Handbook of Home Rule (1887) by W. E. Gladstone et al.

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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 _a 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.

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 _regime_, 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.

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