A Leap in the Dark by A.V. Dicey

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One check, indeed, is placed upon the power of the Irish Cabinet. The
military forces of the Crown, and the Royal Irish Constabulary and
Dublin Metropolitan Police (as long as they exist[62]), are subject to
the control of the Imperial or English Ministry.[63] The result is that
the English Cabinet will have the means of using force in Ireland for
the maintenance of order, for the execution of the law, or for the
maintenance of the authority of the Imperial Parliament. But this
advantage is after all purchased at the price of placing the country
under the rule of something very like two Executives. If the policy of
the Irish Cabinet, _e.g._ as to suppressing a riot at Dublin or Belfast,
should differ from the policy of the English Cabinet, the ordinary
police may be called into action whilst the army or the royal
constabulary stand by inactive, or the army may disperse a meeting which
the Irish Ministry hold to be a lawful assembly.

II. _The Irish Parliament._ The authority of the Irish Parliament,
whilst acting within the limits of the constitution, is extremely
wide.[64]

The Parliament appoints the Irish Government of the day; it will
determine whether Mr. M'Carthy or Mr. Redmond, Mr. Healy or Mr. Davitt,
directs the Irish Administration. In this matter the British Government
will have no voice. The English Ministry are under the new constitution
expected in many ways to co-operate with the Irish Ministry, yet it is
quite conceivable that the Ministers of the Crown at Dublin may be men
whose whole ideas of expediency, of policy, of political morality, may
be opposed to the ideas of the Ministers of the Crown at Westminster.

The Irish Parliament, again, even if every Restriction on its powers
inserted in the Home Rule Bill should pass into law, will be found to
have ample scope for legislative action.[65]

It can repeal[66] any Act affecting Ireland which was enacted before the
passing of the Home Rule Bill. Thus it can do away with the right to the
writ of _habeas corpus_; it can abolish the whole system of trial by
jury; it can by wide rules as to the change of venue expose any
inhabitant of Belfast, charged with any offence against the Irish
Government, to the certainty of being tried in Dublin or in Cork. If an
Irish law cannot touch the law of treason or of treason-felony, the
leaders of the Irish Parliament may easily invent new offences not
called by these names, and the Parliament may impose severe penalties on
any one who attempts by act or by speech to bring the Irish Government
into contempt. A new law of sacrilege may be passed which would make
criticism of the Irish priesthood, or attacks on the Roman Catholic
religion, or the public advocacy of Protestantism, practically
impossible. The Irish House of Commons may take the decision of election
petitions into its own hands, and members nominated by the priests may
determine the proper limits of spiritual influence. Thus the party
dominant at Dublin can, if they see fit, abolish all freedom of
election; nor is this all that the Irish Parliament can accomplish in
the way of ensuring the supremacy of an Irish party. After six years
from the passing of the Home Rule Bill--let us say in the year 1900--the
Irish Parliament can alter the qualification of the electors and the
distribution of the members among the constituencies. Parliament can in
fact introduce at once universal suffrage, and do everything which the
ingenuity of partisanship can suggest for diminishing the
representation of property and of Protestantism. If, further, in any
part of Ireland there be reason to fear opposition to the laws of the
Irish Parliament, a severer Coercion Act may be passed than any which
has as yet found its way on to the pages of the English or the Irish
Statute Book. Worse than all this, the Irish Parliament has the right to
legislate with regard to transactions which have taken place before the
passing of the Home Rule Bill. An Act inflicting penalties on
magistrates who have been zealous in the enforcement of the Crimes Act,
an Act abolishing the right to recover debts incurred before 1893, an
Act for compensation to tenants who had suffered from obedience to the
behests of the Land League, are all Acts which, however monstrous, the
Irish Parliament is, under the new constitution, competent to pass.

My assertion is, be it noted, not that all or any of such laws would be
passed, but that the passing of them would, under the new constitution,
be legal. The Irish Parliament could further by its legislation pursue
lines of policy opposed to the moral feeling and political judgment of
Great Britain, and this too where Irish legislation practically affects
Great Britain. State lotteries might be re-established, gambling tables
might be re-opened at Dublin. If the imposition of protective duties on
imported goods is forbidden, there is nothing apparently to prevent the
reintroduction of Protection into Ireland by the payment of bounties;
there is certainly nothing to prohibit the repeal or suspension of the
Factory Acts, so that English manufacturers might be compelled to
compete with Irish rivals who are freed from the limits imposed upon
excessive labour by the humanity or the wisdom of England. The power of
the Irish Parliament to pass laws which in the eyes of Englishmen are
unwise or inequitable, is, it will be urged, an essential part of the
policy of Home Rule. I admit that this is so. But this makes it the more
necessary that English electors should realise what this essential
characteristic of Home Rule means, or may mean. The Nonconformist
conscience exposed Irish Home Rulers to painful humiliation and possible
ruin by forbidding them to follow the political leader of their choice
to whom they had deliberately renewed their allegiance. Is it certain
that Englishmen who could not tolerate the official authority of Mr.
Parnell will bear the official leadership, say of Mr. Healy, if employed
to carry out the economical principles of Mr. Davitt?

The legislative powers, ample as they are, of the Irish Parliament are
in some respects restricted, but what the Parliament cannot accomplish
by law it could accomplish by resolution. The expressed opinion of a
legislature entitled to speak in the name of the people of Ireland must
always command attention, and may exert decisive influence. Suppose that
the Irish House of Commons asserts in respectful, but firm, language,
the right of the Irish people to establish a protective tariff; suppose
that when England is engaged in a diplomatic, or an armed, contest with
France, the Irish House of Commons resolves that Ireland sympathises
with France, that Ireland disapproves of all alliance with Germany, that
she has no interest in war, and wishes to stand neutral; or suppose
that, taking another line, the Irish Parliament at the approach of
hostilities resolves that the people of Ireland assert their inherent
right to arm volunteers, or raise an army in their own defence. No
English Minister can allege with truth that these resolutions or a score
more of the same kind are a breach of the constitution; yet such
resolutions will not be without their effect in England; they cannot be
without their effect abroad; in many parts of Ireland they will have
more than the authority of an Act of Parliament.

Assume, for the purpose of my argument, that the Irish Parliament always
acts absolutely within the limits or the letter of the constitution,
though to make this assumption is to substitute unreasonable hopes for
rational expectations. What Englishmen should note, because they do not
yet understand it, is that within the limits of the constitution the
Irish Cabinet and the Irish Parliament possess and must possess the most
extensive powers, and that these powers may be used in ways which would
surprise and shock the British public, and impede and weaken the action
of the Imperial, or English, Government.

D. _The Restrictions (or Safeguards) and the Obligations_

I. _Their Nature_. The limitations on the power of the Irish Legislature
are of a twofold character.

The Restrictions contained in clause 3 of the Bill are intended to
restrain the Irish Parliament from acting as the representative body of
an independent nation. This clause invalidates for example acts with
respect to the Crown or the succession to the Crown, with respect to
peace or war, with respect to the naval or military forces of the realm,
with respect to treaties or other relations with foreign states, and
with respect to trade with any place out of Ireland, which apparently
includes the imposition of a protective tariff.

The Restrictions[67] contained in clause 4 may be roughly divided into
three heads; first, prohibitions intended to ensure the maintenance of
absolute religious equality[68]; secondly, prohibitions intended to
prevent injustice to individuals, such as deprivation of life, liberty,
or property without due process of law, denial of equal protection of
the law, the taxing of private property without due compensation, or the
unfair treatment of any existing corporation; thirdly, a provision
prohibiting any law which deprives any inhabitant of the United Kingdom
of equal rights to public sea fisheries.[69]

On these Restrictions it were easy to write an elaborate treatise.
Should our new constitution ever come into force, they will give rise to
a whole series of judgments, and to lengthy books explanatory thereof.
The language in which the Restrictions are expressed is in many cases
exceptionable. No lawyer will venture to predict what for instance may
be the interpretation placed by the Courts on such expressions as 'due
process of law,' 'just compensation,' and the like, and it is more than
doubtful whether the so-called safeguards are so expressed as to carry
out the intention of their authors, or, even in words, adequately to
protect either the authority of the Imperial Parliament or the rights of
individuals. But it is not my purpose to criticise the Restrictions, or
the Bill itself, in detail. The drafting of the Government of Ireland
Bill needs much amendment, but at the present juncture it is waste of
time to criticise defects removable by better draftmanship or by slight
changes in the substance of the measure. My object is to dwell on such
points relating to the Restrictions as show their bearing on the
character of the new constitution.[70]

_First._ The Restrictions are one and all of them limits upon the
powers of the Irish Parliament; they are none of them limits upon the
powers of the Irish Executive. The new constitution does not
contain--from its nature it hardly could contain--a single safeguard
against abuse of power by the Irish Ministry or its servants. Yet in all
countries there is far more reason to dread executive than parliamentary
oppression, and this is emphatically true of Ireland.

_Secondly._ The Restrictions contain no prohibition against the passing
of an Act of Indemnity.

Yet of all the laws which a Legislature can pass an Act of Indemnity is
the most likely to produce injustice. It is on the face of it the
legislation of illegality; the hope of it encourages acts of vigour, but
it also encourages violations of law and of humanity. The tale of
Flogging Fitzgerald in Ireland, or the history of Governor Eyre in
Jamaica, is sufficient to remind us of the deeds of lawlessness and
cruelty which in a period of civil conflict may be inspired by
recklessness or panic, and may be pardoned by the retrospective sympathy
or partisanship of a terror-stricken or vindictive Legislature.
Circumstances no doubt may arise in Ireland, as in other countries,
under which the maintenance of order or the protection of life may
excuse or require deviation from the strict rules of legality. But the
question, whether these circumstances have arisen, will always be
decided far more justly by the Parliament at Westminster than it can be
decided by the Parliament at Dublin. Can any one really maintain that a
Parliament in which Mr. Healy, or, for that matter, Col. Saunderson,
might be leader, would be as fair a tribunal as a Parliament under the
guidance of Mr. Gladstone or Lord Salisbury for determining whether an
officer who, acting under the direction of the Irish Government and with
a view to maintain order at Belfast or at Dublin, should have put an
agitator or conspirator to death without due trial, had or had not done
his duty.

_Thirdly._ There is among the Restrictions no prohibition against the
passing of an _ex post facto_ law. Yet an _ex post facto_ law is the
instrument which a legislature is most apt to use for punishing the
unpopular use of legal rights. There is not a landlord, there is not a
magistrate, there is not a constable in Ireland, who may not tremble in
fear of _ex post facto_ legislation. There is no reason, as far as the
Home Rule Bill goes, why the gaoler who kept Mr. William O'Brien in
prison or the warders who attempted to pull off his breeches, should not
be rendered legally liable to punishment for their offences against the
unwritten law of Irish sedition. No such monstrosity of legal inequity
will, it may be said, be produced. I admit this. But the very object of
prohibitions is the prevention of outrageous injustice. The wise
founders of the United States prohibited both to Congress and to every
State legislature the passing of _ex post facto_ legislation. If any man
hint that it be an insult to Ireland to anticipate the possible
injustice of an Irish Parliament, my reply is simple. No Irishman need
resent as an insult prohibitions which were not felt to be insulting
either by the citizens of America or the citizens of Massachusetts.

_Fourthly._ The Restrictions on the powers of the Irish Parliament do
not contain any safeguard against legislation which sets aside
contracts.

This is remarkable, not to say ominous. The Gladstonian constitution has
been drawn up by legislators who profess to profit by the experience of
America. Under the Constitution of the United States[71] no State can
pass any law 'impairing the obligation of a contract.' This provision
has kept alive throughout the Union the belief in the sacredness of
legal promises. It embodies a principle which lies at the bottom of all
progressive legislation. It gives the best guarantee which a
constitution can give against the most insidious form of legislative
unfairness; it embodies a doctrine which all legislatures are likely to
neglect and which an Irish Parliament is more likely to neglect than any
other legislature, for in Ireland there exist contracts which do not
command popular approval, and the Imperial legislation of twenty years
and more has taught the Irish people that agreements which do not
command popular approval may, without breach of good faith, be set aside
by legislative enactment. We all know further that reforms, or
innovations, are desired by thousands of Irishmen which cannot be
carried into effect unless the obligation of contracts be impaired. Why,
then, have statesmen who borrow freely from the Constitution of the
United States omitted the most salutary of its provisions from our new
constitution?

The official reply is at any rate singular; it is apparently[72] that
the section of the United States Constitution which invalidates any law
impairing the obligation of a contract has given much occupation to the
Courts of America. This answer is on the face of it futile; it urges the
proved utility of a law as a reason for its not being enacted; as well
suggest that because the criminal courts are mainly occupied with the
trial of thieves there ought to be no law against petty larceny, or that
because the labours of the Divorce Court increase year by year, the law
ought not to permit divorce. The absurdity of the official reply
suggests the existence of some reason which the defenders of this
strange omission are unwilling clearly to allege. The true reason why
the founders of the new constitution have omitted in this instance to
copy a polity which they profess to admire is not hard to discover. An
enactment which enjoined an Irish Parliament to respect the sanctity of
a contract would be fatal to any remodelling of the Irish land law which
tended towards the spoliation of landowners. Yet this very fact makes
the matter all the more serious. That British statesmen should under
these circumstances deliberately decline to insert an injunction to
respect the sanctity of plighted good faith is much more than an
omission. It amounts to the suggestion, almost to the approval, of
legislative robbery; it is a proclamation that as against landlords, as
against creditors, as against any unpopular class, the Imperial
Parliament sanctions the violation of good faith. To the Irish
Parliament the authors of the new constitution in effect say: 'You may
raise no soldiers, you may not yourselves summon volunteers for the
defence of your country, you shall not impose customs on foreign goods,
and are therefore forbidden to follow a policy of protection approved of
by every civilised State except England; you shall neither establish nor
endow a church, you shall not by providing salaries for your priesthood
at once lighten the burdens of the flock, and improve the position of
the pastor; these things, not to speak of many others, you are forbidden
to do, though there are many wise statesmen who deem that the courses of
action from which you are debarred would conduce to the dignity and the
prosperity of Ireland; but there is one thing which you may do, you may
sanction breach of faith, you may encourage dishonesty, you may enjoin
fraud, you may continue to teach the worst lesson which the vacillation
of English government has as yet taught the Irish people, you may drive
home the conviction that no man need keep a covenant when the keeping
thereof is to his own damage.' This is the message of political morality
which the last true Parliament of the United Kingdom hands over to the
first new Parliament of Ireland.

II. _Their Enforcement._ The nature of the Restrictions imposed upon
the Parliament, and indirectly upon the Government of Ireland, is of far
less importance than are the means provided for their enforcement. A law
which is not enforceable is a nullity; it has in strictness no
existence.

The methods provided by the Home Rule Bill for keeping the Irish
Parliament within its proper sphere of legislative activity are two in
number--the veto of the Lord Lieutenant, and the action of the Courts.

_The Veto._ This is little more than an empty sham, for it must in
general be exercised on the advice of the Irish Cabinet; in other words
it will never be exercised at all.[73] Were the matter not so serious
there would be something highly amusing in the conduct of
constitution-makers who, intending to provide against unconstitutional
legislation on the part of the Irish Parliament, provide that the Irish
Cabinet, who are practically appointed by the Irish Parliament, and who
direct its legislation, shall have power to veto Bills passed by the
Irish Parliament presumably on the advice of the Irish Cabinet.

The English Ministry no doubt may, if they see fit, instruct the Lord
Lieutenant to veto a given Bill. So also the Imperial Parliament has
authority to repeal or override any Act, constitutional or
unconstitutional, passed by the Irish Parliament. Each power stands on
the same footing, neither is meant for ordinary use; either is a means
of legal revolution. The veto of the Crown means little in New Zealand;
it will at best mean no more in Ireland; but in truth it will mean a
good deal less. New Zealand sends no member to Westminster to stay the
hand of the Imperial Government whenever it attempts by way of veto or
otherwise to put in force the reserved powers of the Imperial
Parliament.[74]

_The Privy Council and the Courts_. The English Privy Council[75] may
nullify the effect of Irish legislation in two ways.

It may as an administrative body give a decision that an Act is
void.[76] This power can by exercised only upon the application of the
Lord Lieutenant or a Secretary of State, and it is a power which we may
expect will be but rarely employed, for its use would at once give rise
to a direct conflict between the Irish Parliament and the English Privy
Council. Let it be noted in passing that this provision for the decision
of constitutional questions is foreign to the habits and traditions of
English Courts; no judge throughout the United Kingdom ever pronounces
a speculative opinion upon the extent, operation, or validity of an Act
of Parliament. It is the inveterate habit of our judges to deal with
particular cases as they come before them, and with particular cases
alone. They will find themselves greatly perplexed when they come to
pronounce judgment upon abstract questions of law. This is not all. The
proposed arrangement is as foreign to the spirit of American Federalism
as it is to the spirit of English law. The Supreme Court of the United
States never in strictness pronounces an Act either of Congress or of a
State Legislature void. What the Court does is to treat it as void in
the decision of a particular case. Tocqueville and other critics have
directed special attention to the care with which the Federal tribunals,
by dealing only with given cases as they arise, avoid as far as possible
coming into conflict with any State. They determine the rights of
individuals; they do not determine directly what may be the legislative
competence of the State, or for that matter of the Federal,
Legislature.[77] The extraordinary power given to the Privy Council
violates a fundamental principle of federalism, which by the way is
violated in other parts of the Home Rule Bill. It brings, or tends to
bring, the central power, represented in this case by the Privy Council,
into direct conflict with one of the States of the Federation.[78]

The English Privy Council, or, in strictness, the Judicial Committee of
the Privy Council, is under the new constitution constituted a Final
Court of Appeal from every Court in Ireland.[79]

The Privy Council also is the Court of Appeal from a new kind of
Imperial, or as one may say 'Federal,' judiciary, specially formed for
the determination of matters having relation to the competence of the
Irish Parliament.

This Imperial or Federal judiciary consists of the two Exchequer Judges
of the Supreme Court in Ireland; they are appointed under the Great Seal
of the United Kingdom, and therefore by the English Ministry. Their
salaries are charged on the Consolidated Fund of the United Kingdom, and
they are removable only on an address to the Houses of the Imperial
Parliament. They constitute therefore an Imperial not an Irish Court.
Before this Court may be brought on the application of any party thereto
any legal proceedings in Ireland which _inter alia_ 'touch any matter
not within the power of the Irish Legislature, or touch any matter
affected by a law which the Irish Legislature has not power to repeal or
alter.'[80] With the details of these arrangements I need not trouble my
readers; the point to notice is that, whenever in any proceeding in
Ireland the validity or constitutionality of an Irish Act can come into
question, the matter may, at the wish of any party concerned, and in
many cases apparently must be, brought before an Imperial or in effect
British Court--the Exchequer Judges--and be determined by them subject
to an appeal to another Imperial or British Court, viz. the Privy
Council. Note further that to the Exchequer Judges are given special
powers for the enforcement of any judgment of their Court. If the
Sheriff does not give effect to their judgment, they may appoint any
other officer with the full rights of a Sheriff to enforce it.[81]

Here then we have the machinery of the Imperial, or Federal, Judicature.
To put the matter simply, the Restrictions imposed on the Irish
Parliament depend for their effectiveness on judgments of the Privy
Council enforced by the Exchequer Judges.

Consider how the whole arrangement will work.[82] The theoretical
operation of the scheme is clear enough. _A_ sues _X_ in an Irish Court,
say, to simplify matters, before the Exchequer Judges, for L1,000 due to
_A_ for rent. _X_ bases his defence on an Act of the Irish Parliament,
drawn by Irish statesmen, and approved presumably by Irish electors. _A_
questions the constitutionality of the Act. The Exchequer Judges are
divided in opinion. The matter at last comes before the Privy Council.
The Privy Council pronounce the Act void, and give judgment in _A's_
favour. He has a right to recover the L1,000 from _X_. The whole
question in theory is settled. The law is unconstitutional, the law is
void; _A_ has obtained judgment. But can the judgment be enforced? This
is the essential question; for the object of a plaintiff is to obtain
not judgment but payment or execution. What then are the means for
enforcing the judgment of the Privy Council when it is not supported by
Irish opinion, when it sets aside an Act of the Irish Parliament, and
when it may possibly be opposed to the decision, in a similar case, of
an Irish Court? The means are the action of the Sheriff. What if the
Sheriff is a strong Nationalist, and makes default? The only thing to be
done is to appoint an officer empowered to carry out the decree of the
Court. Of course if the Irish Ministry are bent on enforcing the
judgment, if the Exchequer Court, whose judgment, it may be, has been
overruled, is zealous in supporting the authority of the Privy Council,
if the Irish people are filled with reverence for tribunals which are
really English Courts, all will go well. But Mr. Gladstone himself
cannot anticipate that novel constitutional machinery will work with
ease, or that on the passing of the Home Rule Bill the disposition, the
traditional feelings, and the sympathies of the Irish populace will be
changed. Suppose that _A_ is Lord Clanricarde; suppose that _X_ is an
evicted tenant. It is not common sense to believe that the judgment in
his lordship's favour will as a matter of course take effect. At the
present moment the Irish Courts, backed by the whole authority of the
Imperial Government and the Irish Executive, often find a difficulty in
enforcing their judgments. Will English Courts find it easy to give
effect to a judgment in Ireland if the Irish Executive and its servants
stand neutral or hostile? What if the Irish House of Commons turn out as
unwilling that force should be used for enforcing the decree of the
Privy Council as are some English Radicals that force shall be employed
for the protection of free labourers against Trades Unionists? What if
the officer of the Court is in fact some bailiff trembling for his own
life? He may, I am told, call in the military. Of his authority to do
this I am not quite sure. He must, I suppose, in the first instance
apply to the Irish Home Secretary. The Irish Minister pressed by the
opposition turns a deaf ear to the appeal of the bailiff. Application
must then be made in some form or other to the English Ministry. The
Imperial Cabinet will think more than once before horse, foot, and
artillery are, against the wish of the Irish Government, put in movement
to enforce the judgment of a British Court, and to obtain L1,000 for
Lord Clanricarde. The matter will have become serious; the dignity of
the Irish nation will be at stake; the complaints of the plaintiff will
be drowned by the indignant clamours of eighty members at Westminster.
The essential principle of the new constitution is that there shall be
but one Executive in Ireland. The moment that the British Government
intervenes to support the judgment of British Courts, we have in Ireland
two hostile Executives. We tremble on the verge either of legal
revolution or of civil war. An English Cabinet, I suspect, will hardly
enforce the unpopular rights of a hated plaintiff by use of arms.

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