Chapter 14

The question to what extent a minority shall rely on the federation for protection, and to what extent on its own State, is a matter settled by the contract which has created the federation. The settlement of this is, in fact, the great object of a Constitution. Until it is settled somehow, either by writing or by understanding, there is, and can be, no federation. If I, as a citizen of the State of New York, could call on the United States Government to protect me under all circumstances and against all wrongs, it would show that I was not living under a federation at all, but under a centralized republic. The reason why I have to rely on the United States for protection against some things and not against others is that it was so stipulated when the State of New York entered the Union. There is nothing in the nature of the federal system to prevent the United States Government from protecting my freedom of speech. Nor is there anything in the federal system which forbids its protecting me against the establishment of a State Church, which, as a matter of fact, it does not do. Nor is there anything in the federal system compelling the Government to protect me against the establishment of an order of nobility, which, as a matter of fact, it does do. The reason why it does not do one of these things and does the other is simply and solely that it was so stipulated, after much discussion, in the contract. Most thinking men are to-day of opinion that the United States ought to have exclusive jurisdiction of marriage, so that the law of marriage might be uniform in all parts of the Union. The reason why they do not possess such jurisdiction is not that Congress is not fully competent to pass such a law or the federal courts to execute it, but that no such jurisdiction is conferred by the Constitution. In fact it seems to me just as reasonable to cite the ease of divorce in various States of the Union as a defect in the federal system, as to cite the oppression of local minorities in matters not placed under federal authority by the organic law.

If one may judge from a great deal of writing on American matters which one sees in English journals and the demands for federal interference in America in State affairs which they constantly make, the greatest difficulty Irish Home Rule has to contend with is the difficulty which men bred in a united monarchy and under an omnipotent Parliament experience in grasping what I may call the federal idea. The influence of association on their minds is so strong that they can hardly conceive of a central power, worthy of the name of a government, standing by and witnessing disorders or failures of justice in any place within its borders, without stepping in to set matters right, no matter what the Constitution may say. They remind me often of an old verger in Westminster Abbey during the American civil war who told me that "he always knew a government without a head couldn't last." Permanence and peace were in his mind inseparably linked with kingship. That even Mr. Dicey has not been able to escape this influence appears frequently in his discussions of federalism. He, of course, thoroughly understands the federal system as a jurist, but when he comes to discuss it as a politician he has evidently some difficulty in seeing how a government with a power to enforce _any_ commands can be restrained by contract from enforcing _all_ commands which may seem to be expedient or salutary. Consequently the cool way in which the Federal Government here looks on at local disorders seems to him a sign, not of the fidelity of the President and Congress to the federal pact, but of some inherent weakness in the federal system.

The true way to judge the federal system, however, either in the United States or elsewhere, is by observing the manner in which it has performed the duties assigned to it by the Constitution. If the Government at Washington performs these faithfully, its failure to prevent lawlessness in New York or the oppression of minorities in Connecticut is of no more consequence than its failure to put down brigandage in Macedonia. Possibly it would have been better to saddle it with greater responsibility for local peace; but the fact is that the framers of the Constitution decided not to do so. They did not mean to set up a government which would see that every man living under it got his due. They could not have got the States to accept such a government. They meant to set up a government which should represent the nation worthily in all its relations with foreigners, which should carry on war effectively, protect life and property on the high seas, furnish a proper currency, put down all resistance to its lawful authority, and secure each State against domestic violence on the demand of its Legislature.

There is no common form for federal contracts, and no rules describing what such a contract must contain in order that the Government may be federal and not unitarian. There is no hard and fast line which must, under the federal system, divide the jurisdiction of the central Government from the jurisdiction of each State Government. The way in which the power is divided between the two must necessarily depend on the traditions, manners, aims, and needs of the people of the various localities. The federal system is not a system manufactured on a regulation model, which can be sent over the world like iron huts or steam launches, in detached pieces, to be put together when the scene of operation is reached. Therefore I am unable to see the force of the argument that, as the conditions under which all existing federations were established differ in some respects from those under which the proposed federal union between England and Ireland would have to be established, therefore the success of these confederations, such as it is, gives them no value as precedents. A system which might have worked very well for the New England States would not have worked well for a combination which included also the middle and southern States. And the framers of the American Constitution were not so simple-minded as to inquire, either before beginning their labours or before ending them--as Mr. Dicey would apparently have the English and Irish do--whether this or that style of constitution was "the correct thing" in federalism. Assuming that the people desired to form a nation as regarded the world outside, they addressed themselves to the task of discovering how much power the various States were willing to surrender for this purpose. That was ascertained, as far as it could be ascertained, by assembling their delegates in convention, and discussing the wishes and fears and suggestions of the different localities in a friendly and conciliatory spirit. They had no precedents to guide them. There had not existed a federal government, either in ancient or modern times, whose working afforded an example by which the imagination or the understanding of the American people was likely to be affected in the smallest degree. They, therefore, had to strike out an entirely new path for themselves, and they ended by producing an absolutely new kind of federation, which was half Unitarian, that is, in some respects a union of states, and in others a centralized government; and it was provided for a Territory one end of which was more than a month's distance from the other.

It is not in its details, therefore, but in the manner of its construction, that the American Constitution furnishes anything in the way of guidance or suggestion to those who are now engaged in trying to find a _modus vivendi_ between England and Ireland. The same thing may be said of the Swiss Constitution and of the Austro-Hungarian Constitution. Both of them contain many anomalies--that is, things that are not set down in the books as among the essentials of federalism. But both are adapted to the special wants of the people who live under them, and were framed in reference to those wants.

The Austro-Hungarian Delegations are another exception to the rule. These Delegations undoubtedly control the ministry of the Empire, or at all events do in practice displace it by their votes. It is made formally responsible to them by the Constitution. All that Mr. Dicey can say to this is that "the real responsibility of the Ministry to the Delegations admits of a good deal of doubt," and that, at all events, it is not like the responsibility of Mr. Gladstone or Lord Salisbury to the British Parliament. This may be true, but the more mysterious or peculiar it is the better it illustrates the danger of speaking of any particular piece of machinery or of any particular division of power as an essential feature of a federal constitution.

We are told by the critics of the Gladstonian scheme that federalism is not "a plan for disuniting the parts of a united state." But whether it is or not once more depends on circumstances. Federalism, like the British or French Constitution, is an arrangement intended to satisfy the people who set it up by gratifying some desire or removing some cause of discontent. If that discontent be due to unity, federalism disunites; if it be due to disunion, federalism unites. In the case of the Austro-Hungarian Empire, for instance, it clearly is a "plan for disuniting the parts of a united state." Austria and Hungary were united in the sense in which the opponents of Home Rule use the word for many years before 1867, but the union did not work, that is, did not produce moral as well as legal unity. A constitution was therefore invented which disunites the two countries for the purposes of domestic legislation, but leaves them united for the purposes of foreign relations. This may be a queer arrangement. Although it has worked well enough thus far, it may not continue to work well, but it does work well now. It has succeeded in converting Hungary from a discontented and rebellious province and a source of great weakness to Austria into a loyal and satisfied portion of the Empire. In other words, it has accomplished its purpose. It was not intended to furnish a symmetrical piece of federalism. It was intended to conciliate the Hungarian people. When therefore the professional federal architects make their tour of inspection and point out to the Home Ruler what flagrant departures from the correct federal model the Austro-Hungarian Constitution contains, how improbable it is that so enormous a structure can endure, and how, after all, the Hungarians have not got rid of the Emperor, who commands the army and represents the brute force of the old _régime_, I do not think he need feel greatly concerned. This may be all true, and yet the Austro-Hungarian federalism is a valuable thing. It has proved that the federal remedy is good for more than one disease, that it can cure both too much unity and too little. The truth is that there are only two essentials of a federal government. One is an agreement between the various communities who are to live under it as to the manner in which the power is to be divided between the general and local governments; the other is an honest desire on the part of all concerned to make it succeed. As a general rule, whatever the parties agree on and desire to make work is likely to work, just as a Unitarian government is sure to succeed if the people who live under it determine that it shall succeed. If a federal plan be settled in the only right way, by amicable and mutually respectful discussion between representative men, all the more serious obstacles are certain to be revealed and removed. Those which are not brought to light by such discussions are pretty sure to be comparatively trifling, and to disappear before the general success of arrangement. But by a "mutually respectful discussion" I mean discussion in which good faith and intelligence of all concerned are acknowledged on both sides.

In what I have said by way of criticism of a book which may be taken as a particularly full exposition of the legal criticism that may be levelled at Mr. Gladstone's scheme, I have not touched on the arguments against Home Rule which Mr. Dicey draws from the amount of disturbance it would cause in English political habits and arrangements. I freely admit the weight of these arguments. The task of any English statesman who gives Home Rule to Ireland in the only way in which it can be given--with the assent of the British people--will be a very arduous one. But this portion of Mr. Dicey's book, producing, as it does, the distinctively English objections to Home rule, is to me much the most instructive, because it shows the difficulty there would be in creating the state of mind in England about any federal relation to Ireland which would be necessary to make it succeed. I do not think it an exaggeration to say that two-thirds of the English objections to Home Rule as federalism are unconscious expressions of distrust of Irish sincerity or intelligence thrown into the form of prophecy, and prophets, as we all know, cannot be refuted. For instance, "the changes necessitated by federalism would all tend to weaken the power of Great Britain" (Dicey, p. 173). The question of the command of the army could not be arranged; the Irish army could not be depended on by the Crown (p. 174); the central Government would be feeble against foreign aggression, and the Irish Parliament would give aid to a foreign enemy (pp. 176-7). Federalism would aggravate or increase instead of diminishing the actual Irish disloyalty to the Crown (pp. 179-80); the Irish expectations of material prosperity from Home Rule are baseless or grossly exaggerated (p. 182); the probability is, it would produce increased poverty and hardship; there would be frequent quarrels between the two countries over questions of nullification, secession, and federal taxation (p. 184); neither side would acquiesce in the decision either of the Privy Council or of any other tribunal on these questions; Home Rulers would be the first to resist these decisions (p. 185). Irish federation "would soon generate a demand that the whole British Empire should be turned into a Confederacy" (p. 188). Finally, as "the one prediction which may be made with absolute confidence," "federalism would not generate the goodwill between England and Ireland which, could it be produced, would be an adequate compensation even for the evils and inconveniences of a federal system" (p. 191).

Now I do not myself believe these things, but what else can any advocate of Home Rule say in answer to them? They are in their very nature the utterances of a prophet--an able, acute, and fair-minded prophet, I grant, but still a prophet--and before a prophet the wisest man has to be silent, or content himself by answering in prophecy also. What makes the sceptical frame of mind in which Mr. Dicey approaches the Home Rule question so important is not simply that it probably represents that of a very large body of educated Englishmen, but that it is one in which a federal system cannot be produced. Faith, hope, and charity are political as well as social virtues. The minute you leave the region of pure despotism and try any form of government in which the citizen has in the smallest degree to co-operate in the execution of the laws, you have need of these virtues at every step. As soon as you give up the attempt to rule men by drumhead justice, you have to begin to trust in some degree to their intelligence, to their love of order, to their self-respect, and to their desire for material prosperity, and the nearer you get to what is called free government the larger this trust has to be. It has to be very large indeed in order to carry on such a government as that of Great Britain or of the United States; it has to be larger still in order to set up and administer a federal government. In such a government the worst that can happen is very patent. The opportunities which the best-drawn federal constitution offers for outbreaks of what Americans call "pure cussedness"--that is, for the indulgence of anarchical tendencies and impulses--is greater than in any other. Therefore, to set it up, or even to discuss it with any profit, your faith in the particular variety of human nature, which is to live under it, has to be great. No communities can live under it together and make it work which do not respect each other. I say respect, I do not say love, each other. The machine can be made to go a good while without love, and if it goes well it will bring love before long; but mutual respect is necessary from the first day. This is why Mr. Dicey's book is discouraging. The arguments which he addressed to Englishmen would not, I think, be formidable but for the mood in which he finds Englishmen, and that this mood makes against Home Rule there can be little doubt.

I am often asked by Americans why the English do not call an Anglo-Irish convention in the American fashion, and discuss the Irish question with the Irish, find out exactly what they will take to be quiet, and settle with them in a rational way. I generally answer that, in the first place, a convention is a constitution-making agency with which the English public is totally unfamiliar, and that, in the second place, Englishmen's temper is too imperial, or rather imperious, to make the idea of discussion on equal terms with the Irish at all acceptable. They are, in fact, so far from any such arrangement that--preposterous and even funny as it seems to the American mind--to say that an English statesman is carrying on any sort of communication with the representatives of the Irish people is to bring against him, in English eyes, a very damaging accusation. When a man like Mr. Matthew Arnold writes to the _Times_ to contend that Englishmen should find out what the Irish want solely for the purpose of not letting them have it, and a journal like the _Spectator_ maintains that the sole excuse for extending the suffrage in Ireland, as it has lately been extended in England, was that the Irish as a minority would not be able to make any effective use of it; and when another political philosopher writes a long and very solemn letter in which, while conceding that in governing Ireland a sympathetic regard for Irish feelings and interests should be displayed, he mentions, as one of the leading facts of the situation, that in "the Irish character there is a grievous lack of independence, of self-respect, of courage, and above all of truthfulness"--when men of this kind talk in this way, it is easy to see that the mental and moral conditions necessary to the successful formation of a federal union are still far off. No federal government, and no government requiring loyalty and fidelity for its successful working, was ever set up by, or even discussed between, two parties, one of which thought the other so unreasonable that it should be carefully denied everything it asked for and as unfit for any sort of political co-operation as mendacity, cowardice, and slavishness could make it.

Finally let me say that there is nothing in Mr. Dicey's book which has surprised me more, considering with what singular intellectual integrity he attacks every point, than his failure to make any mention or to take any account of the large part which time and experience must necessarily play in bringing to perfection any political arrangement which is made to order, if I may use the expression, no matter how carefully it may be drafted. Hume says on this point with great wisdom, "To balance the large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able by the mere dint of reason or reflection to effect it. The judgments of many must unite in the work, experience must guide their labour, time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trial and experiments."[25]

This has proved true of the American and Swiss federations; it will probably prove true of the Austro-Hungarian federation and of any that may be set up by Great Britian [Transcriber: sic.] and her colonies. It will prove still more true of any attempt that may be made at federation between Great Britain and Ireland. No corrections which could be made in the Gladstonian or any other constitution would make it work exactly on the lines laid down by its framers. Even if it were revised in accordance with Mr. Dicey's criticism, it would probably be found, as in the case of the American Constitution, that few of the dangers which were most feared for it had beset it, and that some of the inconveniences which were most distinctly foreseen as likely to arise from it were among the things which had materially contributed to its success. History is full of the gentle ridicule which the course of events throws on statesmen and philosophers.

FOOTNOTES:

[Footnote 24: Printed in the earlier part of this volume.]

[Footnote 25: Essay on the Rise and Progress of the Arts and Sciences.]

THE "UNIONIST" CASE FOR HOME RULE.

BY R. BARRY O'BRIEN.

I am often asked, What are the best books to read on the Irish question? and I never fail to mention Mr. Lecky's _Leaders of Public Opinion in Ireland_ and the _History of England in the Eighteenth Century_; Mr. Goldwin Smith's _Irish History and Irish Character, Three English Statesmen, The Irish Question_, and Professor Dicey's admirable work, _England's Case against Home Rule_.

Indeed, the case for Home Rule, as stated in these books, is unanswerable; and it redounds to the credit of Mr. Lecky, Mr. Goldwin Smith, and Mr. Dicey that their narrative of facts should in no wise be prejudiced by their political opinions.

That their facts are upon one side and their opinions on the other is a minor matter. Their facts, I venture to assert, have made more Home Rulers than their opinions can unmake.

To put this assertion to the test I propose to quote some extracts from the works above mentioned. These extracts shall be full and fair. Nothing shall be left out that can in the slightest degree qualify any statement of fact in the context. Arguments will be omitted, for I wish to place facts mainly before my readers. From these facts they can draw their own conclusions. Neither shall I take up space with comments of my own. I shall call my witnesses and let them speak for themselves.

I.--MR. LECKY.

In the introduction to the new edition of the _Leaders of Public Opinion in Ireland_, published in 1871--seventy-one years after Mr. Pitt's Union, which was to make England and Ireland one nation--we find the following "contrast" between "national life" in the two countries:--