ticians as one of the greatest gains of an extensive devolution of the powers and duties of Government to new bodies as to the whole of the United Kingdom.

In his last condition Lord Hartington, if his words are not to be taken in a very narrow sense, goes dangerously near to an infringement of the sound principle pointed out by Montesquieu: "Il n'y a point encore de liberté, si la puissance de juger n'est pas séparée de la puissance législative et de l'exécutrice."* It is to be presumed, however, that what he really means is that the judges of Ireland should be appointed and be removable by some minister responsible (as are the Chancellors of England and Ireland) in fact, though not according to legal theory, to the Houses of Parliament. The position of the judges, according to Mr. Gladstone's plan, has been already commented on, and it is only necessary to add that the Imperial Government, by reserving to the Queen the prerogative of giving or refusing her consent to the dismissal of an Irish judge, on an address for his removal by the Irish body, instead of delegating that right to the Lord-Lieutenant, might make the Irish judges practically independent of the Irish Government. what Lord Hartington stipulates for by his fourth condition is, that the Imperial Parliament shall retain the right of removing an Irish judge by an address to the Queen, it must be frankly admitted that in view of the condition of Ireland there is much to be said

*"De l'Esprit des Lois," livre xi. chap. 6.

If

in its favour; but the difference between Lord Hartington and those who would support a new Bill on the lines of the one just rejected is, as to this point, a matter of detail rather than of principle.

Upon the whole, then, from an examination of these conditions, it appears that the first and second may be fairly said to go to the principle, and the third and fourth rather to the details, of any plan for a subordinate Irish Government; that the second may be conceded by the most thoroughgoing advocates of Home Rule; that the third condition, if construed literally, is not fulfilled by the existing local government of England, and if construed more liberally, affords little guidance, unless the general scope of the authority of the proposed government is first settled; and that the fourth condition is one which might be complied with, even if it were proposed to establish a government at Dublin on lines similar to that of Mr. Gladstone's Bill.

With every deference for the authority of Lord Hartington and Mr. Chamberlain, it must be said that the former in laying down his third and fourth conditions, and the latter in suggesting the Canadian system, begin the solution of the problem before us at the wrong end. The first question to be decided by anyone approaching the subject is, whether the proposed subordinate government is to have power to deal with all exclusively Irish affairs, under conditions necessary for the maintenance of the Union, or whether

it is to be simply an authority limited to the discharge of administrative functions. Its form and the restrictions upon its power must depend on the settlement of this question. If the principle of Home Rulei.e. that the proposed Irish Government should have the right of dealing with matters coming within the sphere of private law in Ireland, as well as with some departments of public law-is granted, the next step is to settle what are Imperial as distinct from Irish affairs. The former must then be excepted from the legislative power of any Irish Parliament. The best plan is then to take the principal divisions of the corpus juris from any such work as Professor Holland's on jurisprudence, and to consider as to each division what powers of legislation shall be delegated. In regard to private law, it will probably be found that the least objectionable means of limiting the actions of the proposed Irish Legislature will be, not to except certain branches from its powers but to lay down certain general principles which none of its laws shall infringe (e.g. that no law shall be valid which impairs the obligation of contracts, or attacks the fundamental bases of the law of property, or invalidates any title to real property existing at the time of the passing of the Act, without compensation, &c.)— leaving it to the courts of justice to say, as cases arise, whether any particular enactment is or is not a violation of these principles and ultra vires. Coming, then, to public law, we have first to deal with the

matters relating to the constitution of the proposed Irish Government. Is it to have power to alter its own constitution, and if so to what extent? Is it to be allowed to change the existing local government and the laws relating to the position of judicial and administrative officers? Are the laws relating to the relief of the poor, education, prisons, railways, highways, &c., to be left to it? Is the substantive portion of the criminal law and the regulation of procedure to be entrusted to it? It is upon the answers given to these and similar questions that the determination of the best method of drafting a Bill for granting Home Rule, and the constitution of the proposed subordinate Government, ought to rest. If Mr. Gladstone's Bill be tested carefully, by applying these questions to it, it will be found that in the main, wherever a doubt could fairly be raised as to the powers of the Irish Government (the principle of Home Rule being of course assumed), it was settled rather in favour of the Imperial Government than of the subordinate authority.

11. THE BEARING OF THE SCHEME ON FEDERATION.

There are many indications that a remarkable change has taken place in public opinion as to our relations with the colonies, which may lead to great alterations in the constitution of the Empire, and there has been of late considerable discussion of the feasi

bility of plans for making the union of the Empire closer and more effective by "federation." It has been supposed by some that the passing of a Bill for Home Rule on the lines of Mr. Gladstone's measure would tend to defeat this movement. This idea arises partly from the erroneous view that the Bill destroyed the supremacy of Parliament, and partly from a misconception of the term federation.

A federal government is formed by the union of sovereign states for the promotion of the interests common to all. For this purpose the states desiring to be united abrogate certain of the powers of sovereignty, and by agreement confer on a federal government the powers so abrogated. The result is that neither the federal government nor the government of such state is supreme in internal affairs, though the former may be so in regard to foreign relations. The United States of America of course afford the example of a federal union which will occur most readily to the mind. Congress, which is sometimes supposed to be a legislature with absolute powers, is not supreme, and in reality can only legislate on eighteen classes of subjects;* and an Act of Congress may be pronounced by a court of justice to be ultra vires and void. The supremacy of a legislative body is impossible in a federal union of states, and before the British Empire can be federated, in the proper sense of the term, the sovereignty of Parliament must be

* Constitution of United States, Art. 1, sec. 8, Farrar's Manual, p. 6.