A Leap in the Dark by A.V. Dicey

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The four reflections at any rate which may be suggested by _A Leap in
the Dark_ are well worth the consideration of the loyal citizens of the
United Kingdom.

A.V. DICEY.

FOOTNOTES:

[1] Its technical title as given in the Bill is the Irish Government
Act, 1893.

[2] See _Annual Register_, 1893 (New Series), p. 180.

[3] See especially pp. 39, 40, 41-43 _post._

A LEAP IN THE DARK[4]

FOOTNOTES:

[4] My readers are earnestly recommended to study Mr. Cambray's _Irish
Affairs and the Home Rule Question_. It brings the history of the Home
Rule movement well up to date, and strengthens almost every argument
against Home Rule to be found in _A Leap in the Dark._ The notes in
square brackets are new.

CHAPTER I

OLD AND NEW CONSTITUTION

The Home Rule Bill[5] contains a New Constitution for the whole United
Kingdom.[6]

The Bill bears on its face that its object is 'to amend the provision
for the Government of Ireland'; it is entitled 'The Irish Government
Act, 1893'; it is in popular language known as the Home Rule Bill. But
all these descriptions are misleading. It is in truth a measure which
affects the government alike of England, of Scotland, and of Ireland.
It changes, to some extent the form, but to a far greater extent the
working, and the spirit of all our institutions. It is a bold attempt to
form a new constitution for the whole United Kingdom; it subverts the
very bases of the existing constitution of England.

The present constitution of the United Kingdom is marked and has long
been marked by two essential characteristics, the one positive and the
other negative.

The positive characteristic is the absolute and effective authority of
the Imperial Parliament throughout the length and breadth of the United
Kingdom.

To this characteristic Englishmen are so accustomed that they hardly
recognise its full importance. A government may make its power felt in
three different ways--by the action of the Executive, including under
that head all the agents of the Executive, such as the judiciary and the
armed forces--by legislation--and by the levying of taxes. Take any of
these tests of authority, and it will be found that the British
Parliament is not only theoretically, but actually and effectively,
supreme throughout the whole of Great Britain and Ireland. The Cabinet
is virtually appointed by the Houses of Parliament; the army, the
judges, the magistracy, all officials who throughout the country
exercise executive power in any form whatever are directly or indirectly
appointed by Parliament, and hold office subject to the will of
Parliament Of the legislative authority of Parliament as regards the
United Kingdom it is scarcely necessary to speak. Any law affecting the
United Kingdom not only lawfully may, but can in fact, be changed by the
Imperial Parliament. Of the unlimited legislative authority ascribed to,
and exercised by, Parliament in the United Kingdom the Home Rule Bill
itself is sufficient evidence; and the Gladstonian Ministry, at any
rate, see no reason why Parliament should not within the course of a few
weeks remodel the fundamental laws of the realm. The right to impose
taxes is historically the source of Parliamentary power, and in all
matters of taxation Parliament has absolute freedom of action from one
end of the United Kingdom to the other; whether the income tax is to be
lowered, raised, or abolished, whether some new duty, such as the cart
and wheel tax, shall be imposed, whether the United Kingdom shall
maintain free trade, or return to protection, how taxes shall be raised
and how they shall be spent--all matters in short connected with revenue
are throughout the United Kingdom determined and determinable in the
last resort by Parliament alone.

Hence, as things now stand, no kind of governmental action in any part
of Great Britain and Ireland escapes Parliamentary supervision. The
condition of the army, the management of the police, the misconduct of
a judge, the release of a criminal, the omission to arrest a defaulting
bankrupt, the pardon of a convicted dynamiter, the execution of a
murderer, the interference of the police with a public meeting, or the
neglect of the police to check a riot in London, in Skye, or in
Tipperary, any matter, great or small, with which the executive is
directly or indirectly concerned, is, if it takes place in any part of
the United Kingdom, subject to stringent and incessant Parliamentary
supervision, and may, at any moment, give rise to debates on which
depend the fate of ministries and parties. If there be such a thing as
supreme actual and effective authority, such authority is throughout the
whole of the United Kingdom exercised by the Imperial Parliament, not
occasionally and in theory, but every day and in the ordinary course of
affairs.

This exertion of actual and effective power by the Imperial Parliament
throughout the United Kingdom is a totally different thing from the
supremacy or sovereignty exercised by Parliament throughout the whole
British Empire. As a matter of legal theory Parliament has the right to
legislate for any part of the Crown's dominions. Parliament may lawfully
impose an income tax upon the inhabitants of New South Wales; it may
lawfully abolish the constitution of the Canadian Dominion, just as some
years ago it did actually abolish the ancient constitution of Jamaica.
But though Parliament does in fact exert a certain, or rather a very
uncertain, amount of power throughout the whole Empire, we all know that
the Imperial Parliament neither exercises, nor claims to exercise, in a
self-governing colony such as New Zealand,[7] that kind of effective
authority which Parliament exercises in the United Kingdom. The Cabinet
of New Zealand is not appointed at Westminster; the action of a New
Zealand Ministry as regards the affairs of New Zealand is not controlled
by the English Government. Not a pennyworth of taxation is imposed on
the inhabitants of New Zealand, or of any colony whatever, by the
Imperial Parliament. Even the imposition of customs, though it has an
important bearing on the interest of the Empire, is in a self-governing
colony determined by the colonial, and not by the British, Parliament.
It is the Parliament of New Zealand, and not the Parliament of England,
which governs New Zealand. The Imperial Parliament, though for Imperial
purposes it may retain an indefinite supremacy throughout the British
Empire, has, as regards self-governing colonies, renounced, for all
other than Imperial purposes, executive and legislative functions. To
labour this point may savour of pedantry. But the distinction insisted
upon, whilst often overlooked, is of extreme importance. We risk being
deceived by words. The Imperial Parliament is supreme in the United
Kingdom, it is also supreme in New Zealand. But the supremacy of the
Imperial Parliament is a misleading expression; it means one thing in
the United Kingdom, and another thing in New Zealand or in Canada. In
the United Kingdom it means the exercise of real, actual, effective and
absolute authority. In New Zealand it means little more than the claim
to regulate matters of a distinctly and exclusively Imperial character.
The distinction is vital. The essential feature of the English
constitution is the actual and direct government of the whole United
Kingdom by the Parliament at Westminster. No change could be more
fundamental than a change which, in England, Scotland, or Ireland,
reduced this actual authority to the ultimate or reserved sovereignty
exercised, or rather claimed, by Parliament in Canada or in New Zealand.

The negative characteristic of the English constitution is the absence
of federalism or of the federal spirit.

The spirit of institutions is as important as their form, and the spirit
of English Parliamentary government has always been a spirit of unity.

The fundamental conditions of federal government are well known. They
are first the existence of States such as the Cantons of Switzerland or
the States of Germany, which are capable of bearing in the eyes of their
inhabitants an impress of common nationality, and next the existence
among the inhabitants of the federalised country of a very peculiar
sentiment, which may be described as the desire for political union
without the desire for political unity.[8] This condition of opinion
leads to a division of powers between the federal or national government
and the States. Whatever concerns the nation as a whole is placed under
the control of the federal power.

All matters which are not primarily of common interest remain in the
hands of the States. Now each of these conditions upon which federalism
rests has, as a matter of history, been absolutely unknown to the people
of England. In uniting other countries to England they have
instinctively aimed at an incorporative not at a federal union. This
absence of the federal spirit is seen in two matters which may appear of
subordinate, but are in reality of primary, consequence. Every member of
Parliament has always stood on a perfect equality with his fellows; the
representatives of a county or of a borough, English members, Scottish
members, Irish members, have hitherto possessed precisely equal rights,
and have been subject to precisely the same duties. They have been sent
to Parliament by different places, but, when in Parliament, they have
not been the delegates of special localities; they have not been English
members, or Scottish members, or Irish members, they have been simply
members of Parliament; their acknowledged duty has been to consult for
the interest of the whole nation; it has not been their duty to
safeguard the interests of particular localities or countries. Hence
until quite recent years English parties have not been formed according
to sectional divisions. There has never been such a thing as an English
party or a Scottish party. Up to 1832 the Scottish members were almost
without exception Tories; since 1832 they have been for the most part
Liberals or Radicals; they have kept a sharp eye upon Scottish affairs,
but they have never formed a Scottish party. The same thing has, to a
great extent, held good of the Irish members. The notion of an Irish
party is a novelty, and in so far as it has existed is foreign to the
spirit of our institutions. Hence further, the Cabinet has been neither
in form nor in spirit a federal executive. No Premier has attempted to
constitute a Ministry in which a given proportion of Irishmen or
Scotchmen should balance a certain proportion of Englishmen. English
politicians have as yet hardly formed the conception of an English
party. Not a single Prime Minister has claimed the confidence of the
country on the ground that his colleagues were, or were not, English,
Scottish, or Irish. That a Premier should glory in his pure Scottish
descent is an innovation; it is an innovation ominous of revolution; it
betrays a spirit of disintegration. If at the moment it flatters
Scottish pride, Scotchmen and Irishmen would do well to recollect that
it is a certain presage of a time when some Englishman will rise to
power and obtain popular support on the ground of his staunch English
sympathies and of his unadulterated English blood.

Now place the new constitution side by side with the old. Assume, as I
do assume throughout this chapter, that our new Gladstonian policy works
in accordance with the intentions of its authors.

The new constitution abolishes in Ireland the actual and effective
control and authority of the Imperial Parliament.

The government of Ireland is under the Home Rule Bill[9] placed in the
hands of an executive authority, or, in plain terms, a Cabinet,
undoubtedly to be appointed by the Irish Legislature, in the same sense in
which an English Cabinet is appointed by the British Parliament, or a
New Zealand Cabinet is appointed by the Parliament of New Zealand.[10]
For the first time in the whole course of history the administration of
Irish affairs is placed in the hands of an Irish Ministry, in the
selection of which the Imperial Parliament has no hand or concern
whatever. Mr. McCarthy, Mr. Healy, Mr. Redmond, Mr. Davitt, any leader,
known or unknown, loyal or disloyal, who commands the confidence of the
Irish Legislature, or, as I will venture to term it, the Irish
Parliament,[11] will naturally become the Premier of Ireland, and,
together with his colleagues, will possess all the authority which
belongs to a Parliamentary Executive. On the action of this Irish
Cabinet the Bill places, with rare exceptions, either no restrictions at
all or restrictions which are only transitory.[12] Speaking generally,
we may lay down that, except as to the control of the army, if that be
an exception, the Irish Cabinet will, when the constitution gets into
full working order, occupy in Ireland the position now occupied by the
British Cabinet in regard to the whole United Kingdom. The appointment
of officials, the conduct of Irish affairs, all the ordinary functions
of government will, with certain exceptions meant for the most part to
protect the rights of the Imperial Parliament, be exercised by Irish
Ministers responsible to the Irish Parliament; and the British or
Imperial Parliament will, in the ordinary course of things, have no more
to do with the administration of affairs in Ireland than it has to do
with the administration of affairs in New Zealand. The Irish, not the
British, Cabinet will decide what are the steps to be taken for the
protection throughout Ireland of the rights of property or of personal
liberty; the Irish and not the English Cabinet will determine by what
means the payment of rent is to be enforced; the Irish and not the
English Cabinet will decide what persons are to be prosecuted for crime;
the Irish and not the English Cabinet will determine whether the means
for enforcing the punishment of crime are adequate, and whether
Ireland, or some part of Ireland, say Belfast, requires to be governed
by means of a Coercion Act; the Irish and not the English Cabinet will
decide with what severity wrong-doers are to be punished, and whether,
and under what circumstances, convicted criminals deserve either pardon
or mitigation of punishment.

It is patent that under the new constitution the Irish Parliament and,
under ordinary circumstances, the Irish Parliament alone will legislate
for Ireland. For the Irish Parliament can, subject to certain
Restrictions,[13] pass any law whatever 'for the peace, order and good
government of Ireland, in respect of matters exclusively relating to
Ireland or some part thereof'[14]; and, subject to the same
Restrictions, may repeal any law which, before the Home Rule Bill
becomes law, is in force in Ireland. Under the new constitution the
Irish Parliament and not the Imperial Parliament will, it is clear, as a
rule legislate for Ireland. Under the new constitution the Irish
Parliament may enact a Coercion Act, applying say to Ulster, or may
repeal the existing Crimes Act. It may abolish trial by jury[15]
altogether, put any restraints it sees fit on the liberty of the press,
or introduce a system of administrative law like that which exists in
France, but is totally foreign to English notions of jurisprudence.

Under the new constitution, again, the financial relations of Great
Britain and Ireland are made the subject of an elaborate arrangement
which may fairly be called a contract[16]. Ireland takes over certain
charges[17], and speaking very generally, whilst all the duties of
customs levied in Ireland are collected by and paid over to the
Exchequer of the United Kingdom, as Ireland's contribution to Imperial
expenditure, all the other taxes are, as a general rule, paid over to
the Irish Exchequer. The justice or the policy of these financial
arrangements is for my present purpose immaterial. All that need be
observed is that the ordinary taxation of Ireland passes from the hands
of the Imperial Parliament into the hands of the Irish Parliament, and
that under the new constitution this arrangement is a settlement which
the Imperial Parliament is morally bound to respect for a period of at
least fifteen years[18].

In Ireland therefore the new constitution abolishes the effective
exercise of authority by the Imperial Parliament in matters of
administration, in matters of legislation, in matters of finance; every
concern which affects the daily life of Irishmen will be under the
control of the Irish Cabinet and the Irish Parliament. The relation of
the Imperial Parliament towards Ireland will not be the relation which
it now occupies towards the whole United Kingdom, and which under the
new constitution it will still occupy towards Great Britain. The
Imperial Parliament, it is true, retains considerable reserved powers;
what are the effect and nature of these powers shall be considered in
its due place. The matter upon which I now insist is simply this: the
new constitution does in any case transfer the effective government of
Ireland from the Imperial Parliament to the Irish Parliament. The
authority reserved to the Imperial Parliament may be termed supremacy,
or sovereignty, or may be described by any other fine-sounding name
which we are pleased to use, but the fact remains unaltered that, as
long as the new constitution stands and works, the Imperial Parliament
will not govern Ireland in the sense in which it governs England and
Scotland, and that such authority as it exerts in Ireland will be
analogous not to the power which it now exercises there, but to the
influence which it possesses in Canada or in New Zealand.[19]

The new constitution is at bottom a federalist or semi-federalist
constitution; it introduces into English institutions many of the forms
of federalism and still more of its spirit.

The Parliament sitting at Westminster becomes for the first time a
Federal Congress.

Of its members, 567 will represent Great Britain; 80 will represent
Ireland. The exact numbers are for the present purpose insignificant.
The serious matter is that the Imperial Parliament undergoes an
essential change of character. The British members will have, or are
intended to have, no concern with the government of Ireland. The Irish
members ought to have nothing to do with the government of Great
Britain. On Imperial subjects the Imperial Parliament, or, to call it by
its proper name, the Federal Congress, votes as a whole; on Irish
subjects it does not vote at all; on British topics its British members
only vote. The British and the Irish members, in short, alike represent,
though in a very clumsy fashion, the States of a Confederacy. Though the
fact be artfully concealed, we have under the new constitution already,
in germ at least, a British State and an Irish State, a British
Parliament and an Irish Parliament, and a third body consisting of these
two Parliaments, which is the Imperial or Federal Parliament.[20]

The different features of federalism make their appearance though under
strange forms.

The constitution imposes Restrictions on the powers of the State
Governments and of the Federal Government.

This appears unmistakably in the limitations placed upon the authority
of the Irish Parliament.

These Restrictions, be they wise or unwise, politic or impolitic, are
perfectly in keeping with the constitutional arrangements of a Federal
Government, but are absolutely unknown to the theory and practice of
English parliamentary government.

The powers of the Imperial Parliament, it may be said, are under the new
constitution subject to no limitations. In words this assertion is true,
in substance it is false. If the constitution works properly the
Imperial Parliament will clearly be subject to the terms of the
Government of Ireland Act, 1893, or, in other words, of the Federal
Constitution. This subjection is not absolute; it is moral, not legal,
still it exists. A breach of the federal compact will be no light
matter.

The constitution again, as one would expect under a federal scheme,
provides for the enforcement of the compact.

In the case of Ireland this is manifest. The royal veto,[21] the power
of the Courts, and ultimately of the Privy Council, to pronounce on the
constitutionality of any Irish Act, and treat it as void if it is in
excess of the authority bestowed upon the Irish legislature, the
provisions for the legal determination of constitutional questions,[22]
the arrangements as to the payment of the Irish customs into the
Imperial Exchequer, the special and very anomalous position of the
Exchequer Judges, are all attempts, whatever be their worth, to restrain
the Irish legislature and government, or in effect the Irish people,
from the undue assertion of State rights.

Restraints again are placed on the unconstitutional action of the
Imperial or Federal Parliament. They are less obvious, but at least as
real and effectual as the safeguards against the breach of the
constitution by the Irish government or legislature. They are all summed
up in the presence of the Irish representatives at Westminster. The only
legitimate reason, if legitimate reason there be, for their presence is
the guardianship of Irish rights under the constitution. It is for them
to see that these rights are held sacred. No diminution thereof can take
place without either the assent of the Irish members or else the
existence of such a majority in the Parliament at Westminster as may
override the protests of Ireland.[23] No doubt this is not an absolute
security. But whoever considers the habits of English political life
will conclude that, except in the event of the Imperial Parliament being
resolved to suspend or destroy the constitution, there exists the
highest improbability that any inroad should be made upon the privileges
conferred under the new constitution upon Ireland. The security, though
not absolute, is a good deal better than any safeguard given by the Bill
that the State rights of Great Britain shall be duly respected by the
representatives from Ireland. Assume, however, that the constitution
works properly, and that all parties respect the spirit of its
provisions. The result is that the new constitution forms a fundamental
law, fixing the respective rights of Ireland, of Great Britain, of the
Irish Parliament, and of the Imperial Parliament.[24]

The federal arrangements which, utterly unknown as they are to our
institutions, form the foundation of the new constitution, are as
nothing compared with the recognition and fostering of the federal
spirit.

Great Britain and Ireland constitute for the first time in history a
confederation. The difference or opposition of their interests receives
legislative acknowledgment: each country is to possess in reality,
though not in name, State rights; each must rely upon the constitution
for the protection of these rights; each may suffer from the
encroachments of the Imperial or central power. Ireland may complain
that the Imperial Parliament by legislation, or the Privy Council by
judicial interpretation, encroaches on her guaranteed rights. Great
Britain may complain either that Irish members intermeddle in British
affairs, and thus British rights are violated, or that the Privy Council
so interprets the constitution that the prerogatives of the Central
Government (which be it remembered must in practice be identified with
the power of England) are unduly diminished. To imagine such complaints
is not to assume that the constitution works badly. They are of
necessity inherent in the federal system. There exists no federal
government throughout the world where such complaints do not arise, and
where they do not at times give rise to heart-burnings. It is well
indeed, judging from the lessons of history, if they do not produce
bitter conflicts, or even civil war. Let us take, however, the most
sanguine view possible. Let us grant that both in England and in Ireland
every minister, every legislator, every judge, is inspired with a spirit
of perfect disinterestedness and absolute fairness. This concession,
immense though it be, does not exclude vital differences of opinion. In
our new confederacy, as in every other, there will arise the contest
between State rights and federal rights, between the authority of the
Central Government and of the State Government. In any case, a whole
class of new difficulties and questions of a totally new description
will make their appearance in the field of English politics, and call
for the exercise on the part both of English and of Irish statesmen of
extraordinary wisdom and extraordinary self-control. The new
constitution in short, in virtue of its federal tendencies, will
revolutionise the public life of the United Kingdom.

From whatever side the matter be considered we arrive at the same
result. The Home Rule Bill is a new constitution; it subverts the bases
of the English constitution as we now know it, for it destroys
throughout Ireland the effective authority of the Imperial Parliament,
and turns the United Kingdom into a federal government of a new and
untried form.

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