A Leap in the Dark by A.V. Dicey

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When England acknowledged the independence of the Thirteen Colonies, or
when France surrendered Metz and Strasburg, no one could talk of
imprudence of impolicy. The will of Englishmen and of Frenchmen was
coerced by the force of events. When all Protestant Ireland was in arms,
when the whole Irish nation demanded parliamentary independence, when
England had been defeated in America, when France and Spain were allied
against her, then the acceptance of Grattan's declaration of right was
in truth a necessity. When Wellington became the supporter of Catholic
Emancipation because he would not face civil war, when famine was at our
gates and Peel repealed the corn laws--then again politicians could
plead the excuse of necessity. In these and like crises the wisest men
and the bravest men are forced to recognise the logic of facts; and
necessity rather than prudence dictates the course of statesmanship. But
no such crisis has now arisen. England and Ireland were as safe under
the government of Lord Salisbury as under the government of Mr.
Gladstone--perhaps safer. No one except an extremely excited and very
rhetorical politician will venture to assert that, if Lord Salisbury
instead of Mr. Gladstone had last summer gained a majority of forty, any
man or woman throughout the United Kingdom would have trembled for the
safety of the country. The sky is far less dark than on that fearful day
eleven years back[111] when England stood aghast at the assassinations
of the Phoenix Park. Irish discontent is an immense evil, of which every
just man must deplore the existence; its removal would be the greatest
benefit which statesmanship could by any possibility confer upon
England. But the immediate dealing with it in a particular way is not a
necessity. Were the Home Rule Bill, and every Home Rule Bill, rejected
by Parliament, the United Kingdom would be as safe as it has been at any
time for the last ninety years and more.

In plain truth we have all of us forgotten the meaning of necessity.
Gladstonians have come honestly to confuse the needs of a party with the
necessities of the country. This is a delusion that at all times and in
all lands affects great political connections which, having once
rendered high services to the nation, have outlived the valid reasons
for their existence. The Republicans saved the United States from
disruption. Hence in 1888, when Secession was an historical memory, many
of the most to be respected among Americans believed that the rule of an
honest Democrat was a worse evil than the rule of a corrupt Republican.
Thousands of Frenchmen, amidst the moral bankruptcy of Republican
politicians, still hold that, because Republicans years ago saved France
from ruin, even reconciled Conservatives cannot in the year 1893 be
placed in office without danger to the commonwealth. So it is abroad; so
it has been in England. In 1760 the best and wisest of English statesmen
deemed it impossible that England should be rightly governed by any
politicians but the representatives of the Revolution Families. In 1829
honest citizens trembled at the thought of power passing into the hands
of the Whigs; for the Tories had ruled for nearly sixty years, and the
Tories had preserved England from revolution and invasion. So at this
moment to many well-meaning Liberals the long predominance of the
Liberal party makes the possibility of a Cabinet containing politicians
who may in any sense be called Tories seem a monstrous calamity, which
it is a necessity to avert. Vain to point out that Lord Salisbury and
Mr. Balfour are such Tories as Eldon would have called Jacobins and Lord
Melbourne Radicals, and that, they are allied with the best and most
trustworthy of living Liberal leaders. Their is no arguing with
sentiment; it is necessary to keep the Gladstonian Liberals in office,
and the constitution must be sacrificed in order that Lord Salisbury may
not resume the Premiership. But there is a deeper cause than all this
for our strange ideas of necessity. Habitual ease and unvarying
prosperity have for a moment lowered the national spirit. Englishmen
confuse inconveniences with dangers; they have forgotten what real peril
is; they cannot understand the calmness with which, not a century ago,
their fathers resisted at once insurrection in Ireland and the most
powerful foreign enemy who has ever challenged the power of England, and
this too at a time when the population of Great Britain was not above
nine millions and the people of Ireland numbered more than four
millions, when France was the leading military power of the world, and
Ireland might at any moment receive the aid of a French army led by one
of the best French generals. The men of 1798 or 1800 would mock at our
ideas of necessity. Ireland has not an eighth of the population of the
United Kingdom; our Home Rulers are not Ireland; they are a very
different thing--the Irish populace. Let us yield everything which ought
to be yielded to justice; let us obey the dictates of expediency, which
is only justice looked at from another side; let us concede much to
generosity; but in the name of common sense, of honesty, and of
manliness, let us hear no more of necessity. Once in an age necessity
may be the defence of statesmanship forced to confess its own blindness,
but it is far more often the plea of tyranny, of ambition, of cowardice,
or despair.

B. _No danger in Home Rule_. The arguments which are employed to show
that the policy of Home Rule and the new constitution which embodies it
involve no danger for England are in the main drawn from the
'Safeguards' or Restrictions contained in the Bill--from the alleged
precedent of Grattan's Constitution--from the success of Home Rule in
other parts of the world--and, generally, from the expediency of
trustfulness.

i. _The Safeguards_. The Restrictions on the power of the Irish
Parliament are, it is asserted, sufficient and more than sufficient to
reassure Unionists, and an intimation is sometimes added that, if
further security is wanted, further safeguards may be provided.

This ground of confidence may be briefly dismissed; its answer is in
effect supplied by the foregoing pages.

On the action of the Irish Executive the Restrictions place, and from
the nature of things can place, no restraint whatever, and yet both
England and the Irish Loyalists have far more reason to dread the abuse
of executive than of legislative authority. On the legal action of the
Irish Parliament the Restrictions do place a certain restraint, but the
Restrictions are, as already shown, not in reality enforceable. They are
for good purposes a nullity; they are effective, if at all, almost
wholly for evil; they exhibit the radical and fatal inconsistency of
Gladstonian policy. The policy of Home Rule is a policy of absolute and
unrestricted trust; the safeguards are based on distrust. There is
something to be said for generous confidence, and something also for
distrustful prudence; there is nothing to be said for ineffective
suspicion.

ii. _Grattan's Constitution_. From the asserted harmony between England
and Ireland from 1782 to 1800 under Grattan's Constitution, the
inference is drawn that there is no reason to fear discord between
England and Ireland under the Gladstonian constitution of 1893.

The fallacy underlying the appeal to this precedent has been, to use
words of Mr. Lecky, 'so frequently exposed that I can only wonder at its
repetition.'[112] Under Grattan's Constitution the Irish Executive was
appointed, not by the Irish Parliament, but by the English Ministry; the
Irish Parliament consisted solely of Protestants; it represented the
miscalled 'English garrison,' and was in sympathy with the governing
classes of England. With all this to promote harmony, the concord
between the governing powers in England and in Ireland was dubious. The
rejection of England's proposals as to trade, and the exaction of the
Renunciation Act, betray a condition of opinion which at any moment
might have produced open discord. When at last the parliamentary
independence of Ireland had led up to a savage rebellion, suppressed I
fear with savage severity, English statesmen knew that an independent
Irish Parliament threatened the existence of England. I may be allowed,
even by Gladstonians, to place the genius and patriotism of Pitt on at
least a level with the genius and patriotism of the present Premier. I
may be allowed to doubt whether Mr. Gladstone's studies, however
profound, in the history of Ireland, can, in 1893, render his
acquaintance with the circumstances and the dangers of 1800 equal to the
knowledge of the Minister who, in 1800, carried the Act of Union. And
Pitt then held that the Union with Ireland was necessary for the
preservation of England. If moreover Grattan's Constitution be a
precedent for our guidance, let us see to what the precedent points. The
leading principles or features of Grattan's Constitution are well known.
They are the absolute sovereignty of the Irish Parliament, and its
independence of and equality with the Parliament of Great Britain; the
renunciation by the British Parliament of any claim whatever to
legislate for Ireland, and of any jurisdiction on the part of any
British court to entertain appeals from Ireland; and, lastly, the
absence of all representation of Ireland in the Parliament at
Westminster. Each of these principles or features is denied or reversed
by our new Gladstonian constitution. The Irish Parliament is to be, not
a sovereign legislature, but a subordinate legislature created by
statute, and a legislature of such restricted and inferior authority as
to be unworthy of the name of a parliament. The Imperial Parliament,
with its vast majority of British members, asserts its absolute
supremacy in Ireland, and the right at its discretion to legislate for
Ireland on any matter whatever; in Ireland there is to be founded an
Imperial or British Court appointed by the Imperial Ministry, having
jurisdiction on all matters affecting Imperial rights, and the final
Court of Appeal from every tribunal in Ireland is to be the British
Privy Council. Add to this that Irish members are to sit in the
Parliament of Westminster as the 'outward and visible sign' of the
Imperial Parliament's supremacy. But if every principle of Grattan's
Constitution be contradicted by the Gladstonian constitution, if every
principle which Grattan detested is a principle which Mr. Gladstone
asserts, with what show of reason can the success, uncertain though it
be, of the Constitution of 1782 be pleaded as evidence of the probable
success of the Gladstonian constitution of 1893? That two arrangements
are unlike is to ordinary minds no proof that they will have similar
results; a parliamentary majority of forty-two may repeal the Act of
Union, but it cannot repeal the laws of logic.[113]

iii. _Success of Home Rule_. All over the world, we are told, Home Rule
has succeeded; there are, under the government of the British Crown, at
least twenty countries enjoying Home Rule, and their local independence
causes no inconvenience to the United Kingdom or to the British Empire.
It follows therefore that Home Rule in Ireland will be a success and
will in no way disturb the peace or prosperity of the United Kingdom.

The sole difficulty in meeting this argument is the extreme vagueness of
its principal term. The words 'Home Rule' are in their signification so
vague, at any rate as employed by Ministerialists, that they cover
governments of totally different descriptions. Hungary, Norway, a State
of the American Union, a Province of the Canadian Dominion, the Dominion
itself, Man, Jersey, and Guernsey, every English colony with
representative institutions, are each described, by one Gladstonian
reasoner or another, as happy and prosperous under Home Rule. But there
is no one who will deny that the dissimilarities between the governments
existing in each of the countries referred to are at least as striking
as are their similarities; that the contrast, for example, between the
relation of Hungary to the Austro-Hungarian Empire and the relation of
New York to the United States is at least as obvious as its likeness.
The analogy, moreover, between Home Rule in any of these countries and
Home Rule in Ireland is at best distant and shadowy.[114]

The crisis is too serious to permit us to waste words in examining the
curiosities of the Home Rule controversy. Of Hungary, and its relation
to the Empire of which it forms part, nothing at all will here be said.
There is nothing in that relation analogous to Irish Home Rule. Nor need
we trouble ourselves with the 'Home Rule' of Rhodes, of Samos, or of the
Lebanon. Of these and any other States, if such there be, which enjoy
'Home Rule' under the supremacy of the Sultan, all that need be said is
that it is satisfactory to learn on the authority of Mr. Gladstone that
any part whatever of the Turkish Empire is well governed and happy. If
any one can seriously suppose that the prosperity of Man and the Channel
Islands, which reap all the benefits and bear none of the burdens of
connection with Great Britain, and moreover have at no time been
discontented, affords any reason for supposing that the secular
miseries and discontent of Ireland will be cured by a system of
government totally different from that which prevails either in Man, or
Guernsey, or in Jersey, let him refer to these interesting islands.[115]
For myself I shall leave them out of account. Of the cordial relations
between Sweden and Norway we hear nothing; the goodwill generated by a
system of Home Rule is bringing these countries to the brink of civil
war.[116]

There are two analogous cases or precedents on which serious reasoners
rely in support of a policy of Home Rule for Ireland. The success of
federal government in other countries, and especially in the United
States, and the success of colonial independence throughout the British
Empire, are adduced as presumptions that Home Rule would knit together
Great Britain and Ireland, or, as the cant of the day goes, transform a
paper union into a union of hearts. If New York be loyal to the United
States, if New Zealand be loyal to the British Crown, why should not
Ireland, when endowed with local independence resembling the
independence of an American State or of a self-governing British colony,
be a loyal member of the United Kingdom?[117]

This is the suggested argument--let us consider its validity.

As to federalism.--All the conditions which make a federal constitution
work successfully in the United States, in Switzerland, and possibly in
Germany, are wanting in England and Ireland. No man till the last five
or six years has even suggested that Englishmen or Scotsmen desire a
federal government for its own sake. Whether Mr. Gladstone himself has
any wish to federalise the whole United Kingdom is at least open to
doubt. Where federalism has succeeded, it has succeeded as a means of
uniting separate communities into a nation; it has not been used as a
means of disuniting one State into separate nationalities. The United
States, it has been well said, is a nation under the form of a federal
government. Gladstonians apparently wish to bind together two, or shall
we say three or four, nations, or nationalities, under the reality of a
federation and the name of a United Kingdom. While all the powerful
countries of the world are increasing their strength by union, the
advocates of the new constitution pretend to increase the moral strength
of the United Kingdom by loosening the ties of its political unity. If
any one ask why federalism which has succeeded in America should not
succeed in the United Kingdom, the true answer is best suggested by
another question: Why would not the constitutional monarchy of England
suit the United States? The answer in each case is the same. The
circumstances and wants of the two countries are essentially different;
and if this be not a sufficient reply, the reflection is worth making
that in the three great Confederacies of the world unity has been
achieved, or enforced by armed conflict.

As to colonial independence.--The plain and decisive reason why the
loyalty of New Zealand to the Empire affords no presumption of the
loyalty under our new constitution of Ireland to the United Kingdom is
this: The whole condition of New Zealand is different from the condition
of Ireland, and our new constitution is not intended to give Ireland the
position of New Zealand. Thousands of miles separate New Zealand from
Great Britain. Ireland is separated from us by not much more than twelve
miles. New Zealand has never been hostile to England; her people are
loyal to the British Crown. Ireland, or part of the Irish people, has
been divided from England by a feud of centuries; it would be difficult
among Irish Nationalists to obtain even the show of loyalty to the
Crown. New Zealand is wealthy, and New Zealand pays not a single tax
into the Exchequer of the United Kingdom. Ireland is poor, and, if her
taxation is lightened by Home Rule, the tribute which will be paid to
England will be heavy, and far more galling than the taxes she now pays
in common with the rest of the United Kingdom. The new constitution,
again, is utterly unlike a colonial constitution. Its burdens would not
be tolerated by any one of our independent colonies. The rights it
gives, no less than the obligations it imposes, are foreign to our
colonial system. The presence of the Irish representation at Westminster
forbids all comparison between Ireland under Home Rule and New Zealand
under a system of colonial independence.

But the matter must be pressed further. Even were it possible to place
Ireland in the position either of an American State or Swiss Canton, or
of an independent colony, the arrangement would not meet the needs of
the United Kingdom. This is a point which has not as yet arrested
attention. For the safety of the United Kingdom it is absolutely
necessary that the authority of the Imperial Government, or, in other
words, the law of the land, should be enforced in Ireland in a sense in
which the law of the land is rarely enforced in federations, and in
which it is certainly not enforced by the Imperial Government in
self-governing colonies.

In federations the law of the land is nearly powerless when opposed to
the will of a particular State. President Jackson's reported dictum,
'John Marshall[118] has delivered his judgment, let him now enforce it
if he can,' and the fact that the judgment was never enforced,[119] are
things not to be forgotten. They are worth a thousand disquisitions on
the admirable working of federalism. But there is no need to rely on a
traditional story, which, however, is an embodiment of an undoubted
transaction. The plainest facts of American history all tell the same
tale. No Abolitionist could in 1850 without peril to his life have
preached abolition in South Carolina; difficult indeed was the
enforcement of the Fugitive Slave Law and small the practical respect
paid in Massachusetts to the doctrine of the Dred Scott Case. Unless all
reports are false, the Negro vote throughout the Southern States is at
this moment practically falsified, and little do the Constitutional
Amendments benefit a Negro in any case where his conduct offends
Southern principle or prejudice. For my present argument it matters
nothing whether the oppression of individuals or the defiance of law was
or was not, in all these cases, as it certainly was in some instances, a
violation to the supreme law of the land. If the law was violated then,
why should we expect Imperial law to be of more force in Ireland than
federal law in South Carolina, or in Massachusetts? If the rights of
individuals were not adequately protected by federal law against the
injustice of a particular State, then why expect that the provisions of
our new constitution, far less stringent as they are than the protective
provisions of the United States Constitution, should avail to protect
unpopular persons in Ireland against the legal tyranny of the Irish
Executive or the Irish Parliament?

Experience of federalism is not confined to the United States. The Swiss
Confederation is in Europe the most successful both of democratic and of
federal polities. The Swiss Executive exercises powers common to all
continental governments but of a description which no English Cabinet
could claim, and the Swiss Executive is made up of statesmen skilful
beyond measure in what may be called the diplomacy of federalism. Yet in
Switzerland, as in the United States, federal government means weak
government. Ticino is a small Canton, but from the days of Athenian
greatness small States have been the instructors of the world, and
Englishmen, hesitating over a political leap in the dark, would do well
to study the Ticinese revolution of September 11, 1890. The Radicals of
the Canton rose in insurrection, and deposed the lawful government by
violence; as Englishmen may remember, the contest though short involved
at least one murder. The Swiss Executive (called the Federal Council)
forthwith took steps to restore order and to reinstate the lawful
Cantonal government. Their own commissioner, a military officer, in
effect declined to put the overthrown government back in power. Order
was restored, but the law was never vindicated. A strange set of
negotiations, transactions, or intrigues took place. In the Federal
Assembly at Berne, the Conservatives, a minority, urged the rights of
the lawful government of Ticino. The Liberals defended or palliated the
revolutionists. On the whole the advantage seems to have rested with
the latter. A trial before a Federal Court took place, but the accused
were acquitted. No one, if I am rightly informed, was punished for an
act of manifest treason. It is even more noticeable that Professor
Hilty, a distinguished and respected Swiss publicist, vindicates or
palliates the admitted breach of law, in deference to the principle or
sentiment, which if true has wide application, that 'human nature is not
revolutionary, and that no revolution ever arises without a heavy share
of guilt (Mitschuld) on the part of the government against which the
revolution is directed.'[120] The instructiveness of this passage in
Swiss history as regards the working of our new constitution is obvious;
Englishmen should specially note the interconnection between lawlessness
in Ticino and the balance of parties at Berne; it is easy to foresee an
analogous connection between revolution, say in Dublin or Belfast, and
the balance of parties at Westminster. But this is not my immediate
point; my point is that the Federal Government at Berne cannot enforce
obedience to law in Ticino in the way in which Englishmen expect that
the Imperial Government shall, under any circumstances, enforce or cause
the law to be enforced in Ireland.

But Ireland, it will be said, is to occupy a position like that of a
self-governing colony. In British colonies the Imperial power and the
rule of law are respected; both therefore will be respected in Ireland.
The plain answer to this suggestion is that in a British self-governing
colony, no law is enforceable which is opposed to colonial sentiment and
which the colonial Ministry refuse to put into execution. One
well-ascertained fact is enough to dispose of a hundred platitudes about
Imperial supremacy and the loyal obedience of our colonies. Victoria is
as loyal to the Crown as any colony which England possesses, yet the
submission to law of the Victorian Government and people is not by any
means unlimited. Ten years ago three British subjects arrived at
Melbourne and were about to land. Popular sentiment, or in other words
the will of the mob, had decreed that they should not enter the colony.
The Victorian Premier (Mr. Service) announced in Parliament that their
landing should be hindered. The police, acting under the orders of the
Ministry, boarded the ship which brought the strangers, went near to
assaulting the captain, and forcibly prevented the hated travellers from
setting foot on shore. By arrangement between the Melbourne Government,
the captain, and the three men, who were by this time in terror of their
lives, the victims of lawlessness were carried back to England. That the
law had been grossly violated no one can really dispute. The violation
was the more serious because it excited no notice. No appeal was
apparently made to the Courts. The Governor--the representative of
Imperial power and Imperial justice--knew presumably what was going on,
yet he uttered not one word of remonstrance. The Agent-General for
Victoria, when at last a private person in England called attention to
the outrage at Melbourne, pleaded in effect the plea of necessity, and
described the act of tyranny, whereby British citizens were in a British
colony turned into outlaws, as 'an act of executive authority.' The
Imperial Government did I believe--what was perhaps the wisest thing it
could do--nothing. Imperial supremacy in the colonies was, as regards
the protection of unpopular individuals, admitted to be a farce. What,
however, rendered the three travellers unpopular? They were Irish
informers who had aided, unless I am mistaken, in the conviction of the
Phoenix Park murderers. Let us now in imagination conceive our new
constitution to have come into being, and transfer the transactions at
Melbourne in 1883 to Dublin in 1894. Will the Imperial supremacy which
is supposed to be so effective in the colonies be of any more worth in
Ireland than in Victoria?[121]

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