A Leap in the Dark by A.V. Dicey

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FIRST EDITION _June_ 1893
_Reprinted_ _June_ 1893
SECOND EDITION _July_ 1911
THIRD EDITION _January_ 1912

A LEAP IN THE DARK

A CRITICISM OF THE PRINCIPLES OF
HOME RULE AS ILLUSTRATED BY
THE BILL OF 1893

By A.V. DICEY
K.C., HON. D.C.L.

FELLOW OF ALL SOULS COLLEGE; FORMERLY VINERIAN PROFESSOR OF ENGLISH
LAW IN THE UNIVERSITY OF OXFORD; AUTHOR OF 'ENGLAND'S CASE AGAINST
HOME RULE,' 'THE VERDICT,' 'AN INTRODUCTION TO THE STUDY OF THE LAW
OF THE CONSTITUTION'

LONDON
JOHN MURRAY, ALBEMARLE STREET, W.
1912

TO IRISH UNIONISTS WHOSE NOBLE AND STRENUOUS DEFENCE OF THEIR OWN
RIGHTS AND LIBERTIES AS CITIZENS OF GREAT BRITAIN AND IRELAND WILL I
TRUST PRESERVE THE POLITICAL UNITY OF THE UNITED KINGDOM

PREFACE TO FIRST EDITION

This book is not a disquisition on the details of the Home Rule Bill. It
is an examination into the leading principles of the Bill with a view to
establishing two conclusions. The first is, that the Home Rule Bill,
though nominally a measure for the government of Ireland, contains in
reality a New Constitution for the whole United Kingdom. The second is,
that this New Constitution must work injury both to England and to
Ireland, and instead of 'closing a controversy of seven hundred years,
opens a constitutional revolution. The whole aim, in short, of the book
is by the collection together of arguments which separately have been
constantly used by Unionist statesmen, to warn the people of England
against a leap in the dark.

A.V. DICEY.

OXFORD: _May_ 1893.

CONTENTS

CHAPTER I
OLD AND NEW CONSTITUTION

Home Rule Bill a New Constitution for United Kingdom, p. 1.--The present
constitution, p. 2: 1. Effective authority of Parliament throughout
United Kingdom, p. 2: Distinction between supremacy of Parliament in
United Kingdom and supremacy of Parliament in Colonies, p. 4: 2. Absence
of federalism, p. 6: The New Constitution, p. 8: 1. Abolition in Ireland
of effective authority of Imperial Parliament, ib.: 2. Introduction of
federalism, p. 13.--Features of federalism, p. 15: Restrictions on Irish
(State) Parliament, ib.: Imperial (federal) Parliament, ib.: Means for
enforcement of federal compact, ib.: Recognition of federal spirit, p.
17.--Importance of change in constitution, p. 19.--The New Constitution
an unknown constitution, p. 19.

CHAPTER II
THE NEW CONSTITUTION

The four essential characteristics of the New Constitution, p.
21.--Supremacy of Parliament maintained, p. 22.--What is meaning of
supremacy of Imperial Parliament? p. 23: What it does not mean, ib.:
What it does mean, p. 24.--Real effect of reserved supremacy, p.
28.--Peril arising from ambiguity of supremacy of Parliament, p.
30.--Retention of Irish members at Westminster, p. 32.--Change of
Gladstonian opinion, p. 33.--Presence of the Irish members involves ruin
to Ireland, pp. 33, 34.--Mr. John Morley's opinion, p. 39.--Weakness of
England, p, 41. Mr. Morley's opinion, p. 41.--Manner in which England
weakened, p. 43: 1. Irish vote determines composition of British
Cabinet, ib.: 2. System of Cabinet Government destroyed, p. 45: 3. Irish
members changed into an Irish delegation, p. 46: 4. British Parliament
not freed from Irish questions, p. 47.--Inducements to accept plan, p.
48.--Maintenance of Imperial supremacy, p. 49.--English management of
English affairs, ib.--England does not really obtain management of
English affairs, ib.--Minority tempted to unfairness, p. 51.--Minority,
without intentional unfairness, may be oppressive, p. 52.--Plan of
retaining Irish members for all purposes, p. 53.--Comparison with power
hitherto held by or offered to Great Britain, p. 55.--Authority of
England before 1782, p. 55.--Authority of England under Grattan's
Constitution, p. 56.--Authority of England since the Union, p.
57.--Authority offered to England under Bill of 1886, p. 58.--Why should
England accept in 1893 a worse bargain than was offered her in 1886? p.
59: Two alleged reasons, p. 60: First reason, Retention of Irish members
concession to Unionists, p. 60: Futility of plea, ib.: Second reason,
England will not suffer any greater evil than she does at present, p.
63: Answer. Fallacy of statement, ib.--Explanation of Gladstonian
policy, p. 65.--Powers of Irish Government, p. 66: I. Irish Executive,
ib.: Importance of Executive, p. 68: Powers of Irish Executive, p. 68:
Position of military forces, p. 74: II. The Irish Parliament, p. 73: Its
power to appoint the Irish Government, ib.: Its legislative power, p.
76.--Legislation in opposition to English policy, p 78.--Power to pass
resolutions, p. 79.--The Restrictions, etc, p. 80: I. Their nature, ib.:
1. No restriction on power of Executive, p. 83: 2. No prohibition of
Acts of Indemnity, ib.: 3. No prohibition of _ex post facto_ law, p. 84:
4. No safeguard against violation of contract, p. 85: II. Enforcement of
Restrictions, p. 88.--The Veto, p. 88.--The Privy Council, p. 90.--Power
to nullify Irish Acts, ib.--Power as final Court of Appeal to treat
Irish Acts as void, p. 91.--How arrangement will work, p.
94.--Presumptions on which working of Constitutions depends false, p.
97: 1. Presumption that restrictions do not irritate, p. 98: Its
falsehood, ib.--Financial arrangements certain to cause discontent, p.
100.--The Customs, ib.--Charges in favour of England on Ireland, p.
102.--Irish objection to financial proposals, p. 103.--Presumption that
Ireland cannot nullify Restrictions. Its falsehood, p. 104.--Summary of
criticism, p. 110.

CHAPTER III
WHY THE NEW CONSTITUTION WILL NOT BE
A SETTLEMENT OF THE IRISH QUESTION

New Constitution is intended to be final settlement of Irish Question,
p. 112: But will not settle Irish Question for three reasons, p. 113: I.
New Constitution does not satisfy Ireland or England, ib.: Ireland not
satisfied, ib.: New Constitution detested by influential minority, p.
114: Irish Home Rulers not wholly satisfied, p. 115: New Constitution
will cause discontent of whole Irish people, p. 118: England not
satisfied, p. 119: 2. New Constitution rests on unsound foundation, p.
121: Belfast subjected to Dublin, p. 122: England subjected to Ireland,
p. 123: 3. New Constitution based on ambiguity, p. 125.--The nature of
the ambiguity, ib.--The result of the ambiguity, ib. The New
Constitution cannot last, p. 127.--Irish discontent leading either to
Federation or Separation, p. 128.--English discontent threatens
reaction, p. 130.

CHAPTER IV
PLEAS FOR THE NEW CONSTITUTION

Gladstonian apology, p. 132.--As to general considerations, ib.--General
Gladstonian objections, ib.: I. Strictures are prophecy, p. 133: 2.
Anomalies already exist in English Constitution, p. 135.--As to specific
arguments for Home Rule, p. 138.--Necessity, p. 138.--Argument for
necessity, ib.--Answer: argument invalid, 140.--Premises unsound, p.
141.--Premises do not support conclusion, p. 145.--No necessity for
Home Rule, ib.--True meaning of necessity forgotten, p. 146.--No danger,
p. 148: I. Safeguards, p. 149: Their unreality, ib.: 2. Grattan's
Constitution, ib.: No precedent, p. 150: 3. Success of Home Rule in
other countries, p. 152.--Instances of 'Home Rule' which need not be
considered, ib.--Cases of 'Home Rule' which require consideration, p.
154.--Federal Government, p. 155.--Colonial independence, p.
156.--Neither federal government nor colonial independence compatible
with the authority required in Ireland by Imperial Government, p.
157.--Weakness of law in case of federation, p. 158.--Weakness of law in
case of colonies, pp. 161, 162.--Policy of trust, p. 163.--Trust in
Irish leaders impossible, p. 164.--History of the Irish agitators, p.
164.--Gladstonian guarantee of trustworthiness worthless, p. 167.--Trust
in teaching of power, 169.--Answer. Fallacy exposed by Mr. Bryce,
ib.--Trust in the people and effect of Home Rule, p. 171.--Answer.
Political changes do not ensure content, pp. 171, 172.--Gladstonian
pleas are pleas for policy of Home Rule, but not pleas for new
Constitution, p. 173.

CHAPTER V
THE PATH OF SAFETY

The impending danger, p. 175.--Peril concealed by trust in Mr.
Gladstone, ib.--Peril concealed by peculiar condition of opinion, p.
178.--The path of safety and true policy, p. 180.--Policy of
seriousness, ib.--Seriousness of question at issue, ib.--Danger of civil
war, p. 181.--Policy of simplicity, p. 183.--Strenuous opposition to
Bill, ib.--Cry of obstruction futile, p. 184.--Details not to be made
too prominent, p. 185.--No appearance of concession allowable, p.
186.--Policy of appeal to the nation, p. 187.--House of Lords must
ensure dissolution, ib.--House of Lords may be called upon to enforce
Referendum, p. 188.--Conclusion, p. 191.

APPENDIX
PAGES

GOVERNMENT OF IRELAND BILL 195-223
ARRANGEMENT OF CLAUSES 195, 196

1. Establishment of Irish Legislature, p. 197--2. Powers of Irish
Legislature, ib.--3. Exceptions from powers of Irish Legislature,
ib.--4. Restrictions on powers of Irish Legislature, p. 198.--5.
Executive power in Ireland, ib.--6. Composition of Irish
Legislative Council, p. 199.--7. Composition of Irish Legislative
Assembly, ib.--8. Disagreement between two Houses, how settled, p.
200.--9. Representation in Parliament of Irish counties and
boroughs, ib.--10. As to separate Consolidated Fund and Taxes, p.
201.--11. Hereditary revenues and income tax, p. 202.--12.
Financial arrangements as between United Kingdom and Ireland, p.
203.--13. Treasury Account (Ireland), ib.--14. Charges on Irish
Consolidated Fund, p. 204.--15. Irish Church Fund, p. 205.--16.
Local loans, ib.--17. Adaptation of Acts as to Local Taxation
Accounts and Probate, etc., duties, ib.--18. Money bills and votes,
p. 206.--19. Exchequer judges for revenue actions, election
petitions, etc., ib.--20. Transfer of post office and postal
telegraphs, p. 207.--21. Transfer of savings banks, p. 208.--22.
Irish appeals, p. 209.--23. Special provision for decision of
constitutional questions, ib.--24. Office of Lord Lieutenant, p.
210.--25. Use of Crown lands by Irish Government, ib.--26. Tenure
of future judges, ib.--27. As to existing judges and other persons
having salaries charged on the Consolidated Fund, ib.--28. As to
persons holding civil service appointments, p. 211.--29. As to
existing pensions and superannuation allowances, p. 212.--30. As to
Police, ib.--31. Irish Exchequer Consolidated Fund and Audit, p.
213.--32. Law applicable to both Houses of Irish Legislature,
ib.--33. Supplemental provisions as to powers of Irish
Legislature, ib.--34. Limitation of borrowing by local authorities,
p. 214.--35. Temporary restriction on powers of Irish Legislature
and Executive, ib.--36. Transitory provisions, ib.--37. Continuance
of existing laws, courts, officers, etc., p. 216.--38. Appointed
day, ib.--39. Definitions, ib.--40. Short title, p. 217.

SCHEDULES 218-223

1. Legislative Council 218
2. Irish Members in the House of Commons 220
3. Finance 222

INTRODUCTION

Irish Unionists have pressed for a republication of _A Leap in the
Dark_. They hold that it will be of some service in their resistance to
the Coalition of Home Rulers, Socialists, and Separatists formed to
force upon the people of England and of Scotland a virtual dissolution
of the Union between Great Britain and Ireland. It would in any case
have been a pleasure to afford aid, however small, to the Irish
Unionists, whether Protestants or Catholics, engaged in the defence at
once of their own birthright and of the political unity of the United
Kingdom. Yet for a moment I doubted whether the republication of a
forgotten criticism of a forgotten Bill would be of essential service to
my friends. On reflection, however, I have come to see that, though the
Unionists of Ireland probably overrate the practical value of my book,
yet their hope of its serving the cause whereof they are the most
valiant defenders is based on sound reasons.

_A Leap in the Dark_ is a stringent criticism of the Home Rule Bill,
1893.[1] But the book has little to do with the details and intricacies
of that Bill. _A Leap in the Dark_ was published before the Home Rule
Bill of 1893 had reached the House of Lords, or had assumed that final
form, which made patent to the vast majority of British electors that a
measure which purported to give a limited amount of independence to
Ireland, in reality threatened England with political ruin. My criticism
is therefore in truth an attack upon the fundamental principles of Home
Rule, as advocated by Gladstone and his followers eighteen years ago.
These principles, moreover, have never been repudiated by the Home
Rulers of to-day. Some members of the present Cabinet, notably the Prime
Minister and Lord Morley, were the apologists of the Bill of 1893. In
that year _A Leap in the Dark, or Our New Constitution_, was, I venture
to say, accepted by leading Unionists, such as Lord Salisbury, the Duke
of Devonshire, Mr. Balfour, Mr. Chamberlain, Sir Henry James (now Lord
James of Hereford), as, in the main, an adequate representation of the
objections which, in the judgment of such men and thousands of
Unionists, were fatal to the acceptance of any scheme whatever of Home
Rule for Ireland. The battle over Home Rule lasting, as it did for
years, and ending with the complete victory of the Unionists, has been
forgotten by or has never become known to the mass of the present
electors. It is well that they should be reminded of the solid grounds
for the rejection by the Lords of the Home Rule Bill of 1893. It is well
that they should be reminded that this rejection was in 1895 ratified by
the approval of the electorate of the United Kingdom _A Leap in the
Dark_ will assuredly remind my readers that in 1893 the hereditary House
of Lords, and not the newly elected House of Commons, truly represented
the will of the nation. This is a fact never to be forgotten. It is of
special import at the present moment. Another equally undoubted fact
deserves attention. Home Rulers themselves despair of carrying a Home
Rule Bill until they shall have turned the Parliament Bill into the
Parliament Act, 1911, and my readers ought never to forget that the
passing of the Parliament Bill into law destroys, and is meant to
destroy, every security against the passing of any Home Rule Bill
whatever which the present majority of the House of Commons choose to
support. This gives an ominous significance to the obstinate refusal of
the Government to alter or amend any of the material enactments
contained in this ill-starred measure. _A Leap in the Dark_, combined
with a knowledge of the Parliament Bill and the legislative dictatorship
with which it invests the existing Coalition, suggests at least four
conclusions which must at all costs be forced at this moment upon the
attention of the nation. They may be thus summed up:

_First_.--If the Parliament Bill passes into law the existing
majority of the House of Commons will be able to force, and will
assuredly in fact force, through Parliament any Home Rule Bill
whatever (even were it the Home Rule Bill of 1893), which meets
with the approval of Mr. Redmond, and obtains the acquiescence of
the rest of the Coalition.

The Coalition need not fear any veto of the House of Lords. There
will be no necessity for an appeal to the electors, or in other
words to the nation. The truth of this statement is indisputable.
The legal right of the majority of the House of Commons to pass any
bill whatever into law, even though the House of Lords refuse its
assent, is absolutely secured by the very terms of the Parliament
Bill. That the leaders of the Coalition, such as Mr. Asquith, the
Chancellor of the Exchequer, and Mr. John Redmond, will press their
legal right to its extreme limits is proved to any man who knows
how to read the teaching of history, by the experience of 1893. Mr.
Gladstone used every power he possessed, and used it
unscrupulously, to drive a Home Rule Bill through the House of
Commons. He was a man trained in the historical traditions of
Parliament. He assuredly did not relish the use of the closure and
the guillotine. He was supported in the Commons by a very narrow
majority, never I think exceeding forty-eight, and often falling
below that number. The power of the party system, or as Americans
say, the "Machine," was admittedly much less in 1893 than it has
become in 1911. Yet Mr. Gladstone used such power as he possessed
to the utmost. He hurried through the House of Commons a Bill
which had not in fact received the assent of the nation. He made
the freest use of every device for curtailing freedom of debate. A
large and most important portion of the Home Rule Bill was not
discussed at all in the Commons. And this Bill contained
provisions, not appearing in its original form, for the retention
of eighty Irish members at Westminster with full authority to take
part in every kind of legislation which might be laid before
Parliament; though Mr. Gladstone himself held the fairness to
England of this provision dubious[2] and Mr. (now Lord) Morley had
in 1886 demonstrated by reasoning which to my mind is absolutely
conclusive that under a system of Home Rule the presence of Irish
representatives in the Imperial Parliament at Westminster would
work fatal injury to Ireland and gross injustice to England.[3] Can
any man able to draw from political precedents their true meaning
believe that Mr. Asquith, and the allies who are his masters, will
be more scrupulous in forcing the next Home Rule Bill through the
House of Lords than was Mr. Gladstone in forcing the Home Rule Bill
of 1893 through the House of Commons? Mr. Asquith is supported by a
large though incongruous majority. His almost avowed aim in pushing
the Parliament Bill, unchanged and unchangeable, through the Houses
of Parliament is to force the Home Rule Bill on the people of Great
Britain against their will. Hesitation to make use of this
dictatorial authority, should he ever obtain it, will to himself
mean political ruin; to his English supporters it will seem
political pusillanimity; by his Irish confederates it will be
denounced as breach of faith and treachery. As certainly as night
follows day the passing of the Parliament Act will be succeeded by
the attempted passing of a Home Rule Act.

_Secondly_.--Mr. Redmond and the Home Rulers, or Separatists, of
whom he is the leader, will exact under any Home Rule Bill of say
1912 or 1913, at lowest, every advantage which was demanded by
Irish Nationalists in 1893.

Why, in the name of common sense, when Irish Nationalists are
absolute masters of the situation, should they demand lower payment
for their support than was offered to them twenty years ago when
the Home Rule majority was every day losing strength, when every
one knew that nothing but the show of moderation gave the slightest
chance of a Home Rule Bill escaping the veto of the House of Lords,
when every one, except perhaps Mr. Gladstone, foresaw that the next
General Election would give to Unionists a crushing majority? Every
advantage conceded in 1893 to Irish Separatists at the expense of
England will assuredly reappear in one form or another in the next
Home Rule Bill. Thus Ireland will, we may anticipate, under the
next Home Rule Bill send to the Parliament at Westminster at least
eighty members armed with the fullest legislative authority, so
that, to revive the language current eighteen years ago, Ireland
will govern and tax England whilst England will retain no right
either to govern or to tax Ireland.

_Thirdly_.--Every question to which in 1893 Gladstonians could
discover no answer satisfactory to Unionists or to the electorate
of Great Britain requires an answer in 1911 as much as in 1893. The
answer favourable to Home Rule has not as yet been discovered.

Is it possible to combine the effective supremacy of the Imperial
Parliament with Home Rule or the substantial legislative
independence of Ireland? Can Ireland, close to the shore of Great
Britain, occupy the position of a self-governing colony, such as
New Zealand, divided from Great Britain by thousands of miles of
sea? Is it possible to create, or even to imagine, a Court which
shall decide whether a law passed by the Irish Parliament violates
the provisions of the proposed Home Rule Act? Above all, can the
wit of man devise any scheme of constitution which shall at once
satisfy the aspirations of Irish Nationalism and the patently just
demand of Ulster that Protestants shall retain the freedom and the
rights secured to them as citizens of the United Kingdom? Is there
any form of Home Rule which will satisfy the desire of Irish
Nationalists for something approaching national independence
without the urgent peril of rousing civil war between Ulster and
the Parliament at Dublin? All these inquiries, and others like
them, harassed the Parliament of 1893; they were all answered by
Unionists, that is by the majority of the British electors, with a
decided negative; they will all be raised and will all need an
answer when the leaders of the Coalition condescend to produce
their next Home Rule Bill or even to reveal its fundamental
principles.

_Fourthly_.--England in the circumstances of to-day is threatened
with two perils which did not exist in 1893, and yet are of
stupendous gravity.

The first is, that in the case of a measure of Home Rule the
opportunities for discussing its provisions which are contained in
the Parliament Bill may turn out nominal rather than real. It is
not at all certain that for such a Bill, even though it be abhorred
by the electorate of the United Kingdom, the House of Lords will be
practically able to secure the delay and elaborate discussion to
which Mr. Asquith professedly attaches immense importance.
Unionists will believe that the measure passed by a large majority
of the House of Commons is detested by the majority of the British
electors. But how will it be possible to carry on the government of
Ireland, to maintain order, or to save a loyal minority from gross
oppression after a Home Rule Bill applauded by Separatists has been
passed through the House of Commons, and for the first time has
been rejected by the House of Lords? Every official in Ireland,
down from the Lord Lieutenant to the last newly appointed member of
the Irish Constabulary, every Irishman loyal or disloyal, will know
that the Bill will within a year or two become law and that Irish
Nationalists will control the Parliament and the government of
Ireland. Will not the House of Lords be urged by every alleged
consideration of good sense and humanity to close without delay a
period of uncertainty which is threatening to turn into a reign of
anarchy or of terror? The question supplies its own answer. The
second peril is one whereof nobody speaks, but which must occur to
any man who has studied the history of the past eighteen years or
reflects upon the condition of public opinion. The peril, to put
the matter plainly, is that Home Rulers will not stop at attaining
Home Rule for Ireland, and that they may, and probably will,
attempt to undermine the political predominance of England.
Everything points in this direction. The agitation for Home Rule
has fostered in Ireland, and to a very limited extent in certain
other parts of the United Kingdom, a feeling approaching to
jealousy of English power. England or Great Britain is the
predominant partner. England is wealthy, England is prosperous.
England, as the language of common life imports, is the leading
member of the United Kingdom. Lord Rosebery announced with wise
foresight that Home Rule in Ireland could hardly be established
with benefit to the United Kingdom until the assent thereto of the
predominant partner had been obtained by force of argument. The
idea was grounded on common sense. Will it not suggest to Irish
Nationalists that their moment of authority must be used for
obtaining far greater privileges for Ireland than the extravagant
political power offered by Gladstonians in 1893? Is it not natural
for Home Rulers to think that the predominant partner ought to be
deprived of his predominance? The conduct of the Coalition and some
of its leaders points in this direction. They will have obtained
through the Parliament Act temporary, but strictly unlimited and
dictatorial, power. They will have obtained it by intrigue; they
have rejected and treated with scorn the idea of an appeal to the
people. They have claimed, not for Parliament but for the existing
House of Commons, an absolute legislative power superior to that of
the nation, a power which I assert with confidence is not possessed
by the elected Assemblies of the United States, or of the French
Republic, or of the Swiss Confederation: And by a strange
combination of circumstances one method for depriving the
predominant partner of legitimate authority may seem to a Home
Ruler to lie near at hand. Raise the cry of 'Home Rule all round,'
or of 'Federalise the British Empire.' Turn England into one State
of a great federation, let Wales be another, Scotland a third, the
Channel Islands a fourth, and for aught I know the Isle of Man a
fifth. Let the self-governing Colonies, and British India, send
deputies to the Imperial or Federal Parliament. You may thus for a
moment, under the pretence of uniting the Empire, not only divide
the United Kingdom, but deprive England or Great Britain, in form
at least, of that political supremacy and predominance which is the
real bond of union and peace not only throughout the United
Kingdom, but also throughout the length and breadth of the British
Empire. I do not tremble for the power--the lawful and legitimate
power--of England. Political devices, however crafty, break down
whenever they are opposed to the nature of things. I know that
unity is increasing throughout the Empire not through the cunning
or the statecraft of politicians, but through the whole course of
events. One part of our Imperial system becomes daily under the
effect of railways, steamers, telegraphs, and the like, nearer and
nearer to every other part. The sentiment of unity which is more
valuable than any law aiming at formal federation each year gains
strength. What I do fear and insist upon is the danger that a
legislative dictatorship conferred on a party, and therefore
necessarily taken away from the nation, should be employed in the
attempt, vain though it ultimately must be, to deprive the
predominant partner of a predominance requisite for the maintenance
both of the United Kingdom and of the British Empire.

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