in Practice.
Part I. The New Constitution
[pg 003]
I.—The Constitution: A Commentary. By Professor J. H. Morgan
“Home Rule is at bottom Federalism,” we are told1 by the most distinguished jurist among its opponents. It is urged against it that Federal Governments are almost invariably weak Governments, and that, in so far as they are strong, they are as “symmetrical” as the new constitution is unsymmetrical. Cornewall Lewis once thought it necessary to write a book on the Use and Abuse of Political Terms, and there is a great danger in the present controversy of our being enslaved by the poverty of our political vocabulary. The term “Federalism” is put to such new and alien uses as to darken counsel and confuse thought. That Federal Executives are usually weak, that in the dual allegiance of a Federal system men often prefer the State authority which is near to the Federal authority which is remote, that the respective limits of Federal and State legislation are defined with difficulty and observed with reluctance, that conflict of laws is more often the rule than the exception, that [pg 004] Federal constitutions are rigid rather than flexible, and, in a word, that progress is sacrificed to stability: all these things are true, and all these things are irrelevant. The Government of Ireland Bill is not, and cannot be, the corner-stone of a Federal system for the United Kingdom, although its duplication in the case of Scotland and of England would not be impossible, should it appear desirable. We may, for want of a better term, call it the foundation of a system of Devolution, but we must not call it Federalism.
Putting on one side for the moment the question whether Home Rule is Federalism or not, I am inclined to enter a protest against all these attempts to fit the Bill into the categories of the jurist. It is very doubtful whether any two constitutions in the world, even federal constitutions, can be brought under one species. Two of the most successful “federal” constitutions present the gravest anomalies to the theorist. The Canadian Constitution, according to Professor Dicey, betrays a logical fallacy in the very words of its preamble;2 and German jurists have wrangled no less inconclusively than incessantly about the legal character of the Empire and as to where its sovereignty resides;3 yet in neither case has the practical operation of these constitutions been much the worse for the legal solecisms which they present. Indeed, it would not be too much to say with Aristotle that the “mixed” and not the “pure” type of government is the most successful, [pg 005] and that when Federalism is, as in the United States, at its purest, it is also at its weakest. The constitution of Imperial Germany ought, on this kind of reasoning, to be a flagrant perversion, and yet it has persisted in enduring for some forty-one years, and the prestige of its principal organ, the Bundesrath, although violating all Mr. Balfour's principles as to “equality” in its constitution, is, according to the doyen of the constitutional lawyers of Germany, increasing every day.4 The argument that “Federalism” is incompatible with the preponderance of the “predominant partner,” and that no “federal” union is possible in these islands owing to the superior position occupied by England, would, even if it were relevant, be easily refuted by the example presented by the hegemony of Prussia.
The same objection may be urged against the contention that the grant of self-government, whether to Ireland alone or to the rest of the United Kingdom, is both reactionary and unprecedented. The progress of all civilised communities, we are told, is towards political integration, not away from it. Devolution, it is said, is gratuitous in the case of a “United” Kingdom whose very union represents an ideal imperfectly achieved by the less fortunate countries which have had to be content with something less complete in the form of Federalism. Nations or Colonies mutually independent federate as a step towards union; it is “unprecedented” to reverse the process and qualify union by looser ties of cohesion. Now this attempt “to construct a normal programme for all portions of mankind”5 cannot be sustained. If it [pg 006] could, it would avail as a conclusive argument against the grant of self-government to our Colonies whose claims to legislative independence grow with their growth and strengthen with their strength.6 But it is not even true of Federal Unions. Anyone who takes the trouble to study the history of judicial interpretation of the American Constitution will find that there is a constant ebb and flow in the current of “unionism.” The intention of the framers of the 14th Amendment to create a United States citizenship has been largely neutralized by the decisions of the Supreme Court, which have inclined strongly in the direction of the legislative autonomy of the States.7 Nor is this all. We are told that Federal Constitutions are “round and perfect and self-contained,”8—that they are characterized by “equality” of all the parts—and that, like the work of the divine law-giver of early communities, they are finished the moment they are begun.9 But these confident inductions cannot be sustained. The history of the constitution of the United States and of Imperial Germany tells another story—a story of ancillary communities and dependencies in various stages of political apprenticeship. If we look for the American Constitution where all such constitutions must really be sought, that is to say not in the original text, but in the commentary of the courts, we shall find a truly remarkable tendency of late years to [pg 007] emphasize this heterogeneity, inequality and incompleteness.10
The new Bill proposes a delegation of authority, both executive and legislative. Unlike a Federal constitution, it contemplates no distribution of sovereignty (begging a question which has often vexed the jurists as to the partibility of sovereignty). The new Government in Ireland will, indeed, be carried on in the name of the Crown, the writs of the Irish Court will run in the King's name, the statutes of the Irish Parliament will be enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Senate and Commons. But the Imperial Government and the Imperial Parliament will remain supreme. The executive power in Ireland will continue vested in His Majesty, though some prerogatives may be delegated to the Lord-Lieutenant who, as respects them, will exist in a dual capacity—some of these he will exercise on the advice of the Imperial Government, others on the advice of the Irish Government. So far, however, as the law, as distinguished from convention, is concerned, he will be in no way bound to act on the advice of his Irish Ministers except in so far as his “instructions” require him to do so. The words of the Bill do, indeed, contemplate with more explicitness than is usual in our written constitutions, a transfer of executive as well as of legislative authority, but they are by no means exhaustive, and [pg 008] they still leave it to His Majesty to determine11 what prerogatives shall be delegated after the Act has come into force. As regards the legislative power, it will remain with the Imperial Government to give it effect by granting or withholding the King's assent to Irish legislation,12 and the Imperial Parliament may, at any time, exercise its supremacy to the prejudice of such legislation, even after it has found its way on to the Irish statute-book. As regards the judiciary, there will, of course, be no dual judiciary: Irish Courts will interpret and enforce Imperial as well as Irish statutes, but both in the one case and in the other their judgments will be subject to appeal to an Imperial Court—the Judicial Committee of the Privy Council. In other words, the Imperial power will be supreme in the executive, the legislative, and the judicial sphere.
Now in Federalism in the true sense—and I regard the constitution of the United States as the archetype—there is no such subordination. The authority of the constituent states and of the Federal nation are distinct and independent of one another. The Governor of the State is appointed not by the Federal authority, but by the State itself, whose servant he is. There [pg 009] is no “Crown” to serve as a common denominator of State and Federal Executives.13 The one is not subordinate to the other, but is co-ordinate with it. The legislation of the State