A Leap in the Dark by A.V. Dicey

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The change may be necessary or needless, wise or unwise. The first and
most pressing necessity of the moment is that every elector throughout
the United Kingdom should, realise the immense import of the innovation.
It is a revolution far more searching than would be the abolition of the
House of Lords or the transformation of our constitutional monarchy into
a presidential republic.

The next point to which the attention of every man throughout the land
should be directed is, that the new constitution offered to us for
acceptance is unknown to any other civilised country. Parts of it are
borrowed from the United States; some of its provisions are imported
from the British colonies, whilst others are apparently the inventions
of the unknown and irresponsible Abbe Sieyes, who is the ingenious
constitution-maker of the Cabinet. But the new polity as a whole
resembles in its essence neither the American Commonwealth nor the
Canadian Dominion, nor the Government either of New Zealand or of any
other self-governing colony. It is an attempt--its admirers may think an
original and ingenious attempt--to combine the sovereignty of an
Imperial Parliament with the elaborate limitation and distribution of
powers which distinguish federal government. The whole thing is an
experiment and an experiment without precedent. Its novelty is not its
necessary condemnation, but neither on the other hand is innovation of
necessity the same thing as reform. The institutions of an ancient realm
are not exactly the _corpus vile_ on which theorists hard pressed by the
practical difficulties of the political situation can be allowed to try
unlimited experiments. We are bound to scrutinise with care every
provision of this brand-new polity. We are bound to consider what will
be their effect according to the known laws of human nature and under
the actual circumstances of the time. It is vain to tell us that many of
our institutions remain untouched. The introduction of new elements into
an old political system may revolutionise the whole; the addition of new
cloth to an old garment may, we all know, rend the whole asunder. There
is no need for panic; there is the utmost need for prudence.

FOOTNOTES:

[5] References made in this treatise to the Home Rule Bill are, unless
otherwise stated, made to the Bill as ordered to be printed by the House
of Commons, February 17, 1893. _A Leap in the Dark_ was published months
before the Bill was sent up as amended to the House of Lords.

[6] This is true of both of Mr. Gladstone's Home Rule Bills, and must
necessarily be true of any Bill which satisfies even for a time the
wishes of Home Rulers.

[7] I have substituted New Zealand for Victoria as the example of a
typical self-governing colony; the position of Victoria has since 1900
been complicated by the country having become a State of the Australian
Commonwealth or Confederation.

[8] See Dicey, _Law of Constitution_ (7th ed.), ch. iii. pp. 136-140.
Compare Mill, _Rep. Government_, ch. xvii.

[9] For the sake of convenience I throughout this treatise refer to the
'Bill to amend the provision for the government of Ireland' under its
popular name of the Home Rule Bill, 1893, or simply the Bill. See the
Bill in Appendix.

[10] Bill, clause 5.

[11] (The constitutional history of Victoria affords a curious
illustration of what will certainly happen in Ireland.) In Victoria the
Legislature, though not termed a Parliament in the Constitution Act, 18
& 19 Vict, c. 54, has assumed, under a Victorian Act, the title of the
Parliament of Victoria. See Jenks, _Government of Victoria_, p. 236. Who
can doubt that the Irish Legislature will, by an Irish Act, give itself
the title of the Parliament of Ireland? I have therefore throughout
these pages called the Irish Legislature the Irish Parliament. Few
things are more absurd and more noteworthy than the deliberate refusal
of English Gladstonians to call the Irish Parliament by its right name.
They are willing to create an Irish Parliament; they are not willing to
admit that they have created it. See debates of May 9, in _The Times_,
May 10, 1893.

[12] See Bill, clauses 19, 27, 28, 30.

[13] Bill, clauses 3, 4.

[14] Bill, clause 2.

[15] This will perhaps be disputed. Trial by jury, it will be said, is
saved by the expression 'due process of law,' in clause 4, sub-clause
(5). But this contention is, in my judgment, unfounded, and its validity
must in any case be held open to extreme doubt.

[16] See Bill, clauses 10-19, and note especially clause 12, sub-clause
(I).

[17] _Ibid_, clauses 14-16.

[18] _Ibid_, clause 12, sub-clause (3).

[19] I am aware that to this statement moderate Gladstonians may take
exception. What may be the effect of the preamble which reserves the
supreme authority of Parliament or of Bill, clause 33, which recognises
the right of the Imperial Parliament to legislate for Ireland will be
most conveniently considered in the next chapter. In this chapter, be it
noted, I am concerned only with the constitution as it is intended to
work, and most Gladstonians will admit that as long as the Government of
Ireland, including in that expression both the Cabinet and the
Parliament, keeps within the terms of the Act, it is not intended that
the British Cabinet or Parliament shall, except in certain excepted
cases, intervene in Irish affairs.

[20] All the provisions which under clause 9 of the Home Rule Bill,
1893, in its earliest form, were intended to restrain Irish Peers, or
members representing Irish constituencies, from deliberating or voting
on any Bill or motion the operation of which should be confined to Great
Britain, were swept away by the Gladstonian majority before the Home
Rule Bill was sent up to the House of Lords. The unfairness of giving to
Ireland a Parliament intended to legislate on all, or nearly all, Irish
affairs, and at the same time retaining eighty Irish members at
Westminster with full power to legislate on all English and Scottish
affairs, secured in 1895 the enthusiastic approval by the British
electorate of the rejection of the Home Rule Bill of 1893 by the House
of Lords.

[21] See Bill, clause 5 (1).

[22] Bill, clauses 22, 23.

[23] 'The Imperial Parliament was supreme, but he held the passing of
the Home Rule Bill, reserving certain subjects to the Imperial
Parliament and committing others to the Parliament of Ireland, as
amounting to a compact which would be observed by men of common sense
that there would be no capricious or vexatious interference by this
Parliament with an action within the appointed sphere of the Parliament
of Ireland. If such interference were attempted, the presence in this
Parliament of eighty Irish members--a number which had been found to be
sufficient to initiate an Irish constitution--would be found sufficient
to protect an Irish constitution when it was given.'--Mr. Sexton, Feb.
13, 1893, _Times Parliamentary Debates,_ p. 318.

[24] For evidence that the power of the Imperial Parliament is intended
under the new constitution to be subjected to at any rate a moral limit,
the reader should note particularly the terms of the Home Rule Bill,
clause 12, sub-clause (3).

CHAPTER II

THE NEW CONSTITUTION

A critic of the new constitution, intent on ascertaining how it affects
the relation of Great Britain and Ireland, will do well to divert his
attention from the numerous details of the Home Rule Bill, important as
many of them are,[25] and fix his mind almost exclusively upon the four
leading features of the measure.

These are:--

_First_. The supremacy of the Imperial Parliament.

_Secondly_. The retention of the Irish members in the Parliament
at Westminster.

_Thirdly_. The powers of the Irish Government, in which term is
here included both the Irish Executive and the Irish Parliament.

_Fourthly_. The Restrictions (popularly known as the safeguards)
and the obligations imposed upon the Irish Government.

These features are primary and essential; everything else, however
important in itself, is subsidiary and accidental.

A. _The Supremacy of the Imperial Parliament_[26]

The Home Rule Bill asserts in its preamble the inexpediency of
'impairing or restricting the supreme authority of Parliament'; and in
clause 33, apparently[27] assumes the right of the Imperial Parliament
after the passing of the Home Rule Bill to enact for Ireland laws which
cannot be repealed by the Irish Parliament.

The new constitution therefore maintains the supremacy of the Imperial
Parliament.

What, however, is the true meaning of this 'supreme authority,'
'supremacy,' or 'sovereignty,' if you like, of the Imperial Parliament?

The term, as already pointed out,[28] is distinctly ambiguous, and
unless this ambiguity is cleared up, the effect of the Home Rule Bill,
and the nature of our new constitution, will never be understood.

The supremacy of the Imperial Parliament may mean the right and power of
Parliament to govern Ireland in the same sense in which it now governs
England, that is, to exercise effective control over the whole
administration of affairs in Ireland, and for this purpose, through the
action of the English Government, or, when necessary, by legislation, to
direct, supervise and control the acts of every authority in Ireland,
including the Irish Executive and the Irish Legislature. If this were
the meaning of the expression, the Imperial Parliament would, after the
passing of the Home Rule Bill, as before, be as truly supreme in Ireland
as in England, in Scotland, in the Isle of Man, or in Jersey. The Irish
Executive and the Irish Parliament would, of course, be bodies
possessing large--and it might be very dangerous--delegated powers, but
they would stand in the same relation to the Imperial Parliament as does
the London County Council, which also possesses large delegated powers,
which administers the affairs of a population as large as that of
Scotland and which, very possibly, may receive from Parliament as time
goes on larger and more extended authority than the Council now
possesses. This is the sense which many Gladstonians, and some
Unionists, attribute to the term 'supremacy of Parliament.' It is not
the sense in which the expression 'supreme authority of Parliament' is
used in the Home Rule Bill.

The supremacy of Parliament may bear quite another sense; it may mean
that Parliament, whilst completely giving up the management of Irish
affairs (subject of course to the Restrictions contained in the Home
Rule Bill) to the Irish Executive and the Irish Legislature, retains in
Ireland, as elsewhere throughout the Empire, reserved sovereignty, or
the theoretical right (which exceptionally though rarely may be put into
practice) of passing laws for Ireland and of course, among other laws,
an Act modifying or repealing the terms of the Home Rule Bill itself. If
this is the meaning of the expression 'supreme authority of Parliament,'
the Imperial Parliament will, after the passing of the Home Rule Bill,
stand in substance in the relation to Ireland which Parliament occupies
towards any important self-governing colony, such as is the Canadian
Dominion or New Zealand. The Irish Executive and the Irish Parliament
will on this view constitute the real substantial government of Ireland,
just as the Ministry and the Parliament of New Zealand constitute the
real and substantial government of New Zealand. No doubt the Imperial
Parliament will retain the theoretical right to legislate for Ireland,
_e.g._ to pass an Irish Coercion Act, just as Parliament retains the
theoretical right to legislate for New Zealand or Canada. So the
Imperial Parliament has the legal right to repeal or override any law
passed by the New Zealand Parliament, to tax the inhabitants of New
Zealand, or finally, by the repeal of the New Zealand Constitution Act,
1852, 15 & 16 Vict. c. 72, to abolish the constitution of New Zealand
altogether. But these things Parliament will not, and to speak truly
cannot, do in New Zealand. The inhabitants of New Zealand possess as
regards their internal affairs for practical purposes complete
independence. They are governed from Wellington, they are not governed
from Westminster. If in short the supremacy of Parliament means under
the Home Rule Bill in Ireland what it means under 15 & 16 Vict. c. 72 in
New Zealand, the inhabitants of Ireland will, when the Home Rule Bill
passes into law, be governed from Dublin, they will not be governed from
Westminster. Every Irish Home Ruler, be he Parnellite or
Anti-Parnellite,[29] believes that the supremacy of Parliament is
intended to mean in Ireland what it means in New Zealand, and the Irish
Home Rulers are right. Any one will see that this is so who reflects on
the meaning of the policy of Home Rule, who studies the authoritative
utterances of Gladstonian leaders, such as Mr. Gladstone[30] himself,
Mr. Asquith,[31] or Mr. Bryce.[32] Gladstonian statesmen wrap up their
meaning in vague generalities; they insist, and in one sense with truth,
that the sovereignty of Parliament is reserved. They do not wish to
alarm their English followers. It is possible that they conceal even
from themselves how completely the Imperial Ministry and Parliament
surrender the practical government of Ireland into the hands of the
Irish Parliament and its leaders. But for all this, their own language
and the Bill itself prove that the supreme authority of Parliament is
under the new constitution to be taken in its limited, and what for the
sake of distinction we may call its 'colonial' sense. This is proved, if
evidence were wanting, by the provision[33] that after fifteen years from
the time when the Bill passes into law the financial relations between
England and Ireland may be revised in pursuance of an Address to the
Crown from the House of Commons or from the Irish legislative assembly.
If the Imperial Parliament retains an effective or practically unlimited
supremacy, the provision is futile and needless. What necessity is there
for enacting that a sovereign Parliament, which institutes, may alter a
scheme of taxation? But the provision is intelligible enough on one
supposition, and on one supposition only. It is both intelligible and in
place if Parliament gives up the real right of governing Ireland and
occupies towards what is now a part of the United Kingdom the position,
or something very like the position, which Parliament occupies towards a
self-governing colony. It then embodies a compact between England and
Ireland, and institutes a regular method for revising their financial
relations. But this very compact proves that as regards Ireland the
Imperial Parliament, if it reserves to itself ultimate sovereignty, has
for practical purposes surrendered the reality of control.

There is no need to assert that this supremacy of the Imperial
Parliament means nothing. The assertion would not be true. The
reservation of sovereign authority means something, but it does not mean
much. It does not mean the power or the right to govern Ireland; it
means at most the legal and moral right to modify, or put an end to, the
new constitution if ever it works badly.

The power, indeed, to abolish the constitution can neither be given nor
taken away by Acts of Parliament, by the declarations of English
statesmen, or the concessions of Irish leaders, whether authorised or
not to pledge the Irish people. It is given to Great Britain, not by
enactments, but by nature; it arises from the inherent capacity of a
strong, a flourishing, a populous, and a wealthy country to control or
coerce a neighbouring island which is poor, divided, and weak.[34] This
natural supremacy will, if the interests of Great Britain require it, be
enforced by armies, by ironclads, by blockades, by hostile tariffs, by
all the means through which national predominance can make itself felt.
All reference to superior power is, in controversies between citizens,
hateful to every man endowed with a sense of humanity or of justice. But
in serious discussions facts must be faced, and if, for the sake of
argument, I contrast, much against my will, the power of Great Britain
with the weakness of Ireland, let it be remembered that the conception
of a rivalry or conflict is forced upon Unionists by the mere proposal
of Home Rule. As long as we remain a United Kingdom, there is no more
need to think even of hypothetical or argumentative opposition between
the resources or interest of England and of Ireland than there is to
consider what in case of a contest may be the relative force of London
and of the Orkneys.

What, then, the new constitution secures is not the power, but the legal
right to abolish the new constitution. It is a right to carry through a
fundamental change by lawful means. The Bill legalises revolution. This
is well, for it is desirable that in a civilised State every change of
institutions should be effected by constitutional methods. But should
the circumstances ever arise under which Great Britain is resolved, in
spite of the wishes of the Irish people or a large portion thereof, to
abolish Home Rule and exercise the right of reserved sovereignty, there
is no reason to expect that Irishmen who oppose British policy will
admit that her use of sovereign power is morally justifiable. By force,
or the threat of force, the controversy will, we must expect, in the
last instance, be decided. However this may be, we must now realise what
the supremacy of Parliament, at any rate to the Irish leaders who accept
it, really means. It means nothing but the right of the Imperial
Parliament of its own authority to repeal the Home Rule Bill and destroy
the new constitution. The right may be worth having. But it is not the
right to govern Ireland or to control the Irish Government; it is not a
means of government at all: it is a method of constitutional revolution,
or reaction.

Some critic will object that this supremacy of Parliament means to him
a good deal more than the mere right to abolish the constitution. So be
it. Let the objector then tell us in precise language what it does mean.
If his reply is that the term is ambiguous, that its meaning must be
construed in accordance with events, and may, according to
circumstances, be restricted or extended, then he suggests that
Parliamentary supremacy is not only an empty right, but an urgent peril.
Nothing can be more dangerous than a compact between England and Ireland
which the contracting parties construe from the very beginning in
different senses. If by asserting the supreme authority of Parliament
English statesmen mean that Parliament reserves the right to supervise
and control the government of Ireland, whilst Irishmen understand that
Parliament retains nothing more than such a kind of supremacy or
sovereignty as it asserts, rather than exercises, in New Zealand, then
we are entering into a doubtful contract which lays the sure basis of a
quarrel. We are deliberately preparing the ground for disappointment,
for imputations of bad faith, for recriminations, for bitter animosity,
it may be for civil war. If there be, as is certainly the case, a fair
doubt as to what is meant by the supremacy of Parliament, let the doubt
be cleared up. This is required by the dictates both of expediency and
of honour. Meanwhile we may assume that the supremacy of Parliament, or
the 'supreme authority of Parliament,' means in substance the kind of
sovereignty which Parliament exercises, or claims to exercise, in every
part of the British Empire.

For the maintenance of such supremacy, be it valuable or be it
worthless, Great Britain pays a heavy price. For the sake of 'an
outward and visible sign of Imperial supremacy' we retain eighty Irish
members in the Imperial Parliament.[35]

B. _The Retention of the Irish Members in the Imperial Parliament_

This is now[36] an essential, or at least a most important part of the
ministerial policy for Ireland, yet it is a proposal which even its
advocates must find difficult of defence. In 1886 every Gladstonian
leader told us that it was desirable, politic, and just to exclude Irish
members from the Parliament at Westminster; this exclusion was pressed
upon England (plausibly enough) as a main advantage to be derived from
the concession of Home Rule to Ireland. In 1893 every Gladstonian leader
tells us that it is desirable, politic, and just to retain the Irish
members at Westminster, and their presence is, for some reason not easy
to explain, treated as removing every objection to the concession of
Home Rule to Ireland. This astounding variation of opinion in the
doctors of the State savours of empiricism, not to say quackery. A
surgeon who tells a patient that he will not live unless his leg is
amputated may be right, and may be worthy of trust; another surgeon who
asserts that amputation is unnecessary may be right, and worthy of
trust. But the surgeon who one moment insists that amputation is
necessary to the preservation of his patient's life, and the next moment
that it is unnecessary and may be fatal, is not the kind of adviser who
inspires confidence in his wisdom.

Let the ingenuity of Gladstonians reconcile, as best it can, the
doctrine of 1886 with the doctrine of 1893. To a man of sense who weighs
the matter without reference to considerations of party, one thing will
soon become apparent: the retention at Westminster of eighty, or indeed
of any Irish members at all, means under a scheme of Home Rule the ruin
of Ireland and the weakness of England.

As to Ireland.--The presence of Irish members at Westminster robs
Ireland of the one advantage which Home Rule might by any possibility
confer upon that country.

Any man in order to see that this is so has only to consider, first,
what may under favourable circumstances be the benefit of Home Rule to
Ireland, and next what is the natural result of summoning Irish members
to the Parliament at Westminster.

The best conceivable result of Home Rule is that it may detach Irishmen
from interest in English politics, and induce the most respected and
respectable men in Ireland to take matters into their own hands and
manage for themselves all strictly Irish affairs. For the last twenty
years, at least, Ireland has been represented, or misrepresented, by
eighty and more politicians, nominated in the main by Mr. Parnell. No
one supposes for a moment that the Nationalist leaders who appeared
before and were condemned by the Special Commission are fair samples of
the Irish people. They are, take them at their best, reckless agitators.
They were chosen by their patron, Mr. Parnell, not on account of their
worth or talent, but because they were apt instruments for carrying out
a policy of parliamentary intrigue, reinforced by a system of lawless
oppression.[37] These men are the product of a revolutionary era; they
no more represent the virtues and the genius of the Irish people than
the demagogues or fanatics of the Jacobin Club represented the genius
and the virtues of the French nation. We all know that Ireland abounds
in citizens of a very different stamp. She has never lacked among her
sons, and does not lack now, men of virtue, of vigour, and of genius.
Throughout the length and breadth of the country you will find hundreds
of men of merit--landlords whose lives have been honourable to
themselves, and a blessing to their tenants; merchants as honest and
successful as any in England or in Scotland; small landowners and tenant
farmers who have paid their rent and paid their way, who have cultivated
their land, who have never insulted or boycotted their neighbours, and
have never been driven by intimidation into meanness and fraud. Add to
these lawyers, thinkers, writers, and scholars, who rival or excel the
best representatives of their class in other parts of the United
Kingdom. These good men and true are not peculiar to any one creed or
party; they are not confined to any one province, or to any one class;
they are scattered through every part of the land; they are the true
backbone of Ireland; they have saved her from utter ruin; they may still
by their energy raise her to prosperity. But they have been thrust out
of politics by the talkers, the adventurers, the conspirators. It is
possible that if Home Rule compels Irishmen to turn their whole minds
to Irish affairs, the so-called representatives who misrepresent their
country may be dismissed from the world of politics, and the Parliament
at Dublin be filled with members who, whether they come from the North
or from the South, whether Unionists or Home Rulers, whether Roman
Catholics or Protestants, whether landowners, tenant farmers, ministers
of religion, merchants, or tradesmen, represent the real worth and
strength of the country. If this should happen, Home Rule would still
entail great evils on the whole United Kingdom. But even zealous
Unionists might hope that for these evils Ireland at least will obtain
some compensation. This hope, if the Irish members are retained at
Westminster, will never be fulfilled.

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