HOME RULE AND FEDERALISM

Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. Why,' say they, should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?' This may be plausible enough, but it is only plausible.-Hamilton: The Federalist, No. lxxxv.

The true law-giver ought to have a heart full of sensibility. He ought to love and respect his kind, and to fear himself. It may be allowed to his temperament to catch his ultimate object with an instinctive glance; but his movements towards it ought to be deliberate. Political arrangement, as it is a work for social ends, is only to be wrought by social means. There mind must conspire with mind. Time is required to produce that union of minds which alone can produce all the good we aim at. . . . By a slow but wellsustained progress, the effect of each step is watched; the good or ill success of the first gives light to us in the second; and so, from light to light, we are conducted with safety through the whole series. We see that the parts of the system do not clash. The evils latent in the most promising contrivance are provided for as they arise. One advantage is as little as possible sacrificed to another. We compensate, we reconcile, we balance.

We are enabled to unite into a consistent whole the various anomalies and contending principles that are found in the minds and affairs of men. From hence arises not an excellence in simplicity, but one far superior, an excellence in composition.-Burke: Reflections on the French Revolution. THE Bill to amend the provision for the government of Ireland is a singular triumph of empiricism. It defies the frontal attacks of the theorist, for the simple reason that there is nothing theoretical about it. It is not Federalism,' it is not Dualism, still less is it to be compared with a colonial constitution of the usual type. That it is unsymmetrical,' as Mr. Balfour complains, may readily be conceded. That, perhaps, is not the least of its merits. There is no such thing as 'stock sizes' in constitutions except in the ingenious brain of a Sieyès, and the political exigencies of no two countries in the world are exactly alike. There are critics who seem to contend that the Bill violates some law of nature as to the progress of society, and Mr. Balfour, in his most speculative mood, has laid down five propositions as to such progress, and finding the Bill fails to conform to each and all of them, can find nothing more to say for it. This political rationalism would have been in place in the eighteenth century, but in an age

in which legal and economic history has taught us to beware of the a priori method, and to consider each case on its merits, it has a curious air of unreality. One might as well condemn the Bill out of Aristotle's Politics. It is the method of a schoolman, not of a statesman. To argue, for example, from the creation of a new State, such as that of the American Republic, to the readjustment of an old one like the United Kingdom, and to condemn the Home Rule Bill of 1912 because it fails to conform to the principles of the American Constitution of 1787 is, indeed, to exhibit a wonderful agility of mind, but it is not a sound application of the method of analogy. It is quite true that the Federal Constitution of 1787 was a step towards closer union'; it is conceivable-though not indisputable-that the Home Rule Bill is a step towards looser union. But the union between Ireland and Great Britain after the Home Rule Bill has been placed on the statute-book will still be closer than the bond which unites Massachusetts with the United States to-day. There is all the difference in the juristic world between the surrender of certain powers by a group of sovereign States like the American colonies' to a new Federal Government and the delegation of certain powers by a single sovereign State like the United Kingdom to a provincial Legislature.

The difference will be apparent to anyone versed in constitutional history or constitutional law. Until 1861 it was contended-not without considerable show of authority-that sovereignty in the American Republic remained with the States; but no one would seriously contend that under the Government of Ireland Bill sovereignty will be anywhere but where it is at present-viz. in the Imperial Parliament. Even to-day the Federal franchise in the United States is completely under the control of the individual States;1 under the Home Rule Bill the franchise for the Imperial Parliament will remain after the appointed day, as it was before it, governed by the laws of the Imperial Parliament. There will then, as now, be a common citizenship throughout the United Kingdom; but there is no Imperial citizenship in Germany, and in the United States the sphere of citizenship has not yet been wholly nationalised, despite the pious hopes of the men who framed the famous Fourteenth Amendment. Between the United Kingdom and the United States there is just this difference: that the former has a sovereign Government and the latter has not.

No one has any doubt where sovereignty resides in the United Kingdom, but the utmost perplexity exists among jurists as to

1 Cf. Cruikshank's Case. 92 U.S. Rep. p. 555. The Fourteenth Amendment has made but little difference.

where it resides in a Federal system. It may reside in the people,' as Webster argued in the case of the United States, or in the group of State Governments as Laband argues in the case of Germany, though each theory has any number of dissentients in both countries; or it may be conceived of as residing in the Federal Constitution." But we have yet to find anyone who will contend that under Home Rule sovereignty will reside in the Irish Constitution, unless he is prepared to kick the Crown into the Boyne.' The Crown-its supremacy, its perpetuity, and its indivisibility—is a juristic fact which opposes a stubborn obstacle to those who try to treat Home Rule as a case of federation. Nor is the distinction mere pedantry. The veto of the Crown on Irish legislation-a veto for which there is no parallel in a Federal system such as that of the United States or Germany-is a fact which at once puts the Irish Parliament entirely out of the category of the State legislatures in a Federal system. Their large residuary powers can only be controlled by stretching the 'sovereignty' of the Federal Constitution to its utmost limits by judicial interpretation of it. On the other hand, the veto of the Crown has always been present to the minds of their lordships of the Privy Council as decisively distinguishing the subordinate Legislatures within the British Empire from all Federal analogues. So long as that veto exists the Irish Legislature will never have the powers of a State Legislature of the United States. Or turn from this executive veto of the Crown to its legislative veto in the Imperial Parliament. Wherever an Irish statute conflicts with an Imperial statute, the rule of construction will be in favour of the latter. But wherever a Federal statute conflicts with the statute of a State in America, there is no such rule in universal operation: the Federal statute must be shown to come within the powers expressly surrendered by the States under the Constitution, or else it is null and void. Or, again, there is a third aspect of sovereignty-the supremacy of the common law in the United Kingdom, and of the Supreme Courts of Appeal. In a Federal system it is not always easy to determine

3 The original Thirteen States made the Constitution, but it in turn made the other States -Landon: The Constitutional History and Government of the United States—a statement of fact which furnishes a crushing commentary on Mr. Balfour's theory that every federal constitution has from the beginning been 'round and perfect and self-contained.'

Bacon, in his opinion in Calvin's Case (State Trials, Vol. II., p. 559, etc.), shows a perception, remarkable in those days of the infancy of political theory, of the juristic importance of this distinction. In monarchies, he points out, sovereignty is in the Crown, but in the busy and curious frames' of other commonwealths it subsists by a law precedent,' written or unwritten.

Cf. Bank of Toronto v. Lambe, 12 App., Cas. 575.

I should say England and Ireland. Scotch law is, of course, to be distinguished.

whether there is common law for the whole nation. Is there in the United States? Doubtless the Supreme Court when it has to interpret the Federal Constitution and Federal statutes assumes an independent interpretation of the law, and interprets them by an unwritten law of its own.' But supposing it has to decide in a suit by a citizen of one State against another State, it has to follow the interpretation based on the law by the highest court of that State. Now the Judicial Committee in the case of an action by an Englishman against the Government of Ireland—we will suppose a case of petition of right for breach of contract by an Irish department will itself determine the principles by which it decides the case; it is not bound by the principles laid down by the Court of King's Bench in Dublin. Again, if a statute of an American State Legislature is challenged in the Supreme Court on the ground that it deprives a subject of his property without due process of law,' due process of law will be defined by reference to the law and constitution of that particular State. But if a subject of the Crown challenges an Irish statute on the ground that the Irish Government have, in acting under it, infringed his common law rights, the Judicial Committee in Whitehall will apply the rules of the common law of the United Kingdom in laying down that no common law rights can be taken away except by express statutory words. Nay, to go further, not only will the Imperial Court decide such cases as come before it by its own principles of interpretation, but its jurisdiction will itself be equally unrestrained. In the United States no appeal lies from the State courts on matters of State law; it is only when a question of infringement of Federal statutes or the Federal Constitution arises that an appeal will lie. Otherwise the State courts are supreme. The Irish courts are not supreme, and will never be the appellate jurisdiction of the House of Lords over all causes will be exercised in all its plenitude by the Judicial Committee.

It will be apparent, therefore, that from whatever aspect we regard the new Constitution-executive, legislative, judiciary-it is a flagrant abuse of terms to call it Federalism and to brand it, as some of its critics are inclined to do, with all the vices of the Federal type and none of its virtues.

The argument that the tendency of all political unions is towards closer union is therefore seen, on closer examination, to resolve itself into the question: 'What is meant by union?' That confederations tend to become federal is perfectly true, but

There was a remarkable example of this in the case of Dorr v. United States, 195 U.S., 138, when the Supreme Court, in deciding that trial by jury did not extend to the Philippines, had, motu proprio, to determine what was a right fundamental in its nature. See the Harvard Law Review, xix. 547.

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federal unions do not tend to become unitary. The States of America have never shown the slightest inclination to grant to Congress the supremacy which is possessed by the Imperial Parliament, and which will continue in its possession after the grant of Home Rule to Ireland. There is, indeed, a kind of ebb and flow in the current of Unionism' in the constitutional history of the United States; one generation of judges, represented by Marshall's famous decision in the McCulloch v. Maryland case, stretches the Constitution in the direction of closer Federalism, another generation represented by the decision in the Dred Scott cases relaxes it in the direction of State autonomy; a revolution, largely precipitated by the decision in the Dred Scott case, imposes restrictions on the State Legislatures by changing the text of the Constitution, and another generation of judges set themselves to work to modify those restrictions. Not movement but equilibrium is characteristic of the history of that great archetype of Federal Constitutions. The equipoise of the Constitution is, perhaps, never quite restored to its earlier position; it seems to describe through history not a circle but a parabola. Machiavelli may have been wrong in his theory that history repeats itself, and that mankind moves through the ages in great cycles; but, in looking at the rise and fall, the ebb and flow, the continual mutations, of political forms throughout history, one seems to see no universal law except the law of a Heraclitean flux. The appeal to history should be one of emancipation, not of servitude. History, as a great legal writer " reminds us, sets us free'; it teaches us when we may discard the ancient usage by showing us what was its original purpose and to what extent it has outlived it. To critics of Mr. Balfour's school Die Weltgeschichte ist das Weltgericht. But this is to exchange statesmanship for fatalism. And history shows that nothing is stationary. Were Alexander Hamilton alive to-day he would hardly recognise some parts of that Constitution of which he was the godfather.

Not content with his theory of a universal law of closer union, Mr. Balfour would fain have us believe that all political unions are from their very commencement round and perfect and selfcontained,'" and that they are built up on an equality of parts.

Cf. The Slaughter House Case, supra, and the liberalising use by the Supreme Court of the 'police power.'

And cf. the recent decisions of the High Court of the Australian Commonwealth.

10 Mr. Justice O. W. Holmes in the Harvard Law Review, xii. p. 452. 11 The nimbleness of mind exhibited by this fluent generalisation is truly astonishing. It vaults over some five centuries of Swiss history, half a dozen years in the diplomacy of the North and South Bünde in Germany, and 120 years of American constitutional development. The decisions of the Supreme Court at Washington in the Annexation Cases' in 1903 show that the 'perfection' of the American Constitution is still to seek.