A Lawyer's Objections To Home Rule

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Title:     A Lawyer's Objections To Home Rule
Author: Edwin Lawrence Godkin [More Titles by Godkin]

Mr. Dicey in his Case against Home Rule does me the honour to refer to an article which I wrote a year ago on "American Home Rule,"[1] expressing in one place "disagreement in the general conclusion to which the article is intended to lead," and in another "inability to follow the inference" which he supposes me to draw "against all attempts to enforce an unpopular law." Now the object of that article, I may be permitted to explain, was twofold. I desired, in the first place, to combat the notion which, it seemed to me, if I might judge from a great many of the speeches and articles on the Irish question, was widely diffused even among thoughtful Englishmen that the manner in which the Irish have expressed their discontent--that is, through outrage and disorder--was indicative of incapacity for self-government, and even imposed upon the Englishmen the duty, in the interest of morality (I think it was the Spectator who took this view), and as a disciplinary measure, of refusing to such a people the privilege of managing their own affairs. I tried to show by several noted examples occurring in this country that prolonged displays of lawlessness, and violence, and even cruelty, such as the anti-rent movement in the State of New York, the Ku-Klux outrages in the South, and the persecution of Miss Prudence Crandall in Connecticut, were not inconsistent with the possession of marked political capacity. I suggested that it was hardly adult politics to take such things into consideration in passing on the expediency of conceding local self-government to a subject community. There was to me something almost childish in the arguments drawn from Irish lawlessness in the discussion of Home Rule, and in the moral importance attached by some Englishmen to the refusal to such wicked men as the Irish of the things they most desire. It is only in kindergartens, I said, that rulers are able to do equal and exact justice, and see that the naughty are brought to grief and the good made comfortable. Statesmen occupy themselves with the more serious business of curing discontent. They concern themselves but little, if at all, with the question whether it might not be manifested by less objectionable methods.

The Irish methods of manifesting it, I endeavoured to show, were not exceptional, and did not prove either inability to make laws or unwillingness to obey them. I illustrated this by examples drawn from the United States. I might, had I had more time and space, have made these examples still more numerous and striking. I might have given very good reasons for believing that, were Ireland a state in the American Union, there probably would not have been any rent paid in the island within the last fifty years, and that the armed resistance of the tenants would have had the open or secret sympathy of the great bulk of the American people. In truth, the importance of Irish crime as a political symptom is grossly exaggerated by English writers. I venture to assert that more murders unconnected with robbery are committed in the State of Kentucky in one year than in Ireland in ten, and the condition of some other Southern and Western States is nearly as bad. All good Americans lament this and are ashamed of it, but it never enters into the heads of even the most lugubrious American moralists that Kentucky or any other State should be disfranchised and remanded to the condition of a Territory, because the offences against the person committed in it are so numerous, and the punishment of them, owing to popular sympathy or apathy, so difficult.

There are a great many Englishmen who think that when they show that Grattan's Parliament was a venal and somewhat disorderly body, which occasionally indulged in mixed metaphor, they have proved the impossibility of giving Ireland a Parliament now. But then, as they are obliged to admit, Walpole's Parliament was very corrupt, and no one would say that for that reason it would have been wise to suspend constitutional government in England in the eighteenth century. It is only through the pernicious habit of thinking of Irishmen as exceptions to all political rules that Grattan's Parliament is considered likely, had it lasted, to have come down to our time unreformed and unimproved.

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 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.

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."[2]

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 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 1: Printed in the earlier part of this volume.]

[Footnote 2: Essay on the Rise and Progress of the Arts and Sciences.]

[The end]
Edwin Lawrence Godkin's essay: A Lawyer's Objections To Home Rule

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