Chapter 13

Those have misunderstood me who suppose that I draw from the success of the anti-rent movement in this State between 1839 and 1846 an inference against "all attempts to enforce an unpopular law." Such was not by any means my object. What I sought to show by the history of this movement was that there was nothing peculiar or inexplicable in the hostility to rent-paying in Ireland. The rights of the New York landlords were as good in law and morals as the rights of the Irish landlords, and their mode of asserting them far superior. Moreover, those who resisted them were not men of a different race, religion, or nationality, and had, as Mr. Dicey says, "none of the excuses that can be urged in extenuation of half-starved tenants." Their mode of setting the law at defiance was exactly similar to that adopted by the Irish, and it was persisted in for a period of ten years, or until they had secured a substantial victory. The history of the anti-rent agitation in New York also illustrates strikingly, as it seems to me, the perspicacity of a remark made, in substance, long ago by Mr. Disraeli, which, in my eyes at least, threw a great deal of light on the Irish problem, namely, that Ireland was suffering from suppressed revolution. As Mr. Dicey says, "The crises called revolutions are the ultimate and desperate cures for the fundamental disorganization of society. The issue of a revolutionary struggle shows what is the true sovereign power in the revolutionized state. So strong is the interest of mankind, at least in any European country, in favour of some sort of settled rule, that civil disturbance will, if left to itself, in general end in the supremacy of some power which by securing the safety at last gains the attachment of the people. The Reign of Terror begets the Empire; even wars of religion at last produce peace, albeit peace may be nothing better than the iron uniformity of despotism. Could Ireland have been left for any lengthened period to herself, some form of rule adapted to the needs of the country would in all probability have been established. Whether Protestants or Catholics would have been the predominant element in the State; whether the landlords would have held their own, or whether the English system of tenure would long ago have made way for one more in conformity with native traditions; whether hostile classes and races would at last have established some _modus vivendi_ favourable to individual freedom, or whether despotism under some of its various forms would have been sanctioned by the acquiescence of its subjects, are matters of uncertain speculation. A conclusion which, though speculative, is far less uncertain, is that Ireland, if left absolutely to herself, would have arrived, like every other country, at some lasting settlement of her difficulties" (p. 87). That is to say, that in Ireland as in New York the attempt to enforce unpopular land laws would have been abandoned, had local self-government existed. For "revolution" is, after all, only a fine name for the failure or refusal of the rulers of a country to persist in executing laws which the bulk of the population find obnoxious. When the popular hostility to the law is strong enough to make its execution impossible, as it was in New York in the rent affair, it is accepted as the respectable solution of a very troublesome problem. When, as in Ireland, it is strong enough to produce turbulence and disorder, but not strong enough to tire out and overcome the authorities, it simply ruins the political manners of the people. If the Irish landlords had had from the beginning to face the tenants single-handed and either hold them down by superior physical force, or come to terms with them as the New York landlords had to do, conditions of peace and good will would have assuredly been discovered long ago. The land question, in other words, would have been adjusted in accordance with "Irish ideas," that is, in some way satisfactory to the tenants. The very memory of the conflict would probably by this time have died out, and the two classes would be living in harmony on the common soil. If in New York, on the other hand, the Van Rensselaers and Livingstons had been able to secure the aid of martial law and of the Federal troops in asserting their claims, and in preventing local opinion having any influence whatever on the settlement of the dispute, there can be no doubt that a large portion of this State would to-day be as poor and as savage, and apparently as little fitted for the serious business of government, as the greater part of Ireland is.

There is, in truth, no reason to doubt that the idea of property in land, thoroughly accepted though it be in the United States, is nevertheless held under the same limitations as in the rest of the world. No matter what the law may say in any country, in no country is the right of the landed proprietor in his acres as absolute as his right in his movables. A man may own as much land as he can purchase, and may assert his ownership in its most absolute form against one, two, or three occupants, but the minute he began to assert it against a large number of occupants, that is, to act as if his rights were such that he had only to buy a whole state or a whole island in order to be able to evict the entire population, he would find in America, as he finds in Ireland, that he cannot have the same title to land as to personal property. He would, for instance, if he tried to oust the people of a whole district or of a village from their homes on any plea of possession, or of a contract, find that he was going too far, and that no matter what the judges might say, or the sheriff might try to do for him, his legal position was worth very little to him. Consequently a large landlord in America, if he were lucky enough to get tenants at all, would be very chary indeed about quarrelling with more than one of them at a time. The tenants would no more submit to wholesale ejectment than the farmers in Missouri would submit some years ago to a tax levy on their property to pay county bonds given in aid of a railroad. The goods of some of them were seized, but a large body of them attended the sale armed with rifles, having previously issued a notice that the place would be very "unhealthy" for outside bidders.

The bearing of this condition of American opinion on the Irish question will be plainer if I remind English readers that the Irish in the United States numbered in 1880 nearly 2,000,000, and that the number of persons of Irish parentage is probably between 4,000,000 and 5,000,000. In short there are, as well as one can judge, more Irish nationalists in the United States than in Ireland. The Irish-Americans are to-day the only large and prosperous Irish community in the world. The children of the Irish born in the United States or brought there in their infancy are just as Irish in their politics as those who have grown up at home. Patrick Ford, for instance, the editor of the _Irish World_, who is such a shape of dread to some Englishmen, came to America in childhood, and has no personal knowledge nor recollection of Irish wrongs. Of the part this large Irish community plays in stimulating agitation--both agrarian and political--at home I need not speak; Englishmen are very familiar with it, and are very indignant over it. The Irish-Americans not only send over a great deal of American money to their friends at home, but they send over American ideas, and foremost among them American hostility to large landowners, and American belief in Home Rule. Now, to me, one of the most curious things in the English state of mind about the Irish problem is the apparent expectation that this Irish-American interference is transient, and will probably soon die out. It is quite true, as Englishmen are constantly told, that "the best Americans," that is, the literary people and the commercial magnates, whom travelling Englishmen see on the Atlantic coast, dislike the Irish anti-English agitation. But it is also true that the disapproval of the "best Americans" is not of the smallest practical consequence, particularly as it is largely due to complete indifference to, and ignorance of, the whole subject. There are probably not a dozen of them who would venture to express their disapproval publicly. The mass of the population, particularly in the West, sympathize, though half laughingly, with the efforts of the transplanted Irish to "twist the British lion's tail," and all the politicians either sympathize with them, or pretend to do so. I am not now expressing any opinion as to whether this state of things is good or bad. What I wish to point out is that this Irish-American influence on Irish affairs is very powerful, and may, for all practical purposes, be considered permanent, and must be taken into account as a constant element in the Irish problem. I will indeed venture on the assertion that it is the appearance of the Irish-Americans on the scene which has given the Irish question its present seriousness. The attempts of the Irish at physical resistance to English authority have been steadily diminishing in gravity during the present century--witness the descent from the rebellion of 1798 to Smith O'Brien's rebellion and the Fenian rising of 1867. On the other hand the power of the Irish to act as a disturbing agency in English politics has greatly increased, and the reason is that the stream of Irish discontent is fed by thousands of rills from the United States. Every emigrant's letter, every Irish-American newspaper, every returned emigrant with money in his pocket and a good coat on his back, helps to swell it, and there is not the slightest sign, that I can see, of its drying up.

Where Mr. Dicey is most formidable to the Home Rulers, as it seems to me, is in his chapter on "Home Rule as Federalism," which is the form in which the Irish ask for it. He attacks this in two ways. One is by maintaining that the necessary conditions for a federal union between Great Britain and Ireland do not exist. This disposes at one blow of all the experience derived from the working of the foreign federations, on which the advocates of Home Rule have relied a good deal. The other is what I may call predictions that the federation even if set up would not work. Either the state of facts on which all other federations have been built does not exist in Ireland, or if it now exists, will not, owing to the peculiarities of Irish character, continue to exist. In other words, the federation will either fail at the outset, or fail in the long run. No one can admire more than I do the force and ingenuity and wealth of illustration with which Mr. Dicey supports this thesis. But unfortunately the arguments by which he assails Irish federalism might be, or might have been, used against all federations whatever. They might have been used, as I shall try to show, against the most successful of them all, the Government of the United States. I was reminded, while reading Mr. Dicey's account of the impossibility of an Anglo-Irish federation, of Mr. Madison's rehearsal in the _Federalist_ (No. 38) of the objections made to the Federal Constitution after the Convention had submitted it to the States. These objections covered every feature in it but one; and that, the mode of electing the President, curiously enough, is the only one which can be said to have utterly failed. A more impressive example of the danger of _à priori_ attacks on any political arrangement, history does not contain. Mr. Madison says: "This one tells me that the proposed Constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large state exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small state is equally loud against the dangerous inequality in the House of Representatives. From one quarter we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion the cry is that the Congress will be but the shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a state that does not import or export discerns insuperable objections against the power of direct taxation. The patriotic adversary in a state of great exports and imports is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the constitution a direct and irresistible tendency to monarchy. That is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them. Whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against the opposite propensities. With another class of adversaries to the Constitution, the language is, that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favour of liberty. Whilst this objection circulates in vague and general expressions, there are not a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarcely any two are exactly agreed on the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this power in the executive alone, is the vicious part of the organization. To another the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With a third the admission of the President into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. We concur fully, reply others, in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error; our principal dislike to the organization arises from the extensive powers already lodged in that department. Even among the zealous patrons of a council of state, the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted."

Mr. Madison's challenge to the opponents of the American Constitution to agree on some plan of their own, and his humorous suggestion that if the American people had to wait for some such agreement to be reached they would go for a long time without a government, are curiously applicable to the opponents of Irish Home Rule. They are very fertile in reasons for thinking that neither the Gladstone plan nor any other plan can succeed, but no two of them, so far as I know, have yet hit upon any other mode of pacifying Ireland, except the use of force for a certain period to maintain order, and oddly enough, even when they agree on this remedy, they are apt to disagree about the length of time during which it should be tried.

Mr. Dicey, in conceding the success of the American Constitution, seems to me unmindful, if I may use the expression, of the judgments he would probably have passed on it had it been submitted to him at the outset were he in the frame of mind to which a prolonged study of the Irish problem has now brought him. The Supreme Court, for instance, which he now recognizes as an essential feature of the Federal Constitution, and the absence of which in the Gladstonian arrangement he treats as a fatal defect, would have undoubtedly appeared to him a preposterous contrivance. It would have seemed to him impossible that a legislature like Congress, with the traditions of parliamentary omnipotence still strong in the minds of the members, would ever submit to have its acts nullified by a board composed of half a dozen elderly lawyers. Nor would he have treated as any more reasonable the expectation that the State tribunals, which had existed in each colony from its foundation, and had earned the respect and confidence of the people, would quietly submit to have their jurisdiction curtailed, their decisions overruled, causes torn from their calendar, and prisoners taken out of their custody by new courts of semi-foreign origin, which the State neither paid nor controlled. He would, too, very probably have been most incredulous about the prospect of the growth of loyalty on the part of New-Yorkers and Massachusetts men to a new-fangled government, which was to make itself only slightly felt in their daily lives, and was to sit a fortnight away in an improvised village in the midst of a Virginian forest.

He would, too, have ridiculed the notion that State legislatures would refrain, in obedience to the Constitution, from passing any law which local sentiment strongly favoured or local convenience plainly demanded, such as a law impairing the obligation of obnoxious contracts, or levying duties on imports or exports. The possibility that the State militia could ever be got to obey federal officers, or form an efficient part of a federal army, he would have scouted. On the feebleness of the front which federation would present to a foreign enemy he would have dwelt with emphasis, and would have pointed with confidence to the probability that in the event of a war some of the states would make terms with him or secretly favour his designs. National allegiance and local allegiance would divide and perplex the feelings of loyal citizens. Unless the national sentiment predominated--and it could not predominate without having had time to grow--the federation would go to pieces at any of those crises when the interests or wishes of any of the states conflicted with the interests or wishes of the Union. That the national sentiment could grow at all rapidly, considering the maturity of the communities which composed the Union and the differences of origin, creed, and manners which separated them, no calm observer of human nature would believe for one moment.

The American Constitution is flecked throughout with those flaws which a lawyer delights to discover and point out, and which the framers of a federal contract can only excuse by maintaining that they are inevitable. It is true that Mr. Dicey does not even now acknowledge the success of the American Constitution to be complete. He points out that if the "example either of America or of Switzerland is to teach us anything worth knowing, the history of these countries must be read as a whole. It will then be seen that the two most successful confederacies in the world have been kept together only by the decisive triumph through force of arms of the central power over real or alleged State rights" (p. 192).

It is odd that such objectors do not see that the decisive triumph of the central power in the late civil war in America was, in reality, a striking proof of the success of the federation. The armies which General Grant commanded, and the enormous resources in money and devotion from which he was able to draw, were the product of the Federal Union and of nothing else. One of the greatest arguments its founders used in its favour was that if once established it would supply overwhelming force for the suppression of any attempt to break it up. They did not aim at setting up a government which neither foreign malice nor domestic treason, would ever assail, for they knew that this was something beyond the reach of human endeavour. They tried to set up one which, if attacked either from within or from without, would make a successful resistance, and we now know that they accomplished their object. Somewhat the same answer may be made to the objection, which is supposed to have fatal applicability to the case of Ireland, that among the "special faults of federalism" is that it does not provide "sufficient protection of the legal rights of unpopular minorities," and that "the moral of it all is that the [American] Federal Government is not able to protect the rights of individuals against strong local sentiment" (p. 194 of Mr. Dicey's book). He says, moreover, if I understand the argument rightly, that it was bound to protect free speech in the States because "there is not and never was a word in the Articles of the Constitution forbidding American citizens to criticize the institutions of the State." It would seem from this as if Mr. Dicey were under the impression that in America the citizen of a State has a right to do in his State whatever he is not forbidden to do by the Federal Constitution, and in doing it has a right to federal protection. But the Federal Government can only do what the Constitution expressly authorizes it to do, and the Constitution does not authorize it to protect a citizen in criticizing the institutions of his own State. This arrangement, too, is just as good federalism as the committal of free speech to federal guardianship would have been. The goodness or badness of the federal system is in no way involved in the matter.