Chapter 7

It is no part of the object of this article to enter into the details of the American government, its advantages or defects. This much, however, is clear--the American Constitution has lasted nearly one hundred years, and shows no signs of decay or disruption. It has stood the strain of the greatest war of modern times, and has emerged from the conflict stronger than before. Even during the war the antagonism of the rebels was directed, not against the Union, but against the efforts of the Northern States to suppress slavery, or, in other words, to destroy, as the Southern States believed (not unjustly as the event showed), their property in slaves, and consequently the only means they had of making their estates profitable. One conclusion, then, we may draw, that a nation in which the Imperial powers and the State powers are vested in different authorities is no less compact and powerful, as respects all national capacities, than a nation in which both classes of powers are wielded by the same functionaries; and one lesson more may be learnt from the American War of Secession--namely, that in a nation having such a division of powers, any conflict between the two classes results in the Supreme or Imperial powers prevailing over the Local governmental powers, and not in the latter invading or driving a wedge into the Supreme powers. In fact, the tendency in case of a struggle is towards an undue centralization of the nation by reason of the encroachment by the Supreme authority, rather than towards a weakening of the national unity by separatist action on the part of the constituent members of the nation.

In comparing the Constitution of the United States with the Constitution of the British Empire, we find an apparent resemblance in form as respects the Anglo-Saxon colonies, but underlying the surface a total difference of principle. The United States is an aggregate of homogeneous and contiguous States which, in order to weld themselves into a nation, gave up a portion of their rights to a central authority, reserving to themselves all powers of government which they did not expressly relinquish.

The British Empire is an aggregate of many communities under one common head, and is thus described by Mr. Burke in 1774, in language which may seem to have been somewhat too enthusiastic at the time when it was spoken, but at the present day does not more than do justice to an Empire which comprises one-sixth of the habitable globe in extent and population:--

"I look, I say, on the Imperial rights of Great Britain, and the privileges which the colonies ought to enjoy under those rights, to be just the most reconcilable things in the world. The Parliament of Great Britain sits at the head of her extensive Empire in two capacities: one as the local legislature of this island, providing for all things at home immediately and by no other instrument than the executive power; the other, and I think her nobler capacity, is what I call her Imperial character, in which, as from the throne of heaven, she superintends all the several Legislatures, and guides and controls them all without annihilating any. As all these provincial Legislatures are only co-ordinate with each other, they ought all to be subordinate to her, else they can neither preserve mutual peace, nor hope for mutual justice, nor effectually afford mutual assistance."[9]

The means by which the possessions of Great Britain were acquired have been as various as the possessions themselves. The European, Asiatic, and African possessions became ours by conquest and cession; the American by conquest, treaty, and settlement; the Australasian by settlement, and by that dubious system of settlement known by the name of annexation. Now, what is the link which fastens each of these possessions to the mother country? Surely it is the inherent and indestructible right of the British Crown to exercise Imperial powers--in other words, the supremacy of the Queen and the British Parliament? What, again, is the common bond of union between these vast colonial possessions, differing in laws, in religion, and in the character of the population? The same answer must be given: the joint and several tie, so to speak, is the same--namely, the sovereignty of Great Britain. It is true that the mode in which the materials composing the British Empire have been cemented together is exactly the reverse of the manner of the construction of the American Union. In the case of the Union, independent States voluntarily relinquished a portion of their sovereignty to secure national unity, and entrusted the guardianship of that unity to a representative body chosen by themselves. Such a union was based on contract, and could only be constructed by communities which claimed to be independent. Far different have been the circumstances under which England has developed itself into the British Empire. England began as a sovereign power, having its sovereignty vested at first solely in the Sovereign, but gradually in the Sovereign and Parliament. This sovereignty neither the Crown nor the Parliament can, jointly or severally, get rid of, for it is of the very essence of a sovereign power that it cannot, by Act of Parliament or otherwise, bind its successors.[10] This principle of supremacy has never been lost sight of by the British Parliament. Their right to alter or suspend a colonial Constitution has never been disputed. Contract never enters into the question. The dominant authority delegates to its subordinate communities as much or as little power as it deems advantageous for each body, and, if it sees fit, resumes a portion or the whole of the delegated authority. The last point of difference to be noted between the American Constitution and the Constitution of the British Empire is the fact that as Minerva sprang from the brain of Jupiter fully equipped, so the American Constitution came forth from the hands of its framers complete and, what is of more importance, practically in material matters unchangeable except by the agony of an internecine war or some overwhelming passions. The British Empire, on the other hand, is, as respects its component members, ever in progress and flux. An Anglo-Saxon colony, no less than a human being, has its infancy under the maternal care of a governor, its boyhood subject to the government of a representative council and an Executive appointed by the Crown, its manhood under Home Rule and responsible government, in which the Executive are bound to vacate their offices whenever they are out-voted in the Legislature. Changes are ever taking place in the growth, so to speak, of the several British possessions, but what is the result? Nobody ever dreams of these changes injuring the Imperial tie or the supremacy of the British Parliament, that alone towers above all, unchangeable and unimpaired; and, what is most notable, loyalty and devotion to the Crown--that is to say, the Imperial tie--so far from being weakened by the transition of a colony from a state of dependence in local affairs to the higher degree of a self-governing colony, are, on the contrary, strengthened almost in direct proportion as the central interference with local affairs is diminished. On this point an unimpeachable witness--Mr. Merivale--says: "What, then, are the lessons to be learnt from a consideration of the American Constitution and of our colonial system? Surely these: that Imperial unity and Imperial supremacy are in no degree dependent on the control exercised by the central power on its dependent members." Facts, however, are more conclusive than any arguments; and we have only to look back to the state some forty years ago of Canada, New Zealand, and the various colonies of Australia, and compare that state with their condition to-day, to come to the conclusion that the fullest power of local government is perfectly consistent with the unity of the Empire and the supremacy of the British Parliament. Under the old colonial Constitutions the Executive of those colonies was under the control of the Crown; and Mr. Merivale says "that the political existence consisted of a series of quarrels and reconciliations between the two opposing authorities--the colonial legislative body and the Executive nominated by the Crown." England resolved to give up the control of the Executive, and to grant complete responsible government--that is to say, the Governor of each colony was instructed that his Executive Council (or Ministry, as we should call it) must resign whenever they were out-voted by the legislative body. The effect of this change, this relaxing, as would be supposed, of the Imperial tie, was magical, and is thus described by Mr. Merivale:[11]

"The magnitude of that change--the extraordinary rapidity of its beneficial effects--it is scarcely possible to exaggerate. None but those who have traced it can realize the sudden spring made by a young community under its first release from the old tie of subjection, moderate as that tie really was. The cessation, as if by magic, of the old irritant sores between colony and mother country is the first result. Not only are they at concord, but they seem to leave hardly any traces in the public mind behind them. Confidence and affection towards the home, still fondly so termed by the colonist as well as the emigrant, seem to supersede at once distrust and hostility. Loyalty, which was before the badge of a class suspected by the rest of the community, became the common watchword of all, and, with some extravagance in the sentiment, there arises no small share of its nobleness and devotion. Communities, which but a few years ago would have wrangled over the smallest item of public expenditure to which they were invited by the Executive to contribute, have vied with each other in their subscriptions to purposes of British interests in response to calls of humanity, or munificence for objects but indistinctly heard of at the distance of half the world."

The Dominion of Canada has been so much talked about that it may be well to give a summary of its Constitution, though, in so far as regards its relations to the mother country, it differs in no material respect from any other self-governing colony. The Dominion consists of seven provinces, each of which has a Legislature of its own, but is at the same time subject to the Legislature of the Dominion, in the same manner as each State in the American Union has a Legislature of its own, and is at the same time subject to the control of Congress. The distinguishing feature between the system of the American States and the associated colonies of the Dominion of Canada is this--that all Imperial powers, everything that constitutes a people a nation as respects foreigners, are reserved to the mother country. The division, then, of the Dominion and its provinces consists only in a division of Local powers. It is impossible to mark accurately the line between Dominion and Provincial powers, but, speaking generally, Dominion powers relate to such matters--for example, the regulation of trade and commerce, postal service, currency, and so forth--as require to be dealt with on a uniform principle throughout the whole area of a country; while the Provincial powers relate to provincial and municipal institutions, provincial licensing, and other subjects restricted to the limits of the province. As a general rule, the Legislature of the Dominion and the Legislature of each province have respectively exclusive jurisdiction within the limits of the subjects entrusted to them; but, as respects agriculture and immigration, the Dominion Parliament have power to overrule any Act of the provincial Legislatures, and, as respects property and civil rights in Ontario, Nova Scotia, and New Brunswick, the Dominion Parliament may legislate with a view to uniformity, but their legislation is not valid unless it is accepted by the Legislature of each province to which it applies.

The executive authority in the Dominion Government, as in all the self-governing colonies, is carried on by the Governor in the name of the Queen, but with the advice of a Council: that is to say, as to all Imperial matters, he is under the control of the mother country; as to all local matters, he acts on the advice of his local Council. The result of the whole is that the citizenship of an inhabitant of the Dominion of Canada is a triple tie. Suppose him to reside in the province of Quebec. First, he is a citizen of that province, and bound to obey all the laws which it is within the competence of the provincial Legislature to pass. Next, he is a citizen of the Dominion of Canada, and acknowledges its jurisdiction in all matters outside the legitimate sphere of the province. Lastly, and above all, he is a subject of her Majesty. He is to all intents and purposes, as respects the vast company of nations, an Englishman, entitled to all the privileges as he is to all the glory of the mother country so far as such privileges can be enjoyed and glory participated in without actual residence in England. One startling point of likeness in events and unlikeness in consequences is to be found in the history of Ireland and Canada. In 1798 Ireland rebelled. Protestant and Catholic were arrayed in arms against each other. The rebellion was quenched in blood, and measures of repression have been in force, with slight intervals of suspension, ever since, with this result--that the Ireland of 1886 is scarcely less disloyal and discontented than the Ireland of 1798. In 1837 and 1838 Canada rebelled. Protestants and Catholics, differing in nationality as well as in religion, were arrayed in arms against each other. The rebellion was quelled with the least possible violence, a free Constitution was given, and the Canada of 1886 is the largest, most loyal, and most contented colony in her Majesty's dominions.

Assuming, then, thus much to be proved by the Constitution of the United States that national unity of the closest description is consistent with complete Home Rule in the component members of the nation, and by the history of Canada and the British colonial empire that an Imperial tie is sufficient to bind together for centuries dependencies differing in situation, in nationality, in religion, in laws, in everything that distinguishes peoples one from another, and further and more particularly that emancipation of the Anglo-Saxon colonies from control in their internal affairs strengthens instead of weakening Imperial unity, let us turn to Ireland and inquire whether there is anything in the circumstances under which Home Rule was proposed to be granted to Ireland, or in the measures intended to establish that Home Rule, fairly leading to the inference that disruption of the Empire or an impairment of Imperial powers would probably be a consequence of passing the Irish Government Bill and the Irish Land Bill. And, first, as to the circumstances which would seem to recommend the Irish Home Rule Bill.

Ireland, from the very commencement of her connection with England, has chafed under the restraints which that connection imposed. The closer the apparent union between the two countries the greater the real disunion. The Act of 1800, _in words and in law_, effected not a union merely, but a consolidation of the two countries. The effect of those words and that law was to give rise to a restless discontent, which has constantly found expression in efforts to procure the repeal of the Act of Union and the reestablishment of a National Parliament in Dublin. How futile have been the efforts of the British Parliament to diminish by concession or repress by coercion Irish aspirations or Irish discontent it is unnecessary to discuss here. All men admit the facts, however different the conclusions which they draw from those facts. What Burke said of America on moving in 1775 his resolution on conciliation with the colonies was true in 1885 with respect to Ireland:--

"The fact is undoubted, that under former Parliaments the state of America [read for America, Ireland] has been kept in continual agitation. Everything administered as remedy to the public complaint, if it did not produce, was at least followed by an heightening of the distemper, until, by a variety of experiments, that important country has been brought into her present situation--a situation which I will not miscall, which I dare not name, which I scarcely know how to comprehend in the terms of any description."[12]

At length, after the election of 1885, Mr. Gladstone and the majority of his followers came to the conclusion that an opportunity had presented itself for providing Ireland with a Constitution conferring on the people of that country the largest measure of self-government consistent with the absolute supremacy of the Crown and the Imperial Parliament and the entire unity of the Empire. A scheme was proposed which was accepted in principle by the representatives of the National party in Ireland as a fair and sufficient adjustment of the Imperial claims of Great Britain and the Local claims of Ireland. The scheme was shortly this. A Legislative Assembly was proposed to be established in Ireland with power to make all laws necessary for the good government of Ireland--in other words, invested with the same powers of local self-government as a colonial Assembly. The Irish Assembly was in one respect unlike a colonial Legislature. It consisted of one House only, but this House was divided into two orders, each of which, in case of differences on any important legislative matter, voted separately. This form was adopted in order to minimize the chances of collision between the two orders, by making it imperative on each order to hear the arguments of the other before proceeding to a division, thus throwing on the dissentient order the full responsibility of its dissent, with a complete knowledge of the consequences likely to ensue therefrom. The clause conferring on the Irish Legislature full powers of local self-government was immediately followed by a provision excepting, by enumeration, from any interference on the part of the Irish Legislature, all Imperial powers, and declaring any enactment void which infringed on that provision. This exception (as is well known) is not found in colonial Constitutional Acts. In them the restriction of the words of the grant to Local powers only has been held sufficient to safeguard the supremacy of the British Parliament and the unity of the Empire. The reason for making a difference in the case of the Home Rule Bill was political, not legal. Separation was declared by the enemies of the Bill to be the real intention of its supporters, and destruction of the unity of the Empire to be its certain consequence. It seemed well that Ireland, by her representatives, should accept as a satisfactory charter of Irish liberty a document which contained an express submission to Imperial power and a direct acknowledgment of Imperial unity. Similarly with respect to the supremacy of the British Parliament. In the colonial Constitutions all reference to this supremacy is omitted as being too clear to require notice. In the case of the Irish Home Rule Bill instructions were given to preserve in express words the supremacy of the British Parliament in order to pledge Ireland to an express admission of that supremacy by the same vote which accepted Local powers. It is true that the wording by the draftsman of the sentence reserving the supremacy of Parliament was justly found fault with as inaccurate and doubtful, but that defect would have been cured by an amendment in Committee; and, even if there had not been any such clause in the Bill, it is clear, from what has been said above, that the Imperial Legislature could not, if it would, renounce its supremacy or abdicate its sovereign powers. The executive government in Ireland was continued in the Queen, to be carried on by the Lord Lieutenant on behalf of her Majesty, with the aid of such officers and Council as to her Majesty might from time to time seem fit. Her Majesty was also a constituent part of the Legislature, with power to delegate to the Lord Lieutenant the prerogative of assenting to or dissenting from Bills, and of summoning, proroguing, and dissolving Parliament. Under these provisions the Lord Lieutenant resembled the Governor of a colony with responsible government. He was invested with a double authority--first, Imperial; secondly, Local. As an Imperial officer, he was bound to veto any Bill injuriously affecting Imperial interests or inconsistent with general Imperial policy; as a Local officer, it was his duty to act in all local matters according to the advice of his Council, whose tenure of office depended on their being in harmony with, and supported by, a majority of the Legislative Assembly. Questions relating to the constitutionality of any particular law were not left altogether to the decision of the Governor. If a Bill containing a provision infringing Imperial rights passed the Legislature, its validity might be decided in the first instance by the ordinary courts of law, but the ultimate appeal lay to the Judicial Committee of the Privy Council, and, with a view to secure absolute impartiality in the Committee, it was provided that Ireland should be represented on that body by persons who either were or had been Irish judges. Not the least important provision of the Bill, as respects the maintenance of Imperial interests, was the continuance of Imperial taxation. The Customs and Excise duties were directed to be levied, as heretofore, in pursuance of the enactments of the Imperial Parliament, and were excepted from the control of the Irish Legislature, which had full power, with that exception, to impose such taxes in Ireland as they might think expedient. The Bill further provided that neither the Imperial taxes of Excise nor any Local taxes that might be imposed by the Irish Legislature should be paid into the Irish Exchequer. An Imperial officer, called the Receiver-General, was appointed, into whose hands the produce of every tax, both Imperial and Local, was required to be paid, and it was the duty of the Receiver-General to take care that all claims of the English Exchequer, including especially the contribution payable by Ireland for Imperial purposes, were satisfied before a farthing found its way into the Irish Exchequer for Irish purposes. The Receiver-General was provided with an Imperial Court to enforce his rights of Imperial taxation, and adequate means for enforcing all Imperial powers by Imperial civil officers. The Bill did not provide for the representation of Ireland in the Imperial Parliament on all Imperial questions, including questions relating to Imperial taxation, but it is fully understood that in any Bill which might hereafter be brought forward relating to Home Rule those defects would be remedied.

An examination, then, of the Home Rule Bill, that "child of revolution and parent of separation," appears to lead irresistibly to two conclusions. First, that Imperial rights and Imperial powers, representation for Imperial purposes, Imperial taxation--in short, every link that binds a subordinate member of an Empire to its supreme head--have been maintained unimpaired and unchanged. Secondly, that, in granting Home Rule to discontented Ireland, that form of responsible government has been adopted which, as Mr. Merivale declares--and his declaration subsequent events have more than verified--when conferred on the discontented colonies, changed restless aspirations for separation into quiet loyalty.