A Leap in the Dark by A.V. Dicey

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FOOTNOTES:

[95] J. M'Carthy, April 10, 1893, _Times Parliamentary Debates_, p. 354.
No part of these quotations is italicised in the report.

[96] J. M'Carthy.

[97] Mr. Sexton.

[98] Mr. Gladstone, April 21, 1893, _Times Parliamentary Debates_, p.
565.

[99] At Bodyke, June 2, 1887, Mr. M. Davitt said:--'Our people, however,
who so leave Ireland are not lost in the Irish cause, for they will join
the ranks of the Ireland of retribution beyond the Atlantic; and when
the day shall again come that we have a right to manage our own affairs,
the sun may some day shine down upon England when we here in Ireland
will have the opportunity of having vengeance upon the enemy for its
crimes in Ireland.'--_Freeman's Journal_, June 3, 1887. See 'Notes on
the Bill,' published by the Irish Unionist Alliance, p. 368. These
expressions were used after the union of hearts.

[100] 'But all these matters are, as it were, minor details. They all
sink into comparative insignificance before the one great demand--and I
almost apologise for mentioning them--because I want you to concentrate
your attention on the one great demand which we make, and the one
unalterable statement we intend to adhere to, that whether guilty or
innocent, these men, according to their lights and their consciences,
were trying to serve Ireland; that any of them who were guilty were
driven into this course by the misgovernment of Ireland, and the
oppression of Ireland by an outside power, and that if we are asked to
settle this Irish question, if we are asked to let peace reign where
discord and hatred reign at present, there must be no victims--that if
there is to be peace there must also be amnesty. I don't discuss the
question of guilt or innocence. For the sake of argument I will say that
there are some men in jail who are guilty. They must come out as well as
the innocent, because their guilt is due to misgovernment in the
past.'--Mr. Pierce Mahony, _Irish Independent_, April 5. See 'Notes on
the Bill,' p. 423.

'There is no use in deceiving ourselves upon this matter; we would be
fools if we thought that in the next few weeks, or within the next few
months, we would succeed in getting our brethren out of prison. I don't
believe we will; ... but I am convinced of this, that there is not a man
amongst them who will ever be called upon to serve anything like the
remainder of his sentence. I am convinced that in a short time--and the
extent of its duration depends upon other circumstances--every one of
these men will be restored to liberty if only we conduct this agitation
with determination, with resolution, and I would say above all with
moderation and with wisdom.'--Mr. John Redmond, M.P., _Dublin Irish
Independent_, April 5. See 'Notes on the Bill,' p. 424.

[101] See Mill, _Representative Government_, 1st ed. p. 300.

[102] Of course I do not for a moment dispute the legal right of
Parliament to repeal all or any of the articles of the Treaty of Union
with Ireland. I am writing now not upon the law, but upon the ethics of
the constitution. My contention is, that, as things stand, the undoubted
assent of Great Britain (or even perhaps of England, in the narrower
sense) is morally requisite for the repeal or at any rate for the
remodelling of the Treaty of Union. Note that Ireland would stand
morally and logically in a stronger position if demanding Separation
than when demanding a revision of the Act of Union. An example shows my
meaning. _A, B_, and _C_ form a partnership. _A_ is by far the richest,
and _C_ by far the poorest of the firm. _C_ finds the terms of
partnership onerous. He may have a moral right to retire, but certainly
he cannot have a moral, and would hardly under any system of law have a
legal, right to say, 'I do not want to leave the firm, but I insist that
the terms of partnership be remodelled wholly in my favour.' Nor again
is it conceivable that _B_ and _C_ by uniting together could in fairness
claim to impose upon _A_ disadvantages the burden of which he had never
intended to accept.

[103] See pp. 22-31, _ante_.

[104] 'But who proposed that Ireland should be anything else than an
integral part of the United Kingdom (Ministerial cheers), or rather of
the Empire?' (Opposition cheers).--Mr. Sexton, April 20, 1893, _Times
Parliamentary Debates_, p. 522. The confusion of ideas and the
hesitation implied in Mr. Sexton's expressions are noteworthy.

[105] England adhered with absolute fidelity to her renunciation of the
right to legislate for Ireland. Whatever were the other flaws in the
Treaty of Union, it was no violation either of 22 Geo. III. c. 63, or of
23 Geo. III. c. 28. The worst features of the method by which the Act of
Union was carried would have been avoided had the English Parliament
resumed the right to legislate for Ireland. The Treaty of Union depends
on Acts both of the British and of the Irish Legislature. This is
elementary but has escaped the attention of Mr. Sexton (see _Times
Parliamentary Debates_, Feb. 13, 1893, p. 319), whose investigations
into the history of his country are apparently recent.

[106] "The plan that was to be proposed was to be such as, at least in
the judgment of its promoters, presented the necessary
characteristics--I will not say of finality, because it is a discredited
word--but of a real and continuing settlement."--Mr. Gladstone, Feb. 13,
1893, _Times Parliamentary Debates_, p. 303.

[107] See Mr. Gladstone's Irish Constitution, _Contemporary Review_,
May, 1886, p. 616.

CHAPTER IV

PLEAS FOR THE NEW CONSTITUTION

Gladstonians when pressed with the manifest objections to which the new
constitution is open rely for its defence either upon general
considerations intended to show that the criticisms on the new
constitution are in themselves futile, or upon certain more or less
specific arguments, of which the main object is to establish that the
policy of Home Rule is either necessary or at least free from danger,
and that, therefore, this policy and the new constitution in which it is
to be embodied deserve a trial.

My object in this chapter is to examine with fairness the value both of
these general considerations and of these specific arguments.

The general considerations are based upon the alleged prophetic
character of the criticisms on the new constitution or upon the
anomalies to be found in the existing English constitution.

Ministerialists try to invalidate strictures on the Home Rule Bill, such
as those set forth in the foregoing pages, by the assertion that the
objections are mere prophecy and therefore not worth attention.

This line of defence may, as against Home Rulers, be disposed of at once
by an _argumentum ad hominem_. No politicians have made freer use of
prediction. Every Gladstonian speech is in effect a statement that is a
prophecy of the benefits which Home Rule will confer on the United
Kingdom. Gladstonian anticipations no doubt are prophecies of future
blessings; but whoever foretells the future is equally a prophet,
whether he announces the end of the world or foretells the dawn of a
millennium. And history affords no presumption in favour of the prophet
who prophesies smooth things. The prognostics of a pessimist may be as
much belied by the event as the hopes of an optimist. But for one
prophet to decry the predictions of another simply as prophecies is a
downright absurdity. Even among rival soothsayers some regard must be
had to fairness and common sense; when Zedekiah, the son of Chenaanah,
smote Micaiah on the cheek, he struck him not on the ground that he
prophesied but that his gloomy predictions were false. Zedekiah was an
imposter, he was not a fool, and after all Micaiah, who prophesied evil
and not good, turned out the true prophet.

But an _argumentum ad hominem_ is never a satisfactory form of
reasoning, and it is worth while considering for a moment what is the
value of prophecy or foresight in politics. Candour compels the
admission that anticipations of the future are at best most uncertain.
Cobden and Bright foretold that Free Trade would benefit England; they
also foretold that the civilised world would, influenced by England's
example, reject protective tariffs. Neither anticipation was
unreasonable, but the one was justified whilst the other was confuted by
events. All that can be said is that on such anticipations,
untrustworthy though they may be, the conduct no less of public than of
private life depends. Criticism on anything that is new and untried,
whether it be a new-built bridge or a new-made constitution, is of
necessity predictive. But there is an essential difference between
foresight and guessing. The prevision of a philosophic statesman is
grounded on the knowledge of the past and on the analysis of existing
tendencies. It deals with principles. Such, for example, was the
foresight of Burke when he dogmatically foretold that the French
Constitution of 1791 could not stand.[108] Guessing is at best based on
acute observation of the current events of the day, that is of things
which are in their nature uncertain. On January 29, 1848, Tocqueville
analysed the condition of French society, and in the Chamber of Deputies
foretold the approach of revolution.

On February 21, 1848, Girardin said that the monarchy of July would not
last three days longer. February 24 verified the insight and foresight
of the statesman, and proved that the journalist was an acute observer.
The difference is worth consideration. Tocqueville's prophecy would in
all probability have been substantially realised had Louis Philippe
shown as much energy in 1848 as in 1832, and had the Orleanist dynasty
reigned till after his death. Girardin's guess would not have been even
a happy hit if one of a thousand accidents had averted the catastrophe
of February 24. The worth of the arguments against or for the new
constitution depends upon the extent to which they are based upon a
mastery of general principles and upon a sound analysis of the
conditions of the time, and in these conditions are included the
character of the English and of the Irish people. But to object to
criticisms simply as prophecies is to reject foresight and to forbid
politicians who are creating a constitution for the future to consider
what will be its future working.

Another Gladstonian argument is that because the English constitution
itself is full of paradoxes, peculiarities, and anomalies, therefore the
contradictions or anomalies which are patent in the new constitution
(such for example as the retention of the Irish members at Westminster)
are of no importance.

The fact asserted is past dispute. Our institutions are based upon
fictions. The Prime Minister, the real head of the English Executive, is
an official unknown to the law. The Queen, who is the only
constitutional head of the Executive, is not the real head of the
Government. The Crown possesses a veto on all legislation and never
exercises it; the House of Lords might, if the House pleased, reject
year by year every Bill sent up to it by the House of Commons; yet such
a course of action is never actually pursued and could not be dreamt of
except by a madman. There is no advantage in exemplifying further a
condition of things which must be known to every person who has the
slightest acquaintance with either the law, or the custom, of the
constitution. But the inference which Gladstonian apologists draw from
the existence of anomalies is, in the strict sense of the word,
preposterous. On the face of the matter it is a strange way of reasoning
to say that because the constitution is filled with odd arrangements
which no man can justify in theory, you therefore, when designing a new
constitution, should take no care to make your arrangements consistent
and harmonious. But the Gladstonian error goes a good deal deeper than
is at first sight apparent. The anomalies or the fictions of the
constitution are in reality adaptations, often awkward enough in
themselves, of some old institution, and are preserved because, though
they look strange, they are found to work well. Thus the King of England
was at one time the actual sovereign of the State, or at any rate the
most important member of the sovereign power, and the Ministers were in
reality, what they are still in name, the King's servants. The powers of
the Crown have been greatly diminished, and have been transferred in
effect to the Houses of Parliament, or rather to the House of Commons,
and the Ministers taken from the Houses are in fact, though not in name,
servants of Parliament. This arrangement leaves an undefined and
undefinable amount of authority to the Crown. It is not an arrangement
which any man would have planned beforehand; but it is kept up, not
because it is an anomaly, but because it has, as a matter of
experience, turned out convenient. What even plausible argument can
thence be drawn to show that a new constitutional arrangement, on the
face of it awkward and inconvenient, will for some unknown reason turn
out workable and beneficial? He who reasons thus, if reasoning it can be
called, might as well argue that because an old shoe which has gradually
been worn to the form of the foot is comfortable, therefore a shoemaker
need not care to make a new shoe fit.

These two general replies to strictures on the new constitution are in
themselves of no worth whatever. They deserve examination for two
reasons only. They are, in various shapes, put forward by politicians of
eminence, they exhibit further in a clear form a defect which mars a
good deal of Gladstonian reasoning. Ministerialists seem to think that
arguments good for the purpose of conservatism are available for the
purpose of innovation. This is an error. A conservative reasoner may
urge the uncertainty of all prevision, or the fact that the actual
constitution, though theoretically absurd or imperfect, works well, as
reasons of some weight, though not of overwhelming weight, for leaving
things as they are, but it must puzzle any sensible man to see how
either the uncertainty of prevision or the fair working of existing
institutions can be twisted into reasons for taking a political leap in
the dark.

Let us dismiss then objections which as they are fatal to all criticism
are in reality ineffective against any criticism of our new
constitution. When this is done it will be found that the Gladstonian
pleas in favour of Home Rule, for such are in reality their apologies
for the new constitution, may be brought under two heads. They are
intended to show, first, that the concession of parliamentary
independence to Ireland is a necessity, and, secondly, that at worst it
involves no danger.[109]

A. _Necessity for Home Rule_. That the concession of Home Rule to
Ireland is a necessity, forms the implied, if not always the asserted,
foundation of the case in favour of Gladstonian policy.

Ireland, it is argued, has for generations been discontented and
disloyal. Every sort of remedy has been tried. The rule of the ordinary
law, coercion, Protestant supremacy, Catholic relief, the
disestablishment of the Anglican Church, the maintenance of the English
land tenure and English landlordism, the introduction of a new system of
land tenure unknown to any other country in the world and more
favourable to tenants than the land law of any other State in Europe,
the removal of every grievance which could be made patent to the
Imperial Parliament, every plan or experiment which could approve itself
to the judgment of English politicians has been tried, and no scheme,
however plausible, has ended in success. Concession has proved as
useless as severity, and the existence in the Statute Book of a
permanent Coercion Act is a standing proof of failure. He who asserts
that Irish disloyalty or discontent has not declined understates the
case. It has increased. Grattan was a statesman of a more exalted type
than O'Connell, and Grattan was more zealous for connection with England
than was the Roman Catholic tribune. And though in Grattan's time the
grievances of Ireland were in every man's judgment far more intolerable
than, even on the showing of Home Rulers, are the wrongs which Ireland
now endures, the Ireland of Grattan was loyal to England. O'Connell was
a nobler leader than Parnell, and it would be absurd to suppose that any
Parnellite or Anti-Parnellite exerted a tenth of O'Connell's influence.
Yet Parnell and Parnell's followers have achieved a feat which the hero
of Catholic emancipation could never accomplish; O'Connell never
obtained for Repeal more than half the votes of Ireland's parliamentary
representatives; Parnell and his followers have rallied the vast
majority of Irish members in support of Home Rule. Meanwhile year by
year the government of England is weakened, and (though the argument
comes awkwardly from the mouth of English constitutionalists who are
allies and friends of conspirators and boycotters) the morality of
English public life has been undermined, by the presence at Westminster
of Irish members who, regarding the English Parliament as an alien
power, weaken its action, despise its traditions, and degrade its
character. One remedy for Irish miseries and for English dangers has not
been tried. No English statesman before Mr. Gladstone (it is urged) has
offered to Ireland the one thing which Ireland desires--the boon or
right of parliamentary independence. Be the desire for Home Rule
reasonable or not, it is Home Rule for which Ireland longs. Ireland
feels herself a nation. Satisfy then Ireland's wish, meet the feeling of
nationality, and Ireland will be at rest. This experiment must at least
be tried; its perils must be risked. The present situation is
intolerable, the concession of Home Rule to Ireland is a necessity.

This, to the best of my apprehension, is the Gladstonian argument. My
aim has certainly been to state it fairly and in its full force.

Is the argument valid? Is the plea of necessity made out? The answer may
be given without hesitation. It is not. The allegations on which the
whole train of reasoning rests are tainted by exaggeration or
misapprehension, and the allegations, even if taken as true, do not
establish the required inference; the premises are unsound, and the
premises do not support the conclusion.

The premises are unsound.

The Gladstonians are far too much of parliamentary formalists. Their
imagination and their reason are impressed by the strength in the House
of Commons of the Irish party. The eighty votes from Ireland daunt them.
But wise men must look behind votes at facts. The eighty Irish Home
Rulers are, it is true, no light matter, even when allowance is made
for the way in which corruption and intimidation vitiate the vote of
Ireland. But their voice is not the voice of the Irish people; it is at
most the mutter or the clamour of a predominant Irish faction. It is the
voice of Ireland in the same sense in which a century ago the shouts or
yells of the Jacobin Club were the voice of France. To any one who looks
behind the forms of the constitution to the realities of life, the voice
of Irish wealth, of Irish intelligence, and of Irish loyalty is at least
as important as the voice of Irish sedition or discontent. The eighty
votes must in any case be reckoned morally at not more than sixty, for
to this number they would be reduced by any fair and democratic scheme
of representation. No one can be less tempted than myself to make light
of Irish turbulence and Irish misery. But it must not be exaggerated.
The discontent of 1893 is nothing to the rebellion, sedition, or
disloyalty of 1782, of 1798, of 1829, or of 1848. If Irishmen of one
class are discontented, Irishmen of another class are contented,
prosperous, and loyal. The protest of Irish Protestants--the grandsons
of the men who detested the Union--against the dissolution of the Union,
is the reward and triumph of Pitt's policy of Union. The eighty Irish
members ask for Home Rule, but the tenant farmers of Ireland ask not for
Home Rule but for the ownership of the land; and the Irish tenant
farmers will and may under a Unionist Government become owners of their
land, and, what is no slight matter, may become owners by honest means.
Vain for Mr. M'Carthy[110] to assert that Irish farmers would not have
accepted even from Mr. Parnell the most favourable of land laws in
exchange for Home Rule. Mr. M'Carthy believes what he says, but it is
impossible for any student of Irish history or of Irish politics to
believe Mr. M'Carthy. Facts are too strong for him. Mr. Lalor showed a
prevision denied to our amiable novelist. Gustave de Beaumont understood
political philosophy better than the lively recorder of the superficial
aspects of recent English history. Mr. Parnell and Mr. Davitt, and the
whole line of witnesses before the Special Commission, tell a different
tale. The very name of the _Land_ League is significant. Home Rule was a
mere theme for academic discussion in the mouth of Mr. Butt. Repeal
itself never touched the strongest passions of Irish nature, though
advocated by the most eloquent and popular of Irish orators. Not an
independent Parliament, but independent ownership of land, has always
been the desire of Irish cultivators. It was a cry for the land which
gave force to the demand for Home Rule; and an Irish agitator, if his
strength fails, renews it by touching the earth. But why confine our
observation to Ireland? We here come upon the passions, not of Irish
nature, but of human nature. There is not a landowner in France who does
not care tenfold more for the security of his land than for the form of
the government. If peasants trembled for their property the Republic
would fall to-morrow. This is no mere conjecture; the peasantry were
Jacobins as long as the Jacobins gave them the land, they were
Imperialists whilst Napoleon was their security against a restoration
which to them meant confiscation of land purchased or seized during the
Revolution. The country population of France heard with indifference of
the fall of Louis Philippe, and possibly approved the proclamation of
the second Republic. But the communism of 1848 roused every landowner
against Paris. The peasant proprietors filled the benches of the
National Assembly with Conservatives or Reactionists who would save them
from plunder; fear became for once the cause of courage, and dread of
loss of property sent thousands of peasant proprietors to Paris, that
they might crush by force of arms the socialist insurrection of June.
Perjury, fraud, and cruelty disgraced the _coup d'etat_ of 1851. But, as
Liberals now see, the second Empire, hateful though it was to every man
who loved freedom or cared for integrity, did not owe the permanence of
its power to cunning or to violence. It was the dread of the Red Spectre
which drove the landowners of France into Imperialism; they may have
liked parliamentary liberty, it was a pleasant luxury, but they loved
their land and property, it was their life-blood, and by Socialism their
land and property was they believed menaced.

As to the Coercion Act, no sensible man, be he Radical or Tory, need
trouble himself. The Criminal Law and Procedure (Ireland) Act, 1887, is
neither a disgrace to England nor an injury to Ireland. Its permanence,
which is the cause of its mildness, is its merit. Well would it have
been had the Act been extended to the whole United Kingdom. Local laws
are open to some of the same objections as temporary laws. The
enactment contains some improvements in our criminal procedure. There is
no more idle superstition than the belief that criminal procedure does
not, like other human arrangements, require change. If incendiarism
should become an element in the conduct of trade disputes, if dynamite
is to be recognised as a legitimate arm in political conflicts, the
criminal law of the United Kingdom will, we may be sure, need and
receive several alterations and improvements.

By far the strongest portion of the Gladstonian argument is the stress
that can be laid on the demoralisation of Parliament, produced partly,
though not wholly, by the Irish vote. This is a consideration which, as
far as it goes, tells in favour of Home Rule. It is, however, a
consideration of which the Gladstonian apologist for the new
constitution of 1893 [can] make no use. His reasoning of necessity
stands thus:

The presence of 80 Irish members at Westminster has demoralised
Parliament, therefore we must above all things retain 80 or possibly 103
Irish members at Westminster. He is placed in a hopeless dilemma; he
dare not draw the only conclusion to which his argument points, namely,
that the Irish members must be excluded from the Parliament at
Westminster. By a strange fatality, the policy of 1823 retrospectively
condemns the policy of 1886, whilst the very strongest argument in
favour of the policy of 1886 condemns the policy of 1893.

The premises, were they sound, do not support the conclusion.

There exists undoubtedly such a thing in politics as necessity.

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