The New Irish Constitution: An Exposition and Some Arguments

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Ireland -- Politics and government Home rule -- Ireland

In: History - British·History - European·History - Modern (1750+)

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A word of explanation seems necessary as to the origin of this work, its design, and the obligations under which it has laid the Editor. The Committee of the Eighty Club requested me some few months ago to undertake the preparation of a book dealing with the Irish question. They did me the honour of leaving entirely to my discretion both the design of the work and the choice of the contributors. Of books about Ireland, particularly of those which wear the livery of political parties, there are enough and to spare. Most of them are retrospective. I am not insensible to the value of a historical argument—as the design of the second part of this book sufficiently attests—but “few indeed,” as Burke has remarked, “are the partisans of departed tyranny,” and it seemed to me more profitable to pay some attention to the present and the future. The restoration to Ireland of her Parliament is an event which not only appeals to the imagination of the historian, but also stimulates the speculation of the jurist, and invites the assistance of the administrator. I have, therefore, attempted in the earlier part of this book to secure a sober and dispassionate study of the new order of government by writers who can speak with the authority of a life’s vocation. Their names need no commendation from me.

The second part of the book may be regarded as supplementary to the first, in that it deals with constitutional history. When public men of such distinction as Mr. Balfour can speak of Irish patriotism, in so far as it used a Parliamentary vocabulary, as an exotic, and Irish nationality as a political afterthought, it seems not unimportant to show, as Mrs. J. R. Green and Professor Pollard have here shown, that the title-deeds of that nationality are not the forgeries of a political scriptorium, but are as authentic as anything an Englishman can boast. No one who has served any apprenticeship to Irish history needs to be reminded of the indomitable charm with which Irishmen have always taken captivity captive, and naturalised the alien and the oppressor. No argument for Irish nationality is more potent than this. One may, if one is so perverse, think Bolton pedantic, Molyneux curious, Swift rhetorical, and Grattan forensic, but there is no denying that these Anglo-Irish champions of Irish nationality spoke with a truly native passion. Nor is it a little remarkable that at the eleventh hour history should have repeated itself, and that the heart of the ruling caste should have throbbed, as Lord Dunraven has shown in his remarkable chapter, with a new impulse toward self-government. Grattan’s Parliament, as one may read in Mr. Gooch’s essay, was composed of men of much the same antecedents and prestige as those who are associated with Lord Dunraven in that significant movement of Irish Unionism which has to-day met Nationalism half-way. That Parliament is about to be restored to Ireland under conditions, which, as Lord Fitzmaurice shows, are, allowing for the difference in time and in the categories of political thought, substantially those which the Rockingham Ministry would, had they been free agents, have imposed in 1782. Their imposition would have precluded the union, and we should have been saved that sorry story, to be read in Mr. Barry O’Brien’s succinct pages, of concessions delayed until they had lost their grace, and promises redeemed when they had lost their virtue.

Much of these historical chapters is but melancholy reading. But it is for Englishmen to remember these things, as it will be, I hope and pray, for Irishmen to forget them.

The third part of the book comes nearer home. At a time when our fellow-subjects across the oceans are repudiating, as Irishmen have repudiated, the name of “colonists,” with all its suggestions of the dependent tenure of Roman law, and are claiming, as Irishmen long ago claimed, the status of a “dominion,” it does not lie with Englishmen, least of all of the Imperialist school, to challenge the claims of the Irishmen of to-day to nationality. Professor Hobhouse reminds us that where this stubborn non-conformity to the ruling order endures, it must be accepted as the touchstone of nationalism. But the Irish demands are reinforced by English exigencies, and, as three Liberal Members of Parliament remind us, the Imperial Legislature is already disintegrating domestically under the stress of its manifold burdens. Not for the first time is the path of justice thus discovered to be also the path of expediency.

In the later chapters of this book will be found a view of the present state of Ireland, from the pens of those best qualified to speak of it, the pens of men who have spent their lives in ministering to her people. I would commend to the attention of the reader those chapters, in which a great dignitary of the Roman Church, a distinguished scholar of the Church of Ireland, and two members of Nonconformist bodies, who stand high in their respective communions, pray for the deliverance of the social life of their country from the obsession of a busy and alien fanaticism.

Dea magna, dea Cybelle, dea domina Dindymi, Procul a mea tuus sit furor omnis, era, domo: Alios age incitatos, alios age rabidos.

It must be understood that the responsibility for each chapter is confined to the person who wrote it. We are all united in a common allegiance to the principles of Home Rule, but that allegiance is not incompatible with some diversity of view as to the form which it should take. It seems to me that the book gains, rather than loses, in value by this degree of latitude of opinion. It is, perhaps, hardly necessary to add that the order in which the chapters appear makes no pretence to anything so invidious as an order of merit—otherwise the first chapter would have been the last; it is designed simply with a view to a logical sequence.

I wish to thank Lord Haldane and Mr. Birrell for the enjoyment of certain privileges in the preparation of the book, without the concession of which its appearance at this moment would have been impossible. I have also to thank Lord Haldane for reading the proofs of my own chapter on the Government of Ireland Bill, and giving me the benefit of that profound learning which is always so generously placed at the service of the student who seeks its guidance. To my friends, Lord Fitzmaurice, Mrs. J. R. Green, and Mr. J. A. Spender, I am indebted for many kind offices of a diplomatic character. Throughout the conduct of my editorial task I have had the wise counsel and unfailing support of Mr. Bourchier Hawksley, the Chairman of the Home Rule Committee of the Eighty Club, and to him I desire to express my grateful acknowledgments.

J. H. MORGAN. The Temple. May, 1912.

I.—The Constitution: A Commentary. BY PROFESSOR J. H. MORGAN

“Home Rule is at bottom Federalism,” we are told(1) by the most distinguished jurist among its opponents. It is urged against it that Federal Governments are almost invariably weak Governments, and that, in so far as they are strong, they are as “symmetrical” as the new constitution is unsymmetrical. Cornewall Lewis once thought it necessary to write a book on the Use and Abuse of Political Terms, and there is a great danger in the present controversy of our being enslaved by the poverty of our political vocabulary. The term “Federalism” is put to such new and alien uses as to darken counsel and confuse thought. That Federal Executives are usually weak, that in the dual allegiance of a Federal system men often prefer the State authority which is near to the Federal authority which is remote, that the respective limits of Federal and State legislation are defined with difficulty and observed with reluctance, that conflict of laws is more often the rule than the exception, that Federal constitutions are rigid rather than flexible, and, in a word, that progress is sacrificed to stability: all these things are true, and all these things are irrelevant. The Government of Ireland Bill is not, and cannot be, the corner-stone of a Federal system for the United Kingdom, although its duplication in the case of Scotland and of England would not be impossible, should it appear desirable. We may, for want of a better term, call it the foundation of a system of Devolution, but we must not call it Federalism.

Putting on one side for the moment the question whether Home Rule is Federalism or not, I am inclined to enter a protest against all these attempts to fit the Bill into the categories of the jurist. It is very doubtful whether any two constitutions in the world, even federal constitutions, can be brought under one species. Two of the most successful “federal” constitutions present the gravest anomalies to the theorist. The Canadian Constitution, according to Professor Dicey, betrays a logical fallacy in the very words of its preamble;(2) and German jurists have wrangled no less inconclusively than incessantly about the legal character of the Empire and as to where its sovereignty resides;(3) yet in neither case has the practical operation of these constitutions been much the worse for the legal solecisms which they present. Indeed, it would not be too much to say with Aristotle that the “mixed” and not the “pure” type of government is the most successful, and that when Federalism is, as in the United States, at its purest, it is also at its weakest. The constitution of Imperial Germany ought, on this kind of reasoning, to be a flagrant perversion, and yet it has persisted in enduring for some forty-one years, and the prestige of its principal organ, the Bundesrath, although violating all Mr. Balfour’s principles as to “equality” in its constitution, is, according to the doyen of the constitutional lawyers of Germany, increasing every day.(4) The argument that “Federalism” is incompatible with the preponderance of the “predominant partner,” and that no “federal” union is possible in these islands owing to the superior position occupied by England, would, even if it were relevant, be easily refuted by the example presented by the hegemony of Prussia.

The same objection may be urged against the contention that the grant of self-government, whether to Ireland alone or to the rest of the United Kingdom, is both reactionary and unprecedented. The progress of all civilised communities, we are told, is towards political integration, not away from it. Devolution, it is said, is gratuitous in the case of a “United” Kingdom whose very union represents an ideal imperfectly achieved by the less fortunate countries which have had to be content with something less complete in the form of Federalism. Nations or Colonies mutually independent federate as a step towards union; it is “unprecedented” to reverse the process and qualify union by looser ties of cohesion. Now this attempt “to construct a normal programme for all portions of mankind”(5) cannot be sustained. If it could, it would avail as a conclusive argument against the grant of self-government to our Colonies whose claims to legislative independence grow with their growth and strengthen with their strength.(6) But it is not even true of Federal Unions. Anyone who takes the trouble to study the history of judicial interpretation of the American Constitution will find that there is a constant ebb and flow in the current of “unionism.” The intention of the framers of the 14th Amendment to create a United States citizenship has been largely neutralized by the decisions of the Supreme Court, which have inclined strongly in the direction of the legislative autonomy of the States.(7) Nor is this all. We are told that Federal Constitutions are “round and perfect and self-contained,”(8)—that they are characterized by “equality” of all the parts—and that, like the work of the divine law-giver of early communities, they are finished the moment they are begun.(9) But these confident inductions cannot be sustained. The history of the constitution of the United States and of Imperial Germany tells another story—a story of ancillary communities and dependencies in various stages of political apprenticeship. If we look for the American Constitution where all such constitutions must really be sought, that is to say not in the original text, but in the commentary of the courts, we shall find a truly remarkable tendency of late years to emphasize this heterogeneity, inequality and incompleteness.(10)

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