exercise effectual control
over legislation. Indeed it seems impossible to con-
template a devolution of legislative power without a

1 See Mr. Cecil Harmsworth's essay on the " State of Public
Business," Chap. XV. of this work.

The New Irish Constitution

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 legisla-
tures 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 subordina-
tion of the executive to the legislature and to the
courts. The distinction between Gesetz und Veror-
dnung,1 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 depart-
ments 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,8

1 Cf. for example, Jellinek's "Gesetz und Verordnung" (Frei-
burg, 1887), pp. 20-35.

1 I may here refer to an article of mine in the Nineteenth Century
for April of last year.

The Constitution : A Commentary

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 Govern-
ment 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 Scot-
land devolution in a state of arrested development.
This process of disintegration is reflected in separate
Estimates in finance and in distinct draftsmanship in

The New Irish Constitution

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

The Constitution : A Commentary

relating to marriage is retained in the case of Ireland ;
I doubt if it would be tolerated in Scotland, whose
marriage law differs l 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 ; 2 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.

1 Statutory changes in the common law (it would be more correct
to call it " the civil law") of Scotland are rarely made by Parlia-
ment except on the initiative, or with the consent, of Scottish mem-
bers. 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 Scot-
land."

1 The law relating to matrimonial causes in Ireland is governed
by the Matrimonial Causes and Marriage Law (Ireland) Amend-
ment Act of 1870, and is practically the same as the English Law
before the Matrimonial Causes Act of 1857.

II.— IRISH ADMINISTRATION UNDER HOME

RULE

BY LORD MACDONNELL OF SWINFORD

[The following article was, at my request, written by Lord Mao
Donnell 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 Parlia-
ment ; and the preservation of the executive authority
of the King in Ireland.

Assuming then that the Bill will, in essence, be a

Irish Administration Under Home Rule

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.1 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 anticipa-
tions 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 re-
trenchments 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

1 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.

The New Irish Constitution

through a Ministry responsible to it, will control and
direct the various departments engaged in the trans-
action 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 sub-
sidiary 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 Ire-
land 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.

Irish Administration Under Home Rule

(5) Inspectors of Lunatics.

(6) General Registry of Vital Statistics.

(7) Registry of Petty Sessions Clerks.

(8) Resident Magistrates.1

(9) Crown Solicitors.

(10) Clerks of Crown and Peace.

(n) 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.

1 The control by Government, of course, does not extend to the
magistrates' judicial functions.

The New Irish Constitution

BOARDS EXERCISING STATUTORY POWERS IN IRELAND
BUT NOT UNDER CONTROL OF THE IRISH GOVERN-
MENT.

(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.1

(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).

1 Recorders and County Court Judges are appointed by the
Irish Government.

Irish Administration Under Home Rule

(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 So-
cieties.

(n) Ordnance Survey of Ireland.

(12) Public Works Loan Commissioners.

(13) Exchequer and Audit Department.

It is thus apparent that at present the Irish Govern-
ment 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 exer-
cised 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 disjecta 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 prin-
ciple of common or cognate functions. Such a classi-
fication is an essential preliminary to the establish-
ment 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

The New Irish Constitution

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 des-
tructive of the further extension of Home Rule on
federal lines. The Imperial Parliament should con-
tinue 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

Irish Administration Under Home Rule

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 trans-
ferring the Postal Department to the new Government
is emphasised by the fact that in Ireland this Depart-
ment is worked at a loss of about a quarter of a million
sterling annually. There would, therefore, be a tend-
ency 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 con-
sideration. 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

The New Irish Constitution

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 appoint-
ments 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 examina-
tions in Ireland for the Irish service, associating with
themselves some distinguished Irish educationalists.
Personally I am strongly in favour of the latter alter-
native, on the ground of economy ; and because of the
advantage of using experienced British agencies for
common purposes. Good feeling and mutual under-
standing will be thereby promoted.

Turning to the remaining Imperial Departments,
I think the Exchequer and Audit Office should relin-
quish its Irish functions to a similar office restricted
in its operations to Irish finances only1 ; while the
Public Works Loans Commissioners would probably
cease to do business in Ireland.2 Loans to municipalities

1 Clause XXI. of the Bill provides for this. — EDITORIAL NOTE.

1 " 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.

Irish Administration Under Home Rule

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 ex-
cluded 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

The New Irish Constitution

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 DEPART-
MENTS 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.

Legal Business.

(d) Other Civil Departments, Pensions,

Valuation and Boundary Surveys.

(e) Trade and Commerce.
(/) 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.

Irish Administration Under Home Rule

(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.

The New Irish Constitution

Group VI. — Agriculture.

(1) General.

(2) Relief of Agricultural Congestion. (Con-

gested Districts Board).

(3) Land Improvement, Seeds, Manures, Agri-

cultural 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.1 (Woods and Forests).
1 If transferred to the Irish Government.

Irish Administration Under Home Rule

(6) Temporary Commissions of Enquiry.

(7) Stationery.

(8) Office of Arms.1

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 National-
ist 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 some-
thing 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 Con-
solidated 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 Pro-
visions of the coming Bill will probably be different

1 The Office of Arms is now directly controlled by the Lord-
Lieutenant, and it is a question whether it should not remain so.

The New Irish Constitution

from those of the Bill of 1893, a clause like Clause 19
of that Bill may not be inserted.1

In that case, I think it would tend to the establish-
ment of general confidence if the patronage in con-
nexion 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 sus-
picious 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 pre-
rogatives. 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 con-
nexion with the Supreme Court should, at all events,

1 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.

Irish Administration Under Home Rule

be reserved. It is highly desirable that the appre-
hensions of the Irish Unionists should be allayed in
every practicable way.

Advantage should, I think, be taken of this oppor-
tunity 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 Govern-
ment) 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 main-
tenance of law and order. This anomaly cannot be
avoided : it inevitably arises from the political con-
ditions of the case. The best way of dealing with
the situation will be to maintain existing arrange-
ments which are directed by the Under-Secretary and
to preserve the subordination of the Law Officers to the

The New Irish Constitution

Lord, Lieutenant in all matters relating to the main-
tenance 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 exist-
ing 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 con-
trol of the local authorities.1

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.

1 Clauses II. and V. provide for the reservation of the Constabu-
lary 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.

Irish Administration Under Home Rule

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 separ-
ated 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 Metro-
politan Police under the Lord- Lieutenant's direct con-
trol 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 establish-
ment 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 Im-
perial Government the responsibility for the mainten-
ance 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 depart-
ment 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 Com-
mission, the possibility that Legislation affecting land
may be necessary before the Annuities generally cease,

E 67

The New Irish Constitution

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.1 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 im-
proving 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 con-
trol 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.

1 Under the Bill it is permanently reserved, i.e., " excluded." —
Ibid.

Irish Administration Under Home Rule

The anomaly can be avoided (as suggested in my
Minute appended to the Report of the Royal Commis-
sion on Congestion, 1908) by relieving the Congested
Districts Board of its functions as a purchasing author-
ity and having purchases of land made for it, on its
requisition, by the Land Commission.

Having thus indicated my opinion as to the depart-
ments 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) con-
templated 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 Com-
mittees 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 ob-
servations, however, and without meaning to imply
any preference for " Ministers " over " Chairman of
Committees," I shall employ the word " Minister."1

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

1 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.

The New Irish Constitution

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 ex-
penditure can be proposed to Parliament except by
a Minister of the Crown.1 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

1 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.

Irish Administration Under Home Rule

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 ad-
ministrative 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 effec-
tive check upon wasteful expenditure, I deprecate the
exercise of a meticulous interference in administrative
details.

The secretariat arrangements to be made in con-
nection 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 con-
tinue, during that period, on their present footing.
If there is to be only partial reservation, the portion of

The New Irish Constitution

the existing office staff in Dublin Castle which deals
with the unreserved sections can be detached for em-
ployment 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 com-
petent 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 organ-
ization 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 sub-
ordinate officers £181,209 a year, is not too costly for a
country with a population of 4j 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 distri-
buted 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.

Irish Administration Under Home Rule

In the Irish Council Bill a Committee of Council for
Education was proposed, which provided for the ad-
mission 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

The New Irish Constitution

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 Depart-
ment independent of Irish control. For the " Chair-
man " should be substituted a Minister responsible
to the Legislative Assembly. At present there are
three members, but one of these may, I think, be dis-
pensed 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 expendi-
ture of them, when borrowed for large betterment
undertakings.

The next Department is the Department of Agri-
culture and Technical Instruction. In the scheme

Irish Administration Under Home Rule

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 pro-
vides for two Bodies, to assist and advise the Vice-
President, (who, as in the case of the Local Govern-
ment 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 not-
withstanding 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 Dis-
tricts Board should be relieved of the duty of purchas-
ing 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 New Irish Constitution

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 conduc-
ive 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 con-
gestion 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 desir-
able 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 him-
self able to direct this and also the last Department
remaining on my list.

This Department — for General Purposes — brings to-
gether 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 char-
acter, 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 atten-
tion 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

Irish Administration Under Home Rule

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 Govern-
ment over these co-operative agencies may perhaps
be necessary, but they will flourish most when inter-
ference 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 disqualifi-
cation 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."1

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 other-
wise make for efficiency, if some members on the Privy
Council Committee, were taken from outside the

1 A similar provision appears in the new Bill, but the character
of the Executive Committee is much more explicitly denned. See
Clause IV. ; also Chapter I. of this work. — EDITORIAL NOTE.

The New Irish Constitution

Government. If the Committee were composed of
ten members, seven might be Ministers, and three
members might be taken from outside the Govern-
ment : 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 par-
ticular 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 dishonour-
able betrayal of trust is incommensurate with the ad-
vantages 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 pro-
ceedings 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-Lieu-
tenant 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

Irish Administration Under Home Rule

less than the proportion existing between British
Members and their electorates"). Some Member of
the Imperial Parliament must answer for that Govern-
ment ; 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 Govern-
ment 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.

The New Irish Constitution

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 IN-
TERPRETATION 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 constitu-
tion." 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 Barbadoes. 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 ordi-
nary written law. This is the view most natural to
minds trained in English legal and political tradi-
tion. 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 ;

The New Irish Constitution

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 constitu-
tion, 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."1

The principle, so far as I know, has never been dis-
puted 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 sub-
ject, 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 autono-
mous powers by statutes of the Imperial Parliament.

The accustomed form in such creations is to confer

1 Marbury v. Madison, I Cranch, at pp. 177-8.

The Judicial Committee

in express words power to make laws for the peace,
order (sometimes " welfare "), and good government
of the territory in question. Within the limits pres-
cribed 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.1 It is, therefore, not quite accurate, though
useful in the first introduction of novices to the sub-
ject, 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 over-
sight, would conflict with Imperial requirements, is the
refusal of royal assent by the local Governor on the ad-
vice of his Ministers, or, in the last resort, by the Home
Government. Some of the earlier Acts establishing

1 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.

F 83

The New Irish Constitution

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.1 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 Common-
wealth Act of Australia can be amended at Westminster

1 Ex parte Carew [1897] A.C. 719. It is not clear that the judg-
ment was adequately considered.

The Judicial Committee

like any other Act of Parliament ; but, as in fact these
constituent Acts were framed by Canadian and Austra-
lian 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 Parlia-
ment 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 regu-
larly 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 New Irish Constitution

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 never-
theless 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 pre-
pared to take some pains to reconcile apparently con-
flicting 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."1 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."5 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

1 See Russell v. Reg. (1882) 7 App. Ca., 829, 839.

3 Citizens' Insurance Company of Canada v. Parsons (1881) 7 App.
Ca. 96, 109.

The Judicial Committee

of an Act of the Imperial Parliament, capable of
resolving such a contradiction.1

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 Com-
mittee 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

1 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.

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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. i] 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, l and
empowered the King "to refer to the said Judicial
Committee for hearing or consideration any such other

1 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.

The Judicial Committee

matters whatsoever as His Majesty shall think fit " : a
power more than once exercised in our own time.1 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 there-
fore the insertion of an express clause in the Home Rule
Bill is judicious. Probably no one will seriously pro-
pose 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 under-
stood 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.

1 See Prof. Harrison Moore in Law Quart. Rev., xx. 236.

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 safe-
guards 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

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 denomina-
tions 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 toler-
ance, 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

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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.1 The doctrines of Grego^
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 re-
luctantly, to the pressure of facts. The ideal condition
may be domination of the church ; the practical pro-
blem 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 ten-
dency is towards religious equality ; I find abundant

1 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."

Constitutional Limitations

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 adap-
tive power ; the growth of a policy suitable for and
acceptable in non-Catholic countries and under demo-
cratic 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 univer-
sally 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 cus-
toms, and particularly local customs, permits of varia-
tions in accordance with the necessities of time and
place. Semper eadem, but elastic and always oppor-
tunist— such is the character of the actual policy of the
Church ;l 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

1 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" (Hergenrdther, 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 en-
deavours must be directed to preserve her necessary freedom, or

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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 satis-
fied that due consideration will be given to any repre-
sentations 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.

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
if she does not possess it, to win it back" (Hergenrother, 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 Jahr-
hunderts, Von Dr. Fritz Fleiner.

Constitutional Limitations

groups * ; 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 abandon-
ment 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 denomin-
ations ; the protests of a national Church part of

1 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 subse-
quently reduces them to four ; the first in which heresy and schism
were visited with civil penalty pro salute animee 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 disqualifica-
tions of a civil kind are imposed instead of penalties. The fourth
is that in which all forms of religion claim from Government a pre-
cisely 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.

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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 excep-
tion 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. Speak-
ing generally, they provide for equality of treatment
of religious denominations (Stimson, " Federal and
State Constitutions," p. 137). In the Constitution

Constitutional Limitations

of the United States there is only one Article on the
subject (Amendment, Article i). " Congress shall
make no law respecting the establishment1 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.2 Naturally Switzerland,
with its population nearly equally divided into Catho-
lics 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 liberte de conscience et de croyance est inviol-
able. Nul ne peut etre 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 etre restreint
par des prescriptions ou des conditions de nature ecclesiastique ou
religieuse, quelles qu'elles soient.

" Nul ne peut, pour cause d' opinion religieuse, s'affranchir de
raccomplissement d'un devoir civique.

" Nul n'est tenu de payer des irripots dont le produit est speciale-
ment affect e aux frais proprement dits du culte d'un coramunaute
religieuse a laquelle il n'appartient pas. L'execution ulterieure de
ce principe reste reservee a la legislation federale.

1 As to meaning of " establishment," see Brad field v. Roberts
(1899), 175 U.S. 291.

3 The German Rcichsgesdz of July 3rd, 1869, expressly repeals all
civic disqualifications based upon religion (Laband, Vol. I., p. 148).

The New Irish Constitution

" Article 50. — Le libre exercice des cultes est garanti dans les
limites compatibles avec 1'ordre public et les bonnes mceurs.

" Article 54. — Le droit de mariage est place sous la protection
de la confederation.

" Aucun empechement au mariage ne peut etre fond6 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 denomina-
tions ; 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 provisions1
which are not so complete as those found in the Home
Rule Bill.

Ill

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 con-
nection 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."

1 See as to cases which have come before the Swiss Courts (Buck-
hardt, p. 484).

8 Keith : " Responsible Government in the Dominions," Vol. III.,
I423n. 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.

Constitutional Limitations

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 in-
justice 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 :

" (i) 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 dis-
sentient 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

G 99

The New Irish Constitution

provisions of this section, and of any decision of the Governor-
General in Council under this section." l

Lately there have arisen religious difficulties to which
this section has no application. By the Confederation
Act (Section 91) the Dominion Parliament has exclu-
sive jurisdiction as to marriage and divorce ; jurisdic-
tion which would appear to relate to capacity as to
marriage. By Section 92 in each province the legisla-
ture may exclusively make laws as to " the solemnisa-
tion of marriage in the province," which would appear
to extend to all matters affecting the form and cere-
mony ; 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 Arch-
bishop 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 judg-
ment :

" 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

1 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. :o2.

100

Constitutional Limitations

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 Char-
bonneau's decision is binding in Canada.1

In the Constitution of the Australian Dominion is a
provision similar to that quoted above from the Con-
stitution 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 pro-
hibiting 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.

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

1 " 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 nth) 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 i2th.)

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no better and no worse. It possesses autonomy ; it
enjoys freedom as to doctrine and worship ; its con-
stitution 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 exer-
cise control over all religious bodies possessing property
wrhen 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.1 Further the
authority of a Church cannot be legally used for pur-
poses 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

1 Brown v. Cure de Montreal, L.R. 6, P.C. 157. See O'Keefe v.
Cullen, Report by Fitzpatrick ; also 7 Irish Reports, 319.

Constitutional Limitations

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 deplor-
able, 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 conscientice.
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.' " x

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

1 The Times, March ist, 1911.

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of defining the conditions of membership."1 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."5 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 marri-
age was that the contracting parties should express
to each other their mutual consent by words de prczsenti]
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 coun-
tries ; 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

1 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 promul-
gation 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."

1 " Ecclesia haec matrimonia mixta communiter improbavit
atque detestata," Lehmkuhl Theologia Moralis, Vol. II., p. 511.

104

Constitutional Limitations

greater part of the province of Armagh since the
time of Elizabeth. Not until 1827 was it promul-
gated 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 cele-
brated.1 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 Qth, 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 lay-
man could bring a cleric before a lay tribunal ; a
privilege based upon the words of St. Paul to the

1 See Statement by Monsignor Bidwell in Dublin Review, 148,
p. 327 ; also article " Apostolicce Sedis." Vacant, Dictionnaire
Theologie Catholique.

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* The New Irish Constitution

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., Apostolicce Sedis Modera-
tioni convenit which appeared to revive the privilegium
fori. This, however, is denied by Roman Catholic
theologians ; according to them where no such Concor-
dat 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.1 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 com-
mands are no more — as it thinks fit.

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 pro-
hibiting 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 ; prejudi-
cially 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

1 Reiffensteuel, Vol. II., p. 245, asserts that the privilege is not
lost by immemorial custom, even as to civil matters.

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Constitutional Limitations

body of Ireland, or the consent of the Corporation interested, the
rights, property or privileges of any existing corporation, incorpor-
ated by Royal Charter or local or general Act of Parliament.
(Summary of Clause 4 in Bills of iS8^ and 1893.)

Two comments may be made upon these provisions.
They were so minute as to be at once a source of fre-
quent irritation and certain to give rise to frequent
conflicts with the Irish Legislature and as to be calcu-
lated 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 in-
directly 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 know-
ledge. " 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 religi-
ous liberty would be the presence of a general spirit of
mutual forbearance ; militant bigotry could not per-
manently exist alongside the prevalence of the spirit of

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The New Irish Constitution

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 bring-
ing 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 con-
stant stream, strongly charged with secular elements,
flowing between Ireland and the United States ;
the silent influence of literature and newspapers per-
meated 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 re-
ligious 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 en-
grossing 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 demo-
cratic institutions there may be the same results in

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Constitutional Limitations

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 north-
east 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 Pro-
testant 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

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The New Irish Constitution

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 speci-
fically with the subjects as to which fears of religious
inequality exist : establishment and endowment, educa-
tion 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 deci-
sions 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.
Cure 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

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Constitutional Limitations

co-exist with it. Never, so far as I know, has ecclesias-
tical tyranny been enduring under democratic institu-
tions ; 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 l
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 unsym-
pathetic 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 common-
sense 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 compli-
cated measure are devised, facing fairly the financial

1 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.

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Financial Relations

evils consequent on Tory obstinacy, and avoiding, in
reasonable degree, offence to popular prejudice and
existing interests.

The provisions which will adjust the financial rela-
tions 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 Eng-
land 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, there-
fore, 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 argu-
ment, and Conservatives also have used it chiefly to dis-
credit Mr. Gladstone, who extended the Income-tax to

The New Irish Constitution

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 consump-
tion, 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 rela-
tions, 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. Thencefor-
ward 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

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Financial Relations

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 Parlia-
ments 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 Ire-
land 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
H u

The New Irish Constitution

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 ex-
chequers 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 Parlia-
ment 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 coun-
tries 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,

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Financial Relations

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 govern-
ment 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"1 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 popula-
tion, 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 states-
man 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

1 The " true " revenue differs from the collected revenue, by
making allowance for duties paid in the one country on articles
consumed in the other.

The New Irish Constitution

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 compara-
tively 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 con-
ferred 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

iil

Financial Relations

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 Parlia-
ment 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

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The New Irish Constitution

Colonial administration, she knew no remedy for Ire-
land 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 founda-
tion 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 con-
sistent 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.

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Financial Relations

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 eco-
nomic 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 depopula-
tion of Ireland, the Committee on Irish Taxation, and
the Fenian outbreak in 1866.

The New Irish Constitution

In 1890 Mr. Goschen, as Chancellor of the Exchequer,
in the Conservative Government, moved for a Com-
mittee 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 Com-
mittee 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 Con-
servative 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 recom-
mendations made were far-reaching and suggestive.
There was, as might be expected, great difference of
opinion. The Conservative members and the Nation-
alist 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

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Financial Relations

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 :

" (i) 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 pre-
sented 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 expendi-
ture amounted in Ireland to 195. 7d. per head, while in
Great Britain it only amounted to us. 9d. If the cost
of administering Ireland had been reduced to the like

The New Irish Constitution

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 ques-
tion 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 Con-
solidated 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 adminis-
tration. It did not, however, obtain support in Ire-
land, and in consequence it was not pressed.

We come now to the last stages in the story of Irish

124

Financial Relations

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 finan-
cial 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-
ii 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

125

The New Irish Constitution

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 con-
tribute 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

126

Financial Relations

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 (i) 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 com-
mended 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

127

The New Irish Constitution

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 Parlia-
ment 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 con-
tribution. 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

12$

Financial Relations

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 pen-
sions. 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

Local taxes :

Stamps - - 600,000
Income-tax 6d. - 550,000

Non-tax revenue :
Post Office

6,i8o,ooo
1,150,000

1,020,000

EXPENDITURE.

Contributions to Imperial ex-
penditure on basis of one-
fifteenth of Imperial ex-
penditure :

i ,466,000
i ,666,000

110,000

Debt charges
Army and Navy
Civil charges

Sinking Fund on one-
fifteenth of capital of debt
1 Constabulary ...
Local Irish Civil charges
Collection of revenue :

Imperial taxes - 170,000
Local taxes - 60,000
Non-tax revenue 604,000

Surplus -

3,242,000

360,000
1,000,000
2,510,000

834,000
404,000

£8,350,000 £8,350,000

1 Any charge in excess of £1,000,000 on the Constabulary was to be borne by
the Imperial Exchequer,

129

The New Irish Constitution

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 modi-
fication very favourable to Ireland and reducing con-
siderably 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 con-
sumed 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* 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 :

1 Probably over-estimated.

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Financial Relations

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 Con-
stabulary - - 500,000

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 Resolu-
tions 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

I 131

The New Irish Constitution

with amendment at an early date in the autumn, it is our
duty to amend the Bill with every real amendment and improve-
ment, 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 collec-
tion of those data was a task of great difficulty, for
the Departments did not possess them. The Govern-
ment 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 in-
surmountable.

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, con-
sisting hitherto of the balance of revenue after pay-
ment of Irish charges. As Mr. Gladstone pointed out,
the amount of military expenditure, on which the
proportion of 2 to 28 was calculated, was con-
siderably reduced, and Great Britain had to pay the
difference, and so far the change was favourable

132

Financial Relations

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 Govern-
ment 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 — esti-
mated 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

133

The New Irish Constitution

how incredibly wasteful the method of governing Ire-
land 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 Govern-
ment 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 diffi-
cult to make that distinction as far as the mass of busi-
ness 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 pur-
poses 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

134

Financial Relations

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 prin-
ciple, 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 pro-
duce 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.

135

The New Irish Constitution

The interests of existing judges, and existing civil
servants, and of her constabulary, which remained
under the control of the Viceroy, were secured. The con-
stabulary 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 sub-
ject 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 Govern-
ment under this scheme would have stood as follows :

RECEIPTS.

(r) Excise true revenue ex-
clusive of licences - 3,220,000

(2) Local taxes :

Stamps "j

Income-tax 5- - - 1,495,000

Excise licences J

(3) Postal revenue - 740,000

(4) Other non-tax revenue - 205,000

£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

Surplus

- 1,000,000

£5,160,000

- 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 contribu-
tion to Imperial expenditure, but to let that revenue
fall into the common stock of Irish revenue and to

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Financial Relations

take out of that common stock one third of the " true "
Irish revenue. This third was to cover Ireland's con-
tribution 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 supple-
mentary 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 authori-
ties. 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 :

137

The New Irish Constitution

Irish Revenue, 1892-3.

Total
Estimated
Irish
Revenue.

Amount
Payable
to Irish
Exchequer
Two-thirds.

(i) Customs :
Revenue collected in Ireland
Add estimated allowance for
duties paid in Great Britain on
articles consumed in Ireland -

(2) Excise :
(a) Spirits. Revenue collected
in Ireland ------
Deduct duties ascertained to
be paid in Ireland on spirits
consumed in Great Britain -

(b) Beer. Revenue col-
lected in Ireland 8 1 1 ,000
Deduct estimated al-
lowance for duties
paid in Ireland on
beer consumed in
Great Britain - 187,000

2,136,000

266,000

2,402,000

3,058,000
707,000
552,000

65,000

1,601,000

2,039,000
471,000
368,000

43,000

4,112,000
1,872,000

2,240,000

624,000
194,000

(3) Stamp duties collected in Ireland
(4) Income-tax collected in Ireland -
(5) Crown Lands amount estimated to
Ireland

Total
(6) Miscellaneous Irish Revenue
Totals

be due to

6,784,000

4,522,000

138,000

6,922,000

4,660,000

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 -

(2) Constabulary charges (/i, 459,000) two-thirds of -

(3) Estimated deficit on postal account - ....

Surplus -

3,123,000

973,000

52,000

4,148,000
512,000

£4,660,000

138

Financial Relations

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 reten-
tion 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 r< 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.

139

The New Irish Constitution

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 con-
siderable 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 opposi-
tion 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 opposi-
tion 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 Parlia-
ment 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 nth, the Prime Minister introduced the
Government Bill. He regarded it as the first step in
a comprehensive policy of devolution. It retains per-
manently 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

140

Financial Relations

certain questions. The Bill of 1893 also made neces-
sary 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 Pur-
chase 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 tax-
payer, 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 consider-
ably more than £2,000,000 to Imperial expenditure ; in
1895-6, £2,000,000.* 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 manage-
ment 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 :

(i) Ireland must manage her own finance and

i
1 True Revenue ------- 8,000,000

Irish Expenditure -----_- 6,000,000

Contribution ------ 2,000,000

The New Irish Constitution

must have powers of taxation consistent with leav-
ing 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 supple-
mentary 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 in-
crease of Irish revenue puts an end, during a period of

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Financial Relations

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 Ser-
vices, termed in the Bill " Reserved Services," described
later. It transfers from the British to the Irish Ex-
chequer 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,*
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 * free

1 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.

* £IJ, 339.ooo minus £7,562,000 = £3,777,000.

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The New Irish Constitution

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 in-
cluded 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.

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Financial Relations

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 reduc-
tion of Irish duties will not affect the British Ex-
chequer, 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

145

The New Irish Constitution

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 compli-
cated, and a radical change in that machinery involves
a multitude of changes in detail for which the reform-
ing Act must provide. Root and branch opponents
of Home Rule naturally criticise those provisions,
and exaggerate with Ulster vehemence the administra-
tive difficulties which attend radical change, but the
advocates of great measures, while recognising diffi-
culties 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 Govern-
ment remains responsible and liable for all the "re-
served " services. Here again there is no complication.
Thirdly, the Customs and Excise Clauses appear com-
plicated, 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 Pro-
tectionist 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

Financial Relations

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 unani-
mously and unhesitatingly the principle of simplicity.
They recommend that the power of imposing and
levying all taxation in Ireland, subject to reserva-
tions 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 partner-
ship, and makes the responsibility of the Irish Govern-
ment for Irish administration complete.

The Committee examine the objections to the
grant of complete power of taxation, viz., that (i) 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.

K 147

The New Irish Constitution
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 fortiori 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 sim-
plicity 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 cer-
tain, moreover, that, whatever may be the measure

I4S

Financial Relations

adopted, it will be necessary to take means for ascertain-
ing 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 ex-
penditure since 1896, the date of the Report of the
Royal Commsision ; 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 func-
tion of the Committee was, therefore, purely financial.
They had to collect financial information, a neces-
sary 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

149

The New Irish Constitution

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 be-
tween 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

150

Financial Relations

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 " re-
served " 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 Govern-
ment to that of the Irish Government with the sum
allotted to its support.1 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

1 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. Ex-
planation 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.

The New Irish Constitution

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 Govern-
ment, 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

152

Financial Relations

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 corres-
ponding increase of charge on the British taxpayer,
to be counterbalanced gradually by the normal increase
of Irish revenue, which the Postmaster-General esti-
mates, 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 perman-
ently 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

'53

The New Irish Constitution

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 com-
paring 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 adminis-
tration 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 main-
tain the reasonable contribution to Imperial expendi-
ture 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

'54

Financial Relations

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 " reso-
lute 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 expendi-
ture 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 Con-
servatives has now announced with splendid audacity
that if the " partnership " continues, if the Conserva-
tives 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 re-
sources 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 ?

155

The New Irish Constitution

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 in-
creased 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.

'56

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.

(i) 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 trans-
ferred to the King's Bench Division and the number of
the Puisne Judges of the King's Bench Division has
been reduced by two.1 With every desire for econ-
omy it is believed that the Supreme Court Bench cannot
be further reduced without interfering with the effici-
ency of the public service. The Lord Chancellor of
1 60 and 61 Vic. c. 66, 7 Edward VII. c. 44.

The New Irish Constitution

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-Lieu-
tenant. 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 Parlia-
ment, 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 force1 has jurisdiction over the
Dublin Metropolitan District, which includes the whole
of the City of Dublin and portion of the County. It

* 6 & 7 Will. IV., c. 29 ; 7 Will. IV., and i Viet., c. 25 ; 5 & 6
Viet., c. 24.

158

The Maintenance of Law and Order

consists of 2 Commissioners, 7 Superintendents, 25 In-
spectors, 187 Sergeants and 1,060 Constables, and costs
£154,181 per annum.1 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 Constabulary2 has jurisdiction over the rest
of Ireland, including Belfast. It consists of i Inspector-
General, i 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.3 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 citi-
zens. 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 Depot in the Phoenix
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 con-
trol 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

1 Civil Service Estimates, 1912-1913, Class III., p. in.

2 6 & 7 Will. IV., c. 13 ; 2 & 3 Viet., c. 75 ; 22 & 23 Viet., c. 22.
8 Civil Service Estimates, 1912-1913, Class III., p. 119.

159

The New Irish Constitution

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 Scot-
land, 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 33. 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.1

(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 diminish-
ing 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 crime-
less. The Judges at the Spring Assizes, 1912, were unani-
mous in describing all the counties in Ireland,except two,

1 Taking Census of 1911 as a basis, see Civil Service Estimates
1912-1913, Class III. pp. in and 119, Reports of H.M. Inspectors
of Constabulary for England and Wales, 1910, p. 135.

1 60

The Maintenance of Law and Order

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 conse-
quence 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 ist April, 1878 —
the date when the local prisons and bridewells were transferred to
the Board — and now is as follows : —

1878. 1910.

4 Convict Prisons. i Convict Prison.

38 Local Prisons. i Joint Convict and Local Prison.

95 Bridewells. 15 Local Prisons.

6 Bridewells."

The Unionist Associations of Ireland have recently
published a handbook called " The Home Rule ' Nut-
shell ' 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

161

The New Irish Constitution

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.1 If it were within the power of the Execu-
tive to prevent the police or military from being called
upon to protect the civil officers of the law in the dis-
charge 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 "2 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. 3 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

1 " Against Home Rule," p. 155.

8 4 Bingham, " New Cases," p. 574.

3 Judgments of the Superior Courts in Ireland published under
the direction of the Attorney-General for the information of magis-
trates (1889), p. 23.

162

The Maintenance of Law and Order

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 In-
spector, and the Court unanimously made the order.1
The Lord Chief Justice (Lord O'Brien) in giving judg-
ment 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* 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 Ex-
cellency the Lord-Lieutenant), who directed Mr. Waters not to
comply with the sheriff's demand for protection, has rendered himself

1 Attorney-General v. Kissane, 32 Law Reports, Ireland, p. 220.

2 4 Bingham, " New Cases, p. 574 supra.
L 163

The New Irish Constitution

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 pro-
tection 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 Arch-
bishop 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.1 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 ecclesi-
astics 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 ludi-
crously 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 eccle-
siastical penalty is incurred."

1 "The Motu Proprio 'Quantavis Diligentia' and its Critics,"
by the Archbishop of Dublin, p. 10.

164

The Maintenance of Law and Order

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 inser-
tion 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.1

" 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 confid-
ence 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."

1 Speech upon the Address, February, 1909.

165

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, how-
ever, 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

166

Present Position of the Irish Land Question

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 3ist of March, 1912, there
was due for arrears the sum of £44, 156. 1 The purchase
1 This sum has, since the 3ist of March, been considerably reduced.

167

The New Irish Constitution

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 instal-
ments 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 repu-
diation 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

1 68

Present Position of the Irish Land Question

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 Administra-
tion 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 grant-
ing 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 move-
ments of European thought, but, for the moment, it
may be safely alleged that in no part of Europe is
property safer.

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The New Irish Constitution

PART I
THE FAIR RENT ACTS AND THE LAND PURCHASE Acrs.1

Two Classes of Occupiers of Land in Ireland — Economic
and Uneconomic.

THE occupiers of Irish agricultural holdings are ol
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 ex-
traneous 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 in-
come 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

1 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.

170

Present Position of the Irish Land Question

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 employ-
ments, 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

171

The New Irish Constitution

parts of Ireland would have been excluded, and appli-
cations 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 occu-
piers 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 adminis-
tered, 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 neces-
sary 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 considera-
tion.

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

172

Present? Position of the Irish Land Question

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 pre-
ceding 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."

173

The New Irish Constitution

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 compulsory7 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 nine-
teenth 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

174

Present Position of the Irish Land Question

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 for-
feiture of the tenant's estate. Statute after Statute was
passed for this purpose. The whole principle of the
Common Law was reversed. Chief Justice Penne-
father 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.

175

The New Irish Constitution

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 govern-
ing the relations of landlord and tenant in Ireland
became more and more favourable to the owner. This

176

Present Position of the Irish Land Question

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 denned as founded on con-
tract 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-pay-
ment 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 im-
provements 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 improve-
ments 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

'77

The New Irish Constitution

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 manage-
ment 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 Re-
lations 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 pro-
ductive, and the demand caused by an ever-growing

178

Present Position of the Irish Land Question

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 intro-
duction of Free Trade made it the interest of most
landlords to get rid of their small tenants as expedi-
tiously and as completely as possible. Now came the
era of pasture and larger farms. Although the popula-
tion 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-pay-
ment 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 pro-
posal 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 des-
cribed 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 I7th, 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

M 179

The New Irish Constitution

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 sub-
ject to arbitrary increases of rent.

The Act of 1870 did three things : (i) It gave com-
pensation 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 sub-
divided 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 improve-
ments 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 land-
lord 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

180

Present Position of the Irish Land Question

agreements, and the Court in awarding compensa-
tion 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 establish-
ing that the particular usage under which he held
was within it.

The three great reforms introduced by the Act of
1870, namely : (i) The right to compensation for dis-
turbance ; (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

iSi

The New Irish Constitution

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 :
(i) Security of tenure at a fair rent ; and (2) a special
and expert tribunal to decide on the amount of the rent
at which lie 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 — sub-
ject 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 con-
tained 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 land-
lord 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

182

Present Position of the Irish Land Question

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 else-
where. 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. Con-
sequently, 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

183

The New Irish Constitution

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 owner-
ship 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.

184

Present Position of the Irish Land Question

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 Commis-
sioners were empowered to sell to tenants of Church
Lands their holdings at prices to be fixed by the Com-
missioners themselves. If the tenants refused to buy
on the terms offered to them, the Commissioners could
sell to the public. The Church Temporalities Com-
missioners 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

18?

The New Irish Constitution

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 Com-
mission in the Landed Estates Court.

The Purchase of Land (Ireland) Act, 1885 (the " Ash-
bourne Act ").

Under this Act — commonly known as the " Ash-
bourne 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

1 86

Present Position of the Irish Land Question

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 (ex-
changeable 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| 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

187

The New Irish Constitution

required for this stock are paid out of a " Land
Purchase Account," established by the Land Commis-
sion (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 repay-
ment 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 (i 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,

188

Present Position of the Irish Land Question

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 3ist, 1910,
was about 48! million pounds in respect of advances
made on the security of the fund, and, taking pending
applications for advances into account, the approxi-
mate 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| per cent, being for interest, and ij 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 ad-
vance 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 Commis-
sion to dispense with the whole or any part of the
guarantee deposit required under the Act of 1885 if

i s9

The New Irish Constitution

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 3ist, 1910,
was 46,828, amounting in all to £13,145,762, and being
at the rate of 177 years' purchase of the rents (Land
Commission Report, 1910, p. no).

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 parti-
cular 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 intro-
duced 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 Commis-
sion 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

190

Present Position of the Irish Land Question

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 i). When
a landlord is willing to sell in this manner, the Com-
missioners, 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| per cent, was for interest and i J
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

191

The New Irish Constitution

annuity rate which the tenant had to repay was reduced
to 3j per cent., of which 2f per cent, is for interest and a
J per cent, for sinking fund. This reduction in the
sinking fund lengthens the period over which the re-
payment 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 Com-
missioners 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

192

Present Position of the Irish Land Question

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 legis-
lature, and in 1907 Mr. Birrell passed an Evicted
Tenants Act which enabled the Estates Commissioners
to acquire untenanted land compulsorily for the pur-
pose 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 Com-
missioners before May 1st, 1907. Up to March 3ist,
1911, as many as 12,398 persons had applied for holdings

193

The New Irish Constitution

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 be-
came 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 hold-
ings was provided by the issue of a Stock bearing
interest at 2| 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 Guaran-
tee 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 ex-
hausted, and consequently all subsequent issues of
Stock for Land Purchase purposes would have to be

194

Present Position of the Irish Land Question

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! per cent,
instead of 3^ 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 dis-
tributed 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 ist, 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,

N 195

The New Irish Constitution

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 Com-
mission would be five millions, and at that rate it would
take more than eleven years to complete these agree-
ments. 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| 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 pan passu, each class claiming on a
separate fund.

196

Present Position ot the Irish Land Question

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 3ist,

1912 :

TABLE I

Act.

No. of
Purchasers.

Amount of
Advances.

I — Irish Church Act, 1 869

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, 1888, and

1889

25,367

9,992,536

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

* Estimated number of Purchasers on re-sale.

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 3ist, 1912).

TABLE II

Purchasers.

Advances
applied for.

Act of 1903
Act of 1909 -------

118,360
40,733

35,794,157
7,094,725

* Includes lands oi an estimated value of £4$ millions for the purchase of
which the Congested Districts Board are in negotiation.

197

The New Irish Constitution

TABLE III

Table giving (i) 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 pro-
ceedings for sale had not been instituted up to March
2nd, 1912 :

(c)

(6)

Lands in

respect of

Lands agreed

which proceed-

(a)

to be sold but

ings for sale

not yet vested

k.ive not been

Lands sold and

in purchasing

instituted under

vested in

tenants (in-

the Land

purchasing

cluding lands

Purchase Acts

tenants, or in

comprised in

(the estimated

___

the Estates

Estates for the

Purchase

Totals.

Commissioners

sale of which

Money of same

or Congested

to the Estates

being calculated

Districts

Commissioners

on basis of

Board, for re-

and Congested

Purchase-

sale to Tenants.

Districts

Price of Poor

Board pro-

Law Valuation

ceedings have

of lands sold

been instituted).

to March 3ist,

1910, under the

Act of 1903).

ACTS

1870-1896.

Number of Holdings

73,812

—

73,812

Area -

2,508,938

—

2,508,938

Poor Law Valuation

£1,399,188

—

— -

£.1399,188

Purchase Money -

£24,779,176

—

£24,779,176

ACTS

1903-1909.

Number of Holdings

143,618

167,319

—

Area -

4,637,183

4,291,72?

7,301,798

16,230,706

Poor Law Valuation

£2,418,136

£2,250,372

£3,993,971

£8,662,479

Purchase Money

£49,202,298

£45,536,851

£82,263,747

£177,002,896

GROS

s TOTALS.

Number of Holdings

217,430

167,319

—

Area -

7,146,121

4,291,725

7,301,798

18,739,644

Poor Law Valuation

£3,817,324

£2, 2 ^0,372

£3,993,971

£10,061,667

Purchase Money -

£73,981,474

£4:036,851

£82,263,747

£201,782,072

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.

198

Present Position of the Irish Land Question

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 :

Rate of

Purchase Act.

Rate of
Annuity.

Interest
comprised

Sinking Fund
comprised

Number of
years

in Annuity.

payable.

Per cent.

1881

1885

1891

1896

As in Act of 1 8

91, subject to de

cadal reduction.

1903

68^

1909

65i

PART II

THE STATUTES RELATING TO THE RELIEF OF CONGES-
TION IN IRELAND

Two Classes of Occupiers in Ireland — Establishment
of the Congested Districts Board

MOST of the earlier Statutes which have been sum-
marised 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 hold-
ings 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 Dis-
turbance 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

199

The New Irish Constitution

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 under-
stand 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, how-
ever, finally recognised that, in many parts of the coun-
try, the average character of the holdings was below
the level which is necessary in order to make a reason-
able standard of living possible, and it was then re-
solved 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 them-
selves 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 " Con-
gested 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 305. for each person. This definition
is, of course, arbitrary, and in fact includes many dis-
tricts through which a man might drive for miles
without seeing a human habitation, and excludes dis-
tricts in which the population is in truth " Congested."

200

Present Position of the Irish Land Question

The word connotes not the over-population of partic-
ular 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 pro-
nounced 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 Commis-
sioners 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 " Con-
gested." 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 inter-
mixed 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

201

The New Irish Constitution

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 con-
nected 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 pri-
vate 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

202

Present Position of the Irish Land Question

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 con-
tained 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 ad-
vances 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 re-
arrangement 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 1 88 1, and further extended these powers to
holdings not subject to statutory tenancies. The Act
also enabled the Board to purchase land outside a con-
gested 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 ;

203

The New Irish Constitution

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 recon-
stituted 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 Pur-
chase 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 pur-
chasing estates and land compulsorily through the
Estates Commissioners was given to the Board within
all congested districts.

Up to February ist, 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

204

Present Position of the Irish Land Question

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 con-
gested 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 con-
tracts 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

205

The New Irish Constitution

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 com-
pulsory 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, engineer-

206

Present Position of the Irish Land Question

ing 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 denned 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 lodg-
ment 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 dis-
tricts 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 com-
pulsorily 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.

207

The New Irish Constitution

If the Council cannot agree with the owner as to
the price to be paid, they must prepare a scheme show-
ing 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 pay-
able, and at the passing of the Act of 1906 were as
follows :

Period.

Rate of Interest.

Annuity covering
Principal and
Interest.

20 years -
30 „

3! per cent.
3l

£ s. d.
709
5122

40 „

So „

4
4i

5 i i
4 17 2

The Act of 1906 enabled the Rural District Councils
to obtain advances for the purposes of the Labourers
Acts up to 4j 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 3j per cent, (covering both
principal and interest) and payable for 68J years.
This annuity rate has been continued in the case of

208

Present Position of the Irish Land Question

advances for the purposes of the Labourers Acts by
the Irish Land Act, 1909, which Act increased the
annuity rate to 3^ per cent, in respect of all advances
for lands purchased under the Land Purchase Acts
since September i5th, 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\ 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 £4 175. ad. (the lowest amount payable before
that Act) to £2 is. 7d. the amount payable now — a
reduction of almost 57 per cent.

209

The New Irish Constitution

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 sanc-
tion. The loans sanctioned under the Act amount
to close on 4j millions. This is the amount provided
for by the Act of 1906. Another million on the same
terms as the /J.J 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 lod. per week, and for a cottage with
an acre of land about is. 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 pre-
ceding, 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 legis-
lation 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.

210

Present Position of the Irish Land Question

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The New Irish Constitution

Where dilapidated hovels stood formerly, decent cot-
tages 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.

The table on preceding page gives the Summary of
the Return made to the order of the House of Commons
dated March 28th, 1911, in respect of labourers' cottages
in Ireland.

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

Present Position of the Irish Land Question

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 Com-
mission 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 registra-
tion will be to facilitate the sale of land by reducing
the cost and simplifying the process of transfer. Regis-
tration of title exists wherever a peasant proprietary

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has been established. It is almost a necessary con-
comitant 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 i] 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.

214

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 formulae, and the well-known
words carry to them the solace of the ancient pre-
judices.

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

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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 con-
vinced 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 civiliza-
tion 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."

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Irish Nationality

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 com-
pliment to their spirit ; for, as he says, " my Lowland
ancestors in Scotland had precisely the same con-
tempt 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

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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 Union-
ist 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 informa-
tion " 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 mis-
used 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

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Irish Nationality

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 " Father-
land." 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

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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 " I r elands," 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 dis-
appearance, 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

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Irish Nationality

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 remark-
able 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. Bel-
fast Orangemen indeed, as " the loyalists of Ireland,"

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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 " common-
wealth 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 Eng-
land 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

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Irish Nationality

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 romanti-
cally 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

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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, in-
justice, or usurpation ; but there seems to have been
among the people a social content far beyond that in
mediaeval England, a long security of farmers, a pas-
sionate 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,

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Irish Nationality

free and unfree, were traced to a common ancestry.
Pride in the country which they possessed was main-
tained by the Dinnsenchus or collection of topo-
graphical legends dealing with hundreds of places,
mountains, rivers, earthworks, roads, strands, vener-
able 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 Christian-
ity, 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 jar-
gons, treatises on the Ogham alphabet, dictionaries of
celebrated men and women of Ireland from remote
antiquity, numerous festilogies of the national saints

The New Irish Constitution

in prose and verse, with their pedigrees and legends.
What mediaeval 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 intelli-
gence, 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 " paries upon hills " that seemed
so grievous to Elizabethan rulers. In every Federal
State, such as Leinster or Munster, and in every petty

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Irish Nationality

State, they were the ever-recurring guarantee of the
national civilization. The feeling of the people is
shown by the constant references to " frequent assem-
blies," " 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 assem-
blies— against stiffness of delivery, a muttering speech,
hair-splitting, uncertain proofs, despising books, incit-
ing 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 noo 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

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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 re-
straints." " Annals there are verified, every division
into which Erin was divided ; the history of the house-
hold 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 entertain-
ment," 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

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Irish Nationality

professional works to kings, and rewards were given
for every art that was just or lawful to be sold or ex-
hibited 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 pro-
vided 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 establish-
ments 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

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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 Ire-
land 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 con-
ditions were overturned, and statesmen then as now
crippled the communities they governed with pre-
parations for war in the interests of peace.

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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 Euro-
pean 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 Ire-
land," the island was to have no home-born king
" coming to Tara," as the mediaeval 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 re-
establish 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.

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The people were inspired by more than material con-
siderations, 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 teach-
ing, 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 Parlia-
ment. But from this " British invention " the Celtic
people were in effect shut out, either formally or
practically. The Parliament was conferred on Nor-
mans, 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

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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 " patri-
otism." 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

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The New Irish Constitution

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 prac-
tically 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

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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 diffi-
culty." How it was intended to work by Henry VII.
we cannot tell, but the violent methods of later Tudor
sovereigns respected no barriers. Whenever Poyn-
ing'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 hind-
rance 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 ;

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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 ist,
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 Ire-
land, 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

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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 pre-
pared to carry the matter to a court of law. The
struggle lasted eighteen months. Parliament was ad-
journed, 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

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The New Irish Constitution

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 con-
cession to placate opponents. " From henceforth " the
knights and burgesses were to be resident, under
penalty of fines — a provision well calculated to dis-
appoint 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 per-
ambulate the whole realm and divide it into shires as
they thought convenient, without further reference to
Parliament. Henceforth any Irish chief or Norman

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Irish Nationality-
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 Commis-
sioner 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, notwith-
standing 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 pre-
viously announced in the House that Parliament would not sit
on that very day on which the laws against religion were enacted ;

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The New Irish Constitution

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

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Irish Nationality

known to the high court in Ireland could not be re-
formed 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 con-
sideration thereof." The remonstrants did in fact
force some concessions ; that provisions made by the
present Parliament for the common weal, the aug-
mentation 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 proclama-
tions should pass into law, " Poyning's Act notwith-
standing."

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 " captain-
ships " 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

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The New Irish Constitution

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 Parlia-
ment 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 b}^ 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

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Irish Nationality

attainder of Desmond, and a hundred and sixty more
"traitors," and for the confiscation of Minister; one
to limit the landowners' old-established rights of convey-
ancing 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 oppo-
nents 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 dis-
pleasure on him from the Queen."

«4S

The New Irish Constitution

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 " dis-
turbers 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 diffi-
culty, 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 com-
fort 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 men-
tioned how they had " willingly consented to attaint and
stain in blood Her Majesty's disloyal subjects and

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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 sug-
gested 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 fol-
lowed 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

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The New Irish Constitution

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 constitu-
tional 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 constitu-
tional 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

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Irish Nationality

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 Govern-
ment. 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 constitu-
tional 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

249

The New Irish Constitution

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."

250

IX.-IRELAND AS A DEPENDENCY
BY PROFESSOR A. F. POLLARD

" THE ocean," said Grattan, with reference to the
connexion between Great Britain and Ireland, " pro-
tests 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 incorpora-
tion ; but, for five out of the six and a half centuries
of English parliamentary history, Ireland had a sub-
ordinate 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

251

The New Irish Constitution

of British dominion in India, in Canada, in the West
Indies, and in South Africa. Spaniards, it is true,
landed at Smerwick in 1579 an(^ a^ 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 con-
ditions, 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 seven-
teenth century by French descriptions of English
lawlessness and barbarity. A French guide-book,

252

Ireland as a Dependency

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 l unsuited to the Irish soil and tem-
perament, 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 can-
not 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
1 Cf. Mr. Balfour, The Times, November 7th, 1911.
253

The New Irish Constitution

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 Parlia-
mentary weapons ; for it is a poor country which can-
not 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 decentralisa-
tion. England would have been no less unfortunate
had William the Conqueror only succeeded in establish-
ing 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 follow-
ers 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

254

Ireland as a Dependency

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 with-
drew within the Pale and maintained a troubled exist-
ence 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 West-
minster, their constituents, while obeying, instructed
them to reject all financial demands upon Ireland made
at St. Stephen's. Demands made at Dublin were not,

The New Irish Constitution

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 pre-
tender to Henry VI I. '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

256

Ireland as a Dependency

i *

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 con-
fiscated 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 Mac William. Whatever plans for the expropria-
tion 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,

257

The New Irish Constitution

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 piece-
meal 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 defence-
less.

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 dis-
ordered 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

Ireland as a Dependency

with English settlers and partly with such Irish as
would abjure their native language, laws, and cusioms.
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 " civil-
ity and good government ; " and in 1622 a Royal Com-
mission 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 mission-
aries 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 adven-
titious ally of the Irish people in their resistance to the
intruding imperialism of their English foes.

This coalition of hostile forces supplied the English

J> 259

The New Irish Constitution

Government with what it considered convincing argu-
ments for persisting in its course ; fresh Jesuit mis-
sions 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, Gren-
ville, 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 oppor-
tunity 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

260

Ireland as a Dependency

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 indescrib-
able 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 sup-
plied 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

261

The New Irish Constitution

Catholic disinherited upon the smiling meadows of
their Protestant supplanters.

Upon this broadening basis of plantation was devel-
oped 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 Parlia-
ment of a caste, the instrument of oppression. Ten
counties only sent representatives to Elizabeth's Parlia-
ment of 1560 ; plantation increased the number to
twenty-seven in 1585 ; and the tale was fairly com-
plete 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 preten-
sions. So the Dublin Parliament idly strove to emu-
late its exemplar at Westminster, and clamoured in
vain for responsible government, for control of the

262

Ireland as a Dependency

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 Hibemis 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 Straff ord ;
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 predomi-
nance 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 dis-
tinctions and family feuds, and had evoked a national
spirit which could not be corrupted by bribes or dis-
armed 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

263

The New Irish Constitution

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

264

Ireland as a Dependency

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 con-
science, 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 destruc-
tion of the Protestant Dutch, valued their hold over

265

The New Irish Constitution

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. Stafford'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 pro-
hibited 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 practi-
cally excluded by a duty of 30 per cent. Having thus
impoverished Ireland, Englishmen based their case
against Irish claims to self-government on the thriftless-
ness 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 power-
less 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 parlia-
ments, a common impulse began to pervade the care-
fully dislocated members of the Irish body politic.
Scandals like " Wood's Halfpence " provoked a national
protest in Swift's " Drapier's Letters " ; a common feel-
ing began to mitigate the ferocity of the penal code,

?66

Ireland as a Dependency

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.

267

X.— IRELAND, 1782 AND 1912 l
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 Depart-
ments, 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

i 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.

268

Ireland, 1782 and 1912

of the two countries, their past history, and their indus-
trial 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." l 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
1 Speech of October 28th, 1738 : " Grattan's Speeches," i., 183.

269

The New Irish Constitution

Grattan, " a foreign legislature, a foreign judicature, a
legislative Privy Council, and a perpetual army," 1 and
they were set forth in the Amendment to the Address
carried by him in the Irish Parliament on April I7th.2

" 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 engage-
ment ; 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."*

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 advan-
tage, 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.4 Of a similar character
was the language of Lord Shelburne.

" If," he said, writing to the Duke of Portland, on the day follow-
ing that on which Fox had addressed the Chief Secretary, " the
ties by which the two kingdoms have been hitherto so closely united

1 Grattan to Fox, April i8th, 1782 : " Fox's Correspondence,"

i-, 403-

• " Grattan's Speeches," i., 129.

* " Fox's Correspondence," by Lord Russell, i. 412.

' Lord Rockingham to Lord Shelburne, May 25th, 1782, " Parlia-
mentary History," xxxiv., 979.

270

Ireland, 1782 and 1912

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 prevent-
ing that confusion which must arise in all cases of common concern
from two Parliaments with distinct and equal powers, and without
any operating centre." 1

On May nth, 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.'"2 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 ; 3 and he urged a little judicious tem-
porizing 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,4 and there was,
above all, to be no delay in granting all the demands

1 " Life of Lord Shelburne," iii., 144.

2 " Fox's Correspondence," i., 417, 418

3 " Life of Lord Shelburne," iii., 145.
• See " Life of Grattan."

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The New Irish Constitution

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 conces-
sions1 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.2 The concession of all the Irish demands was
accordingly decided upon. The preliminary steps
were taken on May I7th, 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

1 " Fox's Correspondence," i., 416 ; " Life of Lord Shelburne,"
iii., 143.

» " Life of Lord Shelburne," iii., 146.

272

Ireland, 1782 and 1912

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 after-
wards 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 Con-
stitution of both countries." 1

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 I7th. 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

1 Fox : " Speeches," ii., 64, 65.

273

The New Irish Constitution

prorogation of the Irish Parliament was accordingly
suffered to take place on July 27th, and here the
matter ended.1 " 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."1

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 charac-
ter ; but that, on the contrary, they were fully con-
vinced 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

1 " Grattan's Speeches," Vol. III., 355, 409 ; January I5th,
February 22nd, 1800. " Fox's Correspondence," i., 426 ; " Life
of Lord Shelburne," iii., 149 ; " Parliamentary History," xxx., 957
(Speech of General Fitzpatrick).

* Speech of July igth, 1782.

274

Ireland, 1782 and 1912

colleagues, and said that, above all, Mr. Fox knew
nothing of the project contained in the despatch of
June 6th.1 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 com-
municated to him.2 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 pre-
vented 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 ? Evident!}/ it was not a
legislative union, though they wished to retain the
final judicial appeal in London. The object of the

1 Speech of Grattan, January 15th, 1800 : " Speeches," Vol. III.,
355-
1 " Fox's Correspondence," i., 431.

s 275

The New Irish Constitution

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 acknow-
ledged ; 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 dependen-
cies ; 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." 2 "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/

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 suprem-
acy, 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

1 Lord Shelburne to the Duke of Portland, June gih, 1782.

2 " Life of Lord Shelburne," iii., 150.

3 " Parliamentary History," xxxiv., 675, 678 ; " Memoirs of
the Whig Party," by Lord Holland, 1. 147 ; " Life of Lord Shelburne,"
iii- 554. 555-

276

of external administration and policy : the Fleet, the
Army, and the diplomatic and commercial establish-
ments. " 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." *

Very different were the views of the Irish Parliamen-
tary 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 com-
bat 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

1 Letter on the Affairs of Ireland, 1797.

277

The New Irish Constitution

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.1 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.2

1 28 Geo. III., c. 28.

• Much interesting light has been thrown on the history of the
struggle in 1782-1783 between Grattan and Flood, by the publica-
tion 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

278

Ireland, 1782 and 1912

The following propositions can, then, be based on
the events of 1782 :

(i) That the Irish leaders insisted on the
freedom of Ireland from interference by the British
Parliament both in internal and external affairs,

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 Parlia-
ment to legislate and tax in the " settled" Colonies of the Crown
concurrently with the local representative assemblies, and, if neces-
sary, 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, how-
ever, from a legal point of view, Lord Mansfield showed, would not
bear examination, and he laid down the law to be, that the Parlia-
ment of Great Britain had an absolute legislative supremacy over
her Colonies — and by implication over Ireland — in all cases what-
ever, 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..

279

The New Irish Constitution

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 cir-
cumstances of the time, and considered the con-
cession 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 representa-
tion was an intolerable thing, and contrary to the first
principles of the Constitution. It was with these con-
siderations 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

280

Ireland, 1782 and 1912

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 unexam-
pled 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 un-
trodden 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 Scot-
land. The period was, in fact, one when Europe was
still under the influence of a set of ideas which worked

281

The New Irish Constitution

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 nation-
ality 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 incorpor-
ate union : the possibility of an intermediate arrange-
ment they ignored.

And yet an experiment in Federal Government is
not to be approached with a light heart, and per-
haps 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 Constitu-
tion, 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.

282

Ireland, 1782 and 1912

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 obedi-
ence 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 Con-
stitution 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 per-
manent ; 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

283

The New Irish Constitution

avoid the dangers which are the natural inheritance of
all Federal forms of Government.

The possibility, then, of establishing a Federal con-
nection 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 suprem-
acy 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

284

Ireland, 1782 and 1912

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 select-
ing 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 inter-
ference 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 Parlia-
ment ? 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."1

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

1 " Life of Lord Shelburne," i., 285.

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The New Irish Constitution

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 Administra-
tion, 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 pros-
perity 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 adminis-
tered, 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 occas-
ional 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

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Ireland, 1782 and 1912

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 travers-
ing 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

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one another were likely to be, judging from his experi-
ence 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 character-
istics 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

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Ireland, 1782 and 1912

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 institu-
tions under which they live is the only solid guarantee
of their permanence.1 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.

1 Montesquieu, " Considerations sur la Grandeur et la Decadence
des Romains."

289

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 Revolu-
tion. 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 mouth-
piece 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

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Grat tan's Parliament

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 Parlia-
ment. 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 auto-
nomy, not for independence. With the demand there
rapidly emerged the instrument of its realisation.
Ireland was almost without troops when France

T 391

The New Irish Constitution

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, deter-
mined 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 en-
couraged 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 with-
drawn after an impressive debate ; but when the
Volunteer Convention, which met shortly after, unani-
mously 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

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Grattan's Parliament

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 sub-
ordination 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 popula-
tion, 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. Govern-
ment by patronage survived the Renunciation Act,

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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 Praetorian
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 influ-
ence endangered, the main responsibility for its defeat
lies with the agents of the British Government. Having

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Grattan' s Parliament

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 com-
mercial 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 ex-
penditure. 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 objec-
tion, 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 West-
minster, 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 com-
mercial 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

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The New Irish Constitution

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 fermenta-
tion 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 recog-
nised 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

296

Grattan's Parliament

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 en-
couragement 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 Revo-
lution 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 suc-
ceeded in whittling down the concessions till they were
scarcely worth granting. Though Flood and Charle-
mont were immovably opposed to the extension of
any kind of political rights to Catholics, and though
Grattan always explicitly reserved Protestant ascen-
dency, 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 citizen-
ship. 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

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The New Irish Constitution

to the Catholic majority. Recent attempts to minimise
the importance of the Act, on the ground that the fran-
chise 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 Govern-
ment should be displaced. Shortly before his depar-
ture Pitt and Grenville met Portland, Spencer, Wind-
ham 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 pos-
sessed enormous borough influence and was often

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Grattan's Parliament

described as the King of Ireland. Fitzwilliam after-
wards stated that he told Pitt the step might be neces-
sary 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 com-
munications, Portland delayed his reply and finally
urged him not to commit himself. Next day Pitt wrote
censuring the removal of Beresford, but without men-
tioning 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 Fitz-
william 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 ex-
plicitly vetoed a change of system, it would have been
wiser to have refused the post. The aims of the two

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The New Irish Constitution

men were fundamentally different. Though in favour
of admitting Catholics to Parliament, Pitt thought it
safer to defer emancipation till a Union was accom-
plished, and therefore determined to preserve Govern-
ment 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 con-
sternation. 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 anaemic per-
sonality, 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 dis-
criminating study of Clare, the late Litton Falkiner
has advanced all that can be said for the ablest and

300

Grattan's Parliament

most ruthless of the opponents of the Grattan Parlia-
ment, 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 com-
pelled 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 force-
fulness 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 com-
mand of the machine, there was no place for Grattan
in his own Parliament. He disapproved the revolu-
tionary 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 Parlia-
ment ; 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 ;

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The New Irish Constitution

but the American war had shaken Ireland from her
slumbers, and the debates on the Commercial Pro-
positions 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 suc-
ceeded 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

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Grattan's Parliament

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 ex-
periment 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-opera-
tion. 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 Corn-
wallis proposed in 1798 that Castlereagh should be-
come 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 appoint-
ment 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 Ascend-
ency is true but irrelevant ; for he was ready to cham-
pion such measures of Parliamentary Reform and

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The New Irish Constitution

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 Frame-
work 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 parlia-
ment 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 induce-
ment to religious bigotry, it carried the policy of tolera-
tion 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."1 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 representa-
tion in autocratic Russia. The duty of British states-
men 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

1 Lecky.
304

Grattan's Parliament

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.

305

XII.— "THE GOVERNMENT OF IRELAND IN
THE NINETEENTH CENTURY"

BY R. BARRY O'BRIEN

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

306

Government of Ireland in the igth Century

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

U 307

The New Irish Constitution

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 de-
plored, 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

308

Government of Ireland in the igth Century

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 assassina-
tion. . . . Every circumstance combined in that country to exas-
perate 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 be-
lieved 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 con-
fiscation of the tenants' improvements by the landlords,
lay at the root of the trouble, and that legislation to

309

The New Irish Constitution

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 exclu-
sive 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 educa-
tion 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 pres-
sure 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.

ALL, then, that happened, between 1800 and 1829, ser-
ved 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.

310

Government of Ireland in the igth Century

Ireland remained as disaffected and disturbed as
ever. Why ? Because Catholic Emancipation (de-
layed for twenty-nine years), was, when carried, practi-
cally 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 Govern-
ment 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 practi-
cally managed the system. The books, with one ex-
ception, 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." x

In 1832 a worthless Irish Reform Act, under which
the representation of the country became " virtually
1 For further details see Dublin Castle and the Irish People.

The New Irish Constitution

extinguished,"1 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 deter-
mination to trample on popular rights and to disregard
public opinion — these were the characteristics of Eng-
lish 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 dis-
turbance.

Ill

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 sus-
pend 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 Parlia-
ment can do justice to Ireland. I do not think it can, but I mean

1 Bright.
312

Government of Ireland in the igth Century

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 2oth, 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 satis-
factory 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 Parlia-
mentary 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. Suc-
cessful (by the Irish vote) in the Commons, but defeated

313

The New Irish Constitution

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 Eng-
lish methods in Ireland : In 1833, a Royal Commission
was appointed to consider the subject of Irish destitu-
tion in reference to the advisability of establishing
"workhouses" to alleviate Irish distress. The Com-
mission 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

Government of Ireland in the igth Century

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."1

For the sick and impotent poor the Royal Com-
mission 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 expedi-
ent, 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 recom-
mended the establishment of workhouses. The Govern-
ment 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.2

In concluding this story let me quote the following
brief extracts from the Vice-regal Commission of
1903-6 :

1 Poor Law Commission (Ireland) Report 1903-1906, p. 12.
a " Dublin Castle and the Irish People."

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The New Irish Constitution

" 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 munici-
pal reform. There were at the time sixty-eight munici-
palities 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 Com-
mons, 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 alto-
gether. 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 con-
sented 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

316

Government of Ireland in the igth Century

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.

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,

317

The New Irish Constitution

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 :

" (i) 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 entrepot of both, if the watchful jealously of England had not
rendered her natural advantages nugatory.

" (2) She was entitled to legislative independence ; the Parlia-
ment 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."1

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 scanda-
lous 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
1 Gavan Duffy : " Young Ireland."

318

Government of Ireland in the igth Century

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. Ire-
land 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 Mel-
bourne 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.

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 con-
fiscation by the landlords, protection of himself from

319

The New Irish Constitution

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, ac-
cording 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 them-
selves by forming secret societies whose operations
struck terror in the land. In 1838 the Under-Secretary,
Thomas Drummond, boldly told the Tipperary Magis-
trates, 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

320

Government of Ireland in the iQth Century

the neglect of those duties in times past is mainly to be ascribed
that diseased state of society in which such crimes take their rise ;
and it is not in the enactment or enforcement of statutes of extra-
ordinary severity, but chiefly in the better and more faithful per-
formance 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 reappear-
ance 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 land-
lord 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 pro-
tection, 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 occupa-
tion and tenure of land in Ireland. In 1845 the Com-
mission reported that :

" (i) All the improvements in the soil were made by the tenants.

321

The New Irish Constitution

" (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 pro-
posing that tenants should be entitled to compensa-
tion, on disturbance, for prospective improvements
of a permanent nature, made with the consent of the
landlord ; or, without his consent, provided the im-
provements 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 compensa-
tion as was deemed fair and equitable. This Bill
was read a second time, then referred to a Select Com-
mittee, 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 Craw-
ford brought forward a Bill to extend the Ulster
Custom (practically fixity of tenure and free sale)

322

Government of Ireland in the igth Century

to the rest of Ireland. The Government — a Liberal
Government — took no interest in the subject. Craw-
ford 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 Govern-
ment 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 land-
lords 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 purport-
ing 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 Com-
mission had reported in favour of the tenant's claims,
and recommended the enactment of laws for his pro-
tection. 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

x 323

The New Irish Constitution

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),1 the
Tory Government introduced a Bill giving to the tenant
compensation for improvements, prospective and retro-
spective, 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 Parlia-
mentary 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 ; z it gave certain facilities in

1 " 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."

* Gavan Duffy : League of North and South,

324

Government of Ireland in the igth Century

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 eject-
ment, 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 con-
ditions 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 for-
ward 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

325

The New Irish Constitution

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 con-
tinued, 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 revolu-
tion. 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

326

Government of Ireland in the igth Century

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 pro-
prietary.

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

The New Irish Constitution

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 l
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.

No. of

Amount of

Act.

Purchasers.

Advances.

I. — Irish Church Act, 1869 -

6,057

L
1,674,841

II. — Landlord and Tenant Act, 1870

877

5M.536

III. — Land Law (Ireland) Act, 1881

73i

240,801

IV. — Land Purchase Acts, 1885, 1887,

1888 and 1889 -

25.367

9,992.536

V. — Land Purchase Acts, 1891, 1896

46,806

13.633. !90

VI. — Irish Land Act, 1903 ...

117,010

41,293.564

VII. — Evicted Tenants Act, 1907

550

307.550

VIII. — Irish Land Act, 1909 -

1-444

422,562

Total

198,842

68,079,580 *

Mr. Gladstone once said to me that he was deeply
moved by the Parliamentary history of the Irish Land

1 I have done so in " Dublin Castle and the Irish People," see
p. 264, et seq.
* Mr. Commissioner Bailey.

328

Government of Ireland in the igth Century

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 success-
fully 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.

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 useless-
ness 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

329

The New Irish Constitution

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 Parlia-
mentarians 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 Gov-
ernment in Ireland a fraud. It is absurd to say that
a country enjoys representative institutions if its dele-
gates 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

330

Government of Ireland in the igth Century

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 In-
spectors of Police ; 62 of them are Catholics. There are
5,518 ordinary Justices of the Peace ; 1,805 °f them are
believed to be Catholics. There are 68 Privy Coun-
cillors ; 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

The New Irish Constitution

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 repre-
sentative 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 "

332

Government of Ireland in the iQth Century

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 igth, 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 pri vilege 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

333

The New Irish Constitution

in the House of Commons by 458 votes to 61. Nine-
teen 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 retire-
ment 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 institu-
tions, 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

334

Government of Ireland in the igth Century

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 aban-
don 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 incap-
able 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 passion-
ate determination to be no longer ruled on any terms by those to
whom they ascribe all their evils."1

Englishmen thoroughly appreciate the idea of nation-
ality 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

1 John Stuart Mill.
335

The New Irish Constitution

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.

336

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 intro-
duction. 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 atti-
tude 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 move-
ment. The leader of the party — Mr. John Redmond-
alluding to us in America, said : " With these men

337

The New Irish Constitution

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 con-
tempt of our race and friends everywhere for so abject
a surrender of the National Movement," and at Ennis-
corthy, 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 move-
ment. 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 con-
tortion 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

338

The History of Devolution

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. Devo-
lution may be confined to administration, as for instance
in the abortive Irish Councils Bill of 1907 ; or to legis-
lative 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 recon-
struction of the United Kingdom on federal lines can

Y 339

The New Irish Constitution

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 Salis-
bury, 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

340

The History of Devolution

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

341

The New Irish Constitution

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 legisla-
tion. 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 con-
nection with some such extension of the principles of local govern-
ment 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 imperfec-
tions of " Castle Government " and on the advantages
of devolution. Speaking in Belfast on November 5th,
1885, he defended the Irish Government against accu-
sations 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 govern-
ment. ..."

342

The History of Devolution

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 " devolu-
tion " 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.

343

The New Irish Constitution

Mr. Chamberlain continued, even during the Home
Rule controversy, faithful in his advocacy of devolution.
In a manifesto to his supporters, issued on July nth,
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 im-
portant 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 Im-
perial 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 com-
pounded, 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 increas-
ing 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 re-
sponsibility."

244

The History of Devolution

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 administra-
tion 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 sug-
gestion of devolution was an offspring of the Confer-
ence 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 con-
sequently upon the whole community. The land had

345

The New Irish Constitution

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 dis-
cussion ; but they were wrong — prejudice and passion
were put aside and the difficulties were overcome.

The Land Conference — an inspiration of the inarti-
culate 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 reason-
able 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 Ire-
land for some definite form of self-government be met."

The idea was a good one, but somewhat premature.
The Land Conference Committee having been ap-
pointed 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

346

The History of Devolution

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 ful-
filled its purpose. The Committee was about to dis-
solve, 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 resolu-
tions 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 pur-
suance 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 in-
dustrial 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 ot
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 detri-
ment of much more important concerns. In particular, we consider

347

The New Irish Constitution

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 allo-
cated 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 educa-
tion 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 better-
ment 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 devolu-
tion of administrative functions and reform of Private
Bill procedure.

348

The History of Devolution

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 hoe refer-
ence 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 pre-
pared 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

349

The New Irish Constitution

secure the appointment of a Commission, and to instruct this or
some other Committee to prepare a detailed report for its considera-
tion, with a view to placing the same in evidence before the Com-
mission. ..."

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.1
No ministerial or official comment was made on our
first programme published on August 3ist, 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

1 A debate took place in the House of Lords on the subject
on February lyth, 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.)

35°

The History of Devolution

Lord-Lieutenant, the Earl of Dudley, was also cogni-
sant of the movement. The second programme was
published on September 26th of that year, and on the
following da}7 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 multi-
plication of legislative bodies within the United King-
dom," and declared that such of our " aspirations "
as were " unimpeachable " were " prejudiced and not
enhanced when they are confused with any plan, how-
ever 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, pub-
lished in the spring of 1906, with Sir Edward Carson,
Lord Dudley after relinquishing his office stated :

" (i) 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 devolu-
tion 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 con-
sider 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 adminis-
tration came into power in 1906 and found expression

351

The New Irish Constitution

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 manage-
ment 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 him-
self, 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. Red-
mond, having accepted the Councils Bill in the House
of Commons, moved its rejection at the National Con-
vention 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

352

The History of Devolution

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 con-
sidered 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

353

The New Irish Constitution

modern expression. Devolution is an elastic though
not a vague term. As I have already said, it is incom-
patible with repeal of the Union. It predicates a
union of some sort — connection with a superior dele-
gating 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 denned my position in 1907. I then declared it
was :

"... my ambition to see : —

" (i) 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

354

The History of Devolution

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. Glad-
stone 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 obstruc-
tion in the House of Commons, others have been actu-
ated by a desire to relieve congestion and to restore
dignity and efficiency to the Commons House of Parlia-
ment. 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 pre-
liminary to, or accompaniment of, political reform, has

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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 satis-
factorily 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 con-
temporaneous 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 impa-
tience on the part of the Irish people, vagueness in the

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The History of Devolution

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 develop-
ment of this policy, that Devolutionists in going for-
ward 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 con-
science the sentiment of that speech was right."

357

PART III
CONTEMPORARY VIEWS

XIV.— IRISH NATIONALISM AND LIBERAL
PRINCIPLE

BY PROFESSOR L. T. HOBHOUSE

ALL through the nineteenth century the cause of sub-
ject 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 under-
stood 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 subj ect peoples. Here it seemed
was an oppressed nationality at the British Liberal's

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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 know-
ledge 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,

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Irish Nationalism and Liberal Principle

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 com-
parison with the past, prosperous. But Ireland is
still Nationalist. The result is to leave the main argu-
ments 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 repre-
sented on a democratic franchise in the governing
assembly of the whole, what has the principle of liberty

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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 patriot-
isms 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, Liberal-
ism 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 nationali-
ties, 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 incor-
porates 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

364

Irish Nationalism and Liberal Principle

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 representa-
tives 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 pros-
perity, 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 opposi-
tion 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

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The New Irish Constitution

liberal in its original intentions, is driven into " excep-
tional " legislation. Constitutional rights are cur-
tailed. 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 appear-
ances 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. Reaction-
ary 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 priori 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

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Irish Nationalism and Liberal Principle

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 im-
posing 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 in-
substantial 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

367

The New Irish Constitution

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 senti-
ment. 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

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Irish Nationalism and Liberal Principle

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 Ascen-
dency 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 treat-
ment, 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

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The New Irish Constitution

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 sub-
stantive proposal seriously intended, it will constitute
a new fact. Belfast will then be, indeed, claiming recog-
nition 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 responsi-
bility. 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

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Irish Nationalism and Liberal Principle

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 grudg-
ing and unadmitted co-operation, of the opposition.
But Belfast is not bound to content herself with these
general probabilities. She has only to formulate intel-
ligible 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 man-
kind 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

2 A 37l

The New Irish Constitution

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 contri-
buted 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.

372

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 Parlia-
ment. This is the urgent necessity for relieving Im-
perial 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 un-
equal 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.

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The New Irish Constitution

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

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The State of Parliamentary Business

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 recom-
mended 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 cau-
tious 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

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The New Irish Constitution

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."1

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 expon-
ents 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

1 Mr. Barry O'Brien's " Life of Parnell." Vol. I., p. 93.

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The State of Parliamentary Business

of Irish claims. We have travelled far since those
days, but obstruction remains as one of the most for-
midable 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 loth, 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. Dis-
cussion 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

377

The New Irish Constitution

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 dis-
tressing 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

378

The State of Parliamentary Business

absence of the levity that marks the present proceed-
ings. 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 delib-
erative 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 experi-
ence, the members of the present Parliament compare
most favourably with their predecessors in any Parlia-
ment 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 exer-
cised, 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,

379

The New Irish Constitution

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,
e% 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 Com-
missioners 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, un-
businesslike, 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

380

The State of Parliamentary Business

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 pro-
duce 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 ex-
tending 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

The New Irish Constitution

pass the Liberal measures which it rejected, the pressure
of business in the House of Commons must have neces-
sitated the resort to autumn sittings in two or three of
the years under consideration. Now, it is a common-
place 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 con-
stituencies 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 con-
stituencies. 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 over-
hauling of the work of their departments. It is as-
tonishing 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. Camp-
bell-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

382

The State of Parliamentary Business

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 Parlia-
ment.

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 Parlia-
ment. A Select Committee of unusual authority dis-
cussed this matter in 1890. Among the members of
the Committee were Mr. Gladstone, Mr. Balfour, Mr.
Chamberlain, Mr. John Morley, Mr. Goschen, Sir Wil-
liam 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

383

The New Irish Constitution

opposition in the House of Commons, and the delibera-
tions of 1848, 1861, and 1869 came to nothing. The
Committee of 1890 set out with wholly different inten-
tions. 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 enthusi-
astic 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 cen-
tury 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

384

The State of Parliamentary Business

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

385

The New Irish Constitution

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 Legis-
lature 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 re-
fused 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 Im-
perial concern. By no other means than by maintain-
ing Imperial Parliament at the highest pitch of effici-
ency can we be assured of good government throughout
the empire. I do not myself shrink from any of the

386

The State of Parliamentary Business

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 unques-
tionably a condition precedent to the re-establishment
of our control over our own legislative machine.

2B 387

(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 concentra-
tion. 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. Ire-
land, when joined in a legislative union with Great
Britain, was in fact left in possession of separate Ad-
ministrative, Financial and Judicial institutions. With
the separate judicial system I am not further concerned,
but at a time when the grant of extended self-govern-
ment to Ireland is under consideration, I contend that
it is of great utility to observe how far Irish Administra-
tion 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

Tendency towards Legislative Disintegration

to the diversity of the institutions, to pass in the Parlia-
ment 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

389

The New Irish Constitution

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 uni-
formity in Anglo-Irish Finances which has been
developed during the nineteenth century is still quali-
fied by a certain differentiation. Separate depart-
ments 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 Parlia-
ment of the United Kingdom of Great Britain and
Ireland. But Union did not necessarily mean uni-
formity, 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

390

Tendency towards Legislative Disintegration

same as between the three countries. Scotland has
at present no important central department at Edin-
burgh other than its Local Government Board.

It was largely owing to the maintenance under the
Union of the separate administration in Ireland, com-
bined 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 im-
posed ; 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 circum-
stances 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 con-
siderably 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, con-
tinued 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

391

The New Irish Constitution

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 enumera-
tion. 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 uni-
formity, 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

392

Tendency towards Legislative Disintegration

countries, or, in a very few cases, only to the Channel
Islands or the Isle of Man.

PUBLIC GENERAL ACTS, 1891-1910.

1891-1900 -
1901-1910 -

Total ....

United
Kingdom.

State.

Total.

295
252

336
206

631

458

547

542

1,089

It will be noticed that there is a curious approxima-
tion 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 accord-
ing 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 treat-
ment in any measure of Home Rule all round, but that
I shall not specifically mention Wales in this paper,

393

The New Irish Constitution

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 Prin-
cipality, so far as it may be based on laws and ad-
ministration that are distinct from those of England,
is exceedingly weak. Education, however, is already
separately administered, separate Insurance Commis-
sioners have been appointed for Wales, and an im-
portant Welsh Intermediate Education Act was passed
in 1889, just before the period that is covered by the
following table.

"STATE" ACTS, 1891-1910.

1891-1900 -
1901-1910 -

Total

England.

Scotland.

Ireland.

Great
Britain.

England
and
Ireland.

Total.

140

74
37

72
57

17
M

9
30

324
195

218

129

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 Parlia-
ment. We should, then, seek for some form of delega-
tion 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

394

Tendency towards Legislative Disintegration

that the removal of the Irish business would relieve
matters appreciably, and it is probable, without count-
ing 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 Com-
mons 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 Parlia-
ment 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, trans-
fer, and devolution of property (including land) ; the
Church ; the poor ; local government, rural and urban ;
roads, railways, and canals ; and education.1 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 legisla-
tion 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

1 " Federation and Empire," p. 315. (H. Henry & Co., 1896.)

395

The New Irish Constitution

'IBIOT 1 vO N O •* "*•

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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 Agri-
culture, 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 Parlia-
mentary business is against it, " State " legislation
continues to hold the field over a wide and varied
range of legislative activity.

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 Work-
men'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

397

The New Irish Constitution

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 Adminis-
tration 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 re-
marks upon the different legislative headings as I have
discussed the matter in greater detail elsewhere ;l
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 Govern-
ments, 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

1 " Home Rule Problems," pp. 67-72. (King, 1911.)

398

Tendency towards Legislative Disintegration

suggest that the separate Irish laws, and, for that
matter, the separate English and Scottish laws, con-
stitute 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 applica-
tion 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

399

The New Irish Constitution

they must be continued. The separate laws are passed
because England, Scotland and Ireland have in many
respects distinct and different institutions. In Ire-
land, 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 Eng-
land and Scotland," said Lord Lothian, in 1887, in a
speech in the House of Lords upon the proposed en-
largement 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 affect-
ing the law of lunacy and parochial laws, and almost
every other department."1 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 Ire-
land 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
1 " Parliamentary Debates," Vol. CCCXVIII., p. 688.

400

Tendency towards Legislative Disintegration

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 Scot-
land 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 Govern-
ment 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 impos-
sible 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

401

The New Irish Constitution

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 dis-
charge of its manifold functions. It cannot do all that
it should do, and much of what it does do, it does with-
out proper discussion. As to the first of these short-
comings, I am glad to be able to quote from an article
in the Round Table * 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 legis-
lative 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 guillo-
tine closure is proposed, while the final inadequacy of
the House of Commons is implicit in the recent admis-
sion 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

1 A Quarterly Review of the politics of the British Empire,
which is entirely free from any partisan prepossessions.

402

Tendency towards Legislative Disintegration

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

2 C 403

The New Irish Constitution

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 con-
sequences. Supposing he sits for an English con-
stituency, 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 irre-
sponsible, 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 estab-
lishment 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 rela-
tion 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

404

Tendency towards Legislative Disintegration

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, arrange-
ments 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, Scot-
land, 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.

405

The New Irish Constitution

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 Scot-
land 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 repre-
sentatives 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 com-
position ; 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 representa-
tives. Where Scotland does suffer is in their inability,

406

Tendency towards Legislative Disintegration

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 repre-
sentatives, 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 Eng-
land 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 Scot-
land are only rarely governed in opposition to the wishes

407

The New Irish Constitution

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 ex-
presses 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 ex-
tent, Englishmen, are also liable to have their wishes
on purely domestic affairs over-ridden by the repre-
sentatives 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

408

Tendency towards Legislative Disintegration

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 legis-
lator 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 govern-
ment 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 con-
stituency 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 candi-
date 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

409

The New Irish Constitution

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 repre-
sentative 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 develop-
ments, ordered in many respects separately for Eng-
land, 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 govern-
ment, and it is only by the sub-division of the respon-
sibilities 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,

410

Tendency towards Legislative Disintegration

though they, of course, serve to strengthen the argu-
ment ; 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.

(in) 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 Eng-
land, 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 federa-
tions. 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 similar-
ity, 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

412

Colonial Forms of Home Rule

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 neces-
sity 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 develop-
ment 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 Ire-
land would have the same positions and powers as
Canada, Australia and South Africa, and would main-
tain 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

413

The New Irish Constitution

framing a constitution, intended to be the commence-
ment 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 conse-
quently 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 affect-
ing 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

414

Colonial Forms of Home Rule

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 ex-
clusion 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 pre-
cedent, 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-goverment
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 Gov-
ernments 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

415

The New Irish Constitution

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 legis-
lature 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 pro-
vincial, local or municipal purposes.

Local works and undertakings, excepting : —

" (a) Lines of steam or other ships, railways, canals, tele-
graphs, 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

416

Colonial Forms of Home Rule

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 immigra-
tion, 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
denned 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, tele-
graphic, 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 ;

417

The New Irish Constitution

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 Common-
wealth.

" 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 Com-
monwealth to the laws, the Public Acts and records, and the judicial
proceedings of every State.

418

Colonial Forms of Home Rule

" 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 legis-
latures 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 Constitu-
tions 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 tend-
encies 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 Admini-
strator, 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.

2 D 419

The New Irish Constitution

Taking the Canadian Constitution as the most work-
able model, let us consider in the light of that instru-
ment what powers it would be reasonable to hand over
to an Irish Legislature. There are two ways of pro-
ceeding 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 pre-
cedent 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 govern-
ment 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

420

Colonial Forms of Home Rule

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-govern-
ing 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, pay-
ing a fixed contingent to the British Treasury. The
second method would be to allow the Irish Parlia-
ment 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.

421

The New Irish Constitution

In considering what subjects would naturally be
withdrawn from the jurisdiction of the future Irish
Legislature, as of other subsequent British local legisla-
tures, it will be well to see which of these exclusions
are common to the Canadian and Australian Con-
stitutions. These are : trade and commerce, indirect
taxation, borrowing money, postal, telegraphic, and
telephonic services, naval and military defence, light-
houses, 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 naviga-
tion and shipping, savings banks, the criminal law
and penitentiaries. On the other hand the subjects
reserved for the Central Parliament in Australia, com-
prise, 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

422

Colonial Forms of Home Rule

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 manufac-
turing, and night work by women in industrial occupa-
tions. 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 reason-
able, 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 legisla-
tion 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

423

The New Irish Constitution

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 dis-
allow the Act in the first instance, but, if the general
interest permits such a course, to give the local govern-
ment 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 pre-
vent 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 pro-
vinces. 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 Common-
wealth Parliament giving the High Court jurisdiction
in matters arising under the Constitution or involving

424

Colonial Forms of Home Rule

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 Govern-
ment 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 Legis-
latures, 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

425

The New Irish Constitution

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 states-
man once said to the writer, the counterbalancing ad-
vantages 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 perma-
nently 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 re-
versing 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.

426

XVI.— CONTEMPORARY IRELAND AND THE
RELIGIOUS QUESTION

(i) A CATHOLIC VIEW

BY MONSIGNOR O'RlORDAN

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

427

The New Irish Constitution

thinks to be erroneous or wrong. Now, every principle
which a man holds is a law to him. He may be mis-
taken ; 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 chess-
board. 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 every-
one 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 super-
natural. He must be so, or he lets the ground go from

428

A Catholic View

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 con-
flicting 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 tolera-
tion 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

429

The New Irish Constitution

to remain a member of the Catholic Church out of
which only Romish intolerance would drive him.

Everyone then, whatever be his religious, philosophi-
cal, 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 opin-
ions, 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

43°

A Catholic View

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 ex-
pediency, 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 sus-
pected ; 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 Protes-
tant sects who had to fly from the intolerance of more
powerful Protestant sects in New England States

431

The New Irish Constitution

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 tolera-
tion. 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 Protest-
ant 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

432

A Catholic View

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 wit-
nesses 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 Confedera-
tion 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
i8th 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 ex-
communicate 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

433

The New Irish Constitution

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 com-
pensation, 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 sur-
prising to candid men that a Parliament -;p constituted, and called

434

A Catholic View

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 neces-
sary, 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 " Thorn'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 neigh-
bours ! 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.

2 E 435

The New Irish Constitution

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 popula-
tion 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 exclu-
-siveness 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 exclu-
siveness ; when their neighbours were privileged by
religious exclusiveness it was called civil rights.

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 ven-
geance." 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

436

A Catholic View

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 Sur-
veyor 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 Parlia-
ment, 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

437

The New Irish Constitution

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 popula-
tion 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.

438

A Catholic View

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, Port-
rush, and some other towns of that county, there is
not i 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
i : 9 of the population, they are in the proportion of
i : 4 in the Borough Council. In Kinsale, Co. Cork, where
the Protestants bear an extremely small proportion to
the Catholics, they are as i : 4 in the Borough Council.

Nine years ago, through much trouble and corres-
pondence, 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 i8th 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.

i /4 a year for attending to nobody.

17
2

5
4

£5
£6

£10

£12

£15
£20

£25
£30

439

The New Irish Constitution

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 I 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 i 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

440

A Catholic View

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.

Ill
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 hav^
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

441

The New Irish Constitution

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 deter-
mine 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

442

A Catholic View

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 neces-
sary 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 predica-
ment 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

443

The New Irish Constitution

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

A Catholic View

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 Catho-
lics. 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

445

The New Irish Constitution

the judges ; so that Mr. Campbell's interpretation im-
plies 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 ecclesi-
astics 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 other-
wise, 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."

446

A Catholic View

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 con-
firmation 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 sug-
gests 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 multi-
farious, 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 ex-
communicato 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

447

The New Irish Constitution

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 offensive-
ness 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 constitu-
tions 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.

448

(ii) SOME PROTESTANT VIEWS

(i) A CHURCH OF IRELAND VIEW
BY CANON COURTENAY MOORE, M.A.

IT is under a deep sense of both privilege and responsi-
bility that I contribute this article — of privilege be-
cause 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, 1 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

The New Irish Constitution

language, and of Irish Archaeology, 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 Tuarn,
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 ques-
tion. " 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."

450

A Church of Ireland View

" 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 in-
destructible 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 abso-
lutely 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

2 F 4Si

The New Irish Constitution

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. Testi-
mony 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 in-
deed 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 know-
ledge, 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.

452

A Church of Ireland View

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 truth-
fully, 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 deputa-
tion 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

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The New Irish Constitution

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 cap-
tain 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. Glad-
stone's Church Act, on the whole, was in time bene-
ficial. 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 Repre-
sentative Church Body of the Church funds was an
object lesson in favour of Home Rule.

454

A Church of Ireland View

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 sup-
pose, 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

455

The New Irish Constitution

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 " Sacri-
legious " 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 some-
thing 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.

456

A Church of Ireland View

Here perhaps I may with advantage introduce some
remarks made by me in Cork City on March 2ist 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 ac-
quaintance of the Bishop in 1893, when I was making a little anti-
quarian 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 May-
nooth ; 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-controver-
sial 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 neces-
sary 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

457

The New Irish Constitution

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 broad-
cast 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, person-
ally speaking, I never received anything but kindness and con-
sideration. 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 sen-
tences :

" 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 brother-
hood. I have heard all manner of men speaking of your action on
that occasion in the highest terms of praise."

A Church of Ireland View

" 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 Kil-
worth, 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 confiden-
tial 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 dis-
tricts where the vast numerical predominance of the
former Church might, as some suppose and suggest, pro-
voke 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

459

The New Irish Constitution

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 legisla-
tion in the direction of Home Rule is a further con-
cession to national sentiment and likely to prove a
further development of and outlet for national know-
ledge 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 country-
men 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

460

A Church of Ireland View

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 la fos 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."

461

(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. Every-
thing 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 dis-
memberment 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 " separa-
tion," 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

462

A Presbyterian View

has not the power of raising an Army or a Navy could
hardly venture on rebellion. Ireland is largely an agri-
cultural 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 un-
thinkable 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 ham-
string 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

463

The New Irish Constitution

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 strict-
ness 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 funda-
mental 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 " dry ting 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 Protest-
ant parents, and its adherents in all the branches of

464

A Presbyterian View

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

465

The New Irish Constitution

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 genera-
tions 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

466

A Presbyterian View

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 paeans 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, quot-
ing 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

2 G 467

The New Irish Constitution

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 dis-
establishment 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 Pro-
testantism, 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

A Presbyterian View

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. Per-
secution 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 martjT for conscience sake has never
been heard of in Erin. On April nth 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 con-
viction. I have no fear for true Protestantism in the

469

The New Irish Constitution

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 pros-
perity 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 cor-
porate improvements is enormous, and it frightens
social reformers from attempting to get things which
stand in the way of public good set right. No state-
ment was ever further from the truth than that which
is made so often, that the Imperial Parliament is ready

470

A Presbyterian View

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 ? '

471

(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 govern-
ment ? they will impatiently cry ; why then compli-
cate an already difficult subject by importing con-
siderations 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 govern-
ment 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.

472

A Nonconformist View

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. Liberal-
ism is essentially " vulgar " in Ireland ; and National-
ism 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 un-
privileged 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,

473

The New Irish Constitution

have always been found on the popular side ; but, on
the whole, heredity prevails, tradition rules, and con-
vention, 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'etre 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 Christ-
ianity ; 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 char-
acteristics (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 govern-
ment 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 rele-
gated 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

474

A Nonconformist View

solicitude, " the interests of His Majesty's Protestant
subjects were his greatest care, and must first be
provided f or " (17 & 18 Charles II.) ; and the " mere
Irish " were sacrificed for the purpose. The " settle-
ments " 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 un-
necessarily 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 in-
tolerant spirit that displays itself in threats of armed
resista ce, or in the " Ulster " of Rudyard Kipling
with its :

" The faith in which we stand,

The La\vs 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."

475

The New Irish Constitution

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 men-
tion 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 agree-
ment on the principles of government impossible be-
tween 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 ood of
their common country. Presbyterians have le : :t 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

476

A Nonconformist View

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 Nation-
ality, when English, Welsh and Scots are " nations "
is a curious relic of the old attitude towards1 " 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 aspira-
tions (pace Ulster) . They have a history more ancient
than that of Saxon England, and a continuous Christ-
ianity as devoutly held for seventeen centuries as in
any country of Europe ; they have marked character-
istics, 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 privi-
leges of a nation.

In any attempt to reach the truth as to the justice
and expediency of granting Home Rule to Ireland, it

i See Kipling's " Ulster."

477

The New Irish Constitution

is absolutely futile to waste time in answering the stock
arguments of party platforms, special pleading to sup-
port 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 re-
fused the natural rights of freemen.

" What in the world do you want ? " is the cry indig-
nantly 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 con-
stitutional 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 develop-
ment is responsibility. The father or ruler who

4:8

A Nonconformist View

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 vindi-
cated before the world their fitness to fight its battles,
or command its armies ; as captains of industry they
have led in every land, arid 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 con-
tribution 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 "

479

The New Irish Constitution

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 re-
ligious 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 Govern-
ment 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 gth.
It was not Irish in any true sense. The platforms
crowded with sixty members of Parliament represent-
ing 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 land-
owner, addressed by eminent counsel who have trans-
ferred 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

48o

A Nonconformist View

show of party political force ; but nothing can hide or
minimize the fact that it is all avowedly an effort to sup-
port and intensify the claim of about half the popula-
tion of Ulster, and one-fourth of the population of Ire-
land, 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 pre-
ponderating 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 Epis-
copalians 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, pro-
bably needs such a reform in representation, and cannot

The New Irish Constitution

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 ?

482

A Nonconformist View

Timid Ulstermen deplore " the loss of their birth-
right 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 com-
mercial travellers from Ulster, who enter every town
in Ireland, whether their wares are scouted and them-
selves 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 bom men in the land they tilled. Many crimes

2 H 483

The New Irish Constitution

have been committed, but who can distribute the
blame ? and any fair historian will recollect the exas-
peration under which they were committed, the failure
of every attempt at redress, the findings of Royal
Commissions disregarded and the promises of poli-
ticians 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 com-
mitted 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 unhis-
torical 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 Govern-
ment. If the Irish Roman Catholics desired to perse-
cute 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 cam-
paign 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

484

A Nonconformist View

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 pros-
perity that self-government is not needed or even
wanted !

A daring orator in Belfast proclaimed " the inde-
pendent 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 govern-
ment, 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

485

The New Irish Constitution

without Coercion and Crime Acts."1 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 pro-
gress ought to appeal to every Protestant's warmest
sentiments, let us examine briefly the alleged dangers
arising from the power of the Roman Catholic priest-
hood 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
i " Irish Nationality " (Home University Library.)

486

A Nonconformist View

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, tem-
perance, 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 Westminister, the
sooner they are disillusioned the better. But if they are
satisfied to secure essential interests, such as thorough-
ness 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

487

The Kew Irish Constitution

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 repu-
tation 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

A Nonconformist View

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 marriage?, 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 up-
held 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 brother-
hood 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,

The New Irish Constitution

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.

49°

000617002

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