A Leap in the Dark by A.V. Dicey

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Why, it will be said, assume that the Irish Government and the Irish
people will not enforce the law? The assumption, I answer, is justified
not only by the history of Ireland, but by general experience. In all
federations, even the best ordered, difficulties constantly arise as to
the sphere of the Federal Government and the State Governments, and as
to the enforcement of judgments delivered by Federal Courts. The
authority of the federal tribunals has not always been easily enforced
even in the United States. Serious difficulties hamper the action of the
Swiss federal authorities. Even in England enthusiasm or conviction
occasionally triumphs over legality. English clergymen are at least as
reasonable as excited politicians, yet Ritualists have not invariably
submitted to the authority of the Privy Council. Why should Irishmen be
more reasonable than other men? In Ireland we are trying an entirely
novel and dangerous experiment; we are fostering the spirit of
nationality under the forms of federation. The Privy Council, hide the
matter as you will, represents British power. If Ireland is a nation,
the Government of Great Britain is an alien Government; the judgments of
the Privy Council are the judgments of an alien Court, and reason
forbids us to expect more submission to the decisions of an alien
tribunal than to the laws of an alien legislature.

Suppose, however, that British judgments are enforced by the British
army. Is this a result in which any Englishman or Irishman could
rejoice? Can we say that the new constitution works well when its real
and visible sanction is the use of British soldiers? The plain truth is
that arrangements for legally restraining the Irish Parliament within
the due limits of its powers must be ineffective and unreal and, if the
principle of Home Rule be once admitted, the widest must be the wisest
form of it. Colonial independence is better for Ireland and safer for
England than sham federalism.[83]

Grant, however, that the judgments of the Privy Council can be enforced
more easily than I suppose, still even Gladstonians would admit that the
proper working of the new constitution depends on two presumptions. The
one is that the Irish people are under no strong temptation to oppose
the Restrictions or to throw off the obligations imposed upon the Irish
Parliament or Government. The other that they possess no ready means for
nullifying these Restrictions or obligations.

Each of these assumptions is false.

Restraints ineffective for the protection either of British interests or
of individual freedom may be intensely irritating to national sentiment.

The limitations imposed on the powers of the Irish Parliament, or, in
other words, of the Irish people, are opposed to the spirit of
nationality and independence which Home Rule, it is hoped, will appease
or satisfy. They will be hateful therefore not only to that multitude
whom Gladstonians call the Irish people, but to every Irishman who is
bidden by Gladstonians to consider himself a member of the Irish nation.

The Irish are a martial race; they excel in the practice, and delight in
the pageantry, of warfare, but they are forbidden to raise a regiment or
man a gunboat. They cannot legally raise a regiment of volunteers, they
cannot save their country from invasion. Will they permanently acquiesce
in restraints not imposed on the Channel Islands? Irishmen, Unionists no
less than Home Rulers, are mostly Protectionists, and believe that
tariffs may give to Ireland, not indeed a 'plethora of wealth,' for of
this no man out of Bedlam except Mr. Gladstone dreams, but reasonable
prosperity. Vain to argue that Protection is folly. Englishmen think so,
and Englishmen are right. But English doctrine is not accepted in
Germany, in France, in the United States, or in the British Colonies;
why should Irishmen be wiser than the inhabitants of every civilised
country, except England? The fact, in any case, cannot be altered that
most Home Rulers are Protectionists, and that many of them desire Home
Rule mainly because they desire Protection for Ireland. Yet Protection,
at any rate in the form of a tariff, they cannot have.[84] Take again
the Restrictions imposed on the endowment of religion. All English
Nonconformists, and many English Churchmen, hold these Restrictions to
be in themselves politic and just. But the one strong reason for the
concession of Home Rule is that Irishmen disagree with English notions
of policy and of justice. No one can assign any reason why Irish
statesmen, Catholics or Protestants, might not feel it a matter of duty
or of policy to endow the priesthood, to level up instead of levelling
down, to enter into some sort of concordat with Rome. It is a policy
which is distasteful to English Nonconformists and to most Irish
Protestants. But under a system of Home Rule, at any rate, English
Nonconformists have no right to dictate the policy of Ireland. There is
not the remotest reason why Restrictions on the endowments of religion
and the like should not be hateful to Irishmen.

The limitations, in short, on the competence of the Irish Parliament are
inconsistent with the fundamental principle of Gladstonian statecraft.
It is a policy we are told of trust in the people, the limitations are
dictated by distrust of the Irish people; Home Rule is to be granted in
order that Irishmen may give effect to Irish ideas; the Restrictions are
enacted to check the development of Irish ideas, and to impose English
ideas upon the policy of Ireland.

As though, however, the Restraints were not enough to cause first
irritation and then agitation, the financial provisions contemplated by
the Bill are in themselves certain to generate, not future, but
immediate discord.

Of the financial arrangements instituted under the new constitution, my
purpose is to say very little. My object is not to show that Mr.
Gladstone's financial calculations are wrong, or that they are ruinous
to Ireland or unfair to England. All this is for my present purpose
immaterial. My aim is to insist that, in their very nature, they are a
cause of conflict; and that they bring the interest, and, even more,
the sentiment, of Ireland into direct opposition with the power of
England.[85]

All the customs payable at every Irish port are to be regulated,
collected, and managed by, and to be paid into, the Exchequer of the
United Kingdom. Not a penny of these customs benefits Ireland; they are
all--and this is certainly the light in which they will appear to most
Irishmen--a contribution to the revenue of the United Kingdom, that is,
of England. If every taxable article were smuggled into Ireland, so that
not one pound of Irish customs were paid to the English treasury, the
Imperial power would lose, but the Irish State would gain. Ireland would
be delivered from a tax which will soon be called a tribute. If,
moreover, Ireland continues to be treated as financially a part of the
United Kingdom, then free smuggling, which is free trade, would make
Ireland a free port, where might be landed untaxed the goods required by
the whole United Kingdom. It is easy to see how the English revenue
would suffer, but it is equally easy to see that Irish commerce might
flourish. If I am told that the ruin of the British revenue may be
averted by the examination of goods brought from Ireland to Great
Britain--this, of course, is so. But then freedom of trade within the
United Kingdom is at an end. We are compelled, in substance, to raise an
internal line of custom houses; we abolish at one stroke one great
benefit of the Treaty of Union.

The mode, again, in which the customs are levied outrages every kind of
national sentiment. Coast-guards, custom-house officers, and gaugers are
never popular among a population of smugglers; they will not be the more
beloved when every custom-house officer or coastguard is the
representative of an alien power, and is employed to levy tribute from
Ireland.

Another leading feature of the financial arrangements is the charging
upon the Irish Consolidated Fund of various sums rightly due and payable
to the Exchequer of the United Kingdom.[86] They are made a first charge
upon the revenue of Ireland. They are to be paid in the last resort upon
the order of the Lord Lieutenant, acting as an Imperial officer. The
necessity for some arrangement of this kind is clear. Millions have been
lent to Ireland, and these millions must be repaid. But if the need for
some such arrangement be certain, its desperate impolicy is no less
certain. England and Ireland, the English Government and the Irish
Government, are brought into direct hostile collision. The rich English
Government appears in the light of an imperious creditor the Irish
Government stands in the position of a poverty-stricken debtor. Note,
and this is the point which should be pressed home, that in all
confederations the difficulty of exacting the money needed by the
federal government from any state of the confederacy has been found all
but insuperable. Study the history of the thirteen American colonies
between the time of the acknowledgment of their independence by England
and the formation of the United States. This has been termed 'the
critical period' of American history. The colonies were united by
recollections of common suffering and of common triumph, they were not
divided by race or religion; no State aspired to separate nationality,
yet they drifted rapidly towards anarchy; they were discontented at
home, they were powerless abroad, above all, they nearly made shipwreck
on the financial arrangements. Congress was never able, for the
satisfaction either of national needs or of national honour, to obtain
fair contributions from the different States.[87]

Already, further, before the Home Rule Bill has passed from the hands of
the House of Commons Mr. Gladstone's very moderate demands, as they seem
to Englishmen, are held by some Irish Nationalists to be outrageous.[88]
The difference, moreover, is not a matter of calculation, to be settled
by accounts and balances, or disposed of by auditors. No one can read
the statements of Nationalists such as Mr. Redmond or Mr. Clancy without
seeing that the real difference of view lies very deep. These typical
Nationalists do not regard the United Kingdom as a nation. Ireland is
the nation. They doubt what is her interest in the British Empire; they
believe, and already hint, that the financial arrangements between the
two countries cannot be treated as a mere pecuniary transaction. Ireland
has been overtaxed and overburdened. She has claims for compensation.
All the feelings or convictions which inspired hatred of Irish landlords
are already being aroused with regard to the Imperial power. A campaign
against tribute may become as popular as a campaign against rent. The
two campaigns indeed have a close affinity; a large portion of the
tribute is in reality payment in respect of rent, and the instalments
which an Irish farmer pays to buy his land will, to him at any rate,
appear rent or tribute payable to Great Britain. The rent or tribute
will be collected under the new constitution by the Irish
Government.[89] No Irish Ministry will relish the position of collector.
It would have been difficult for a landlord to collect rent after his
agent had publicly announced that it was excessive and unjust. Yet a
landlord could dismiss his agent; the English Cabinet cannot dismiss the
Irish Government. It is certain too that the Irish Ministry will not
find the collection of rent easy. Should the Irish Government state that
the rent is iniquitously high, and refuse to collect it, what will be
the position of the British Ministry? It must either set the
constitution aside or undertake for itself the collection of rent in
opposition to, or, at any rate, unaided by, the Irish Executive and the
Irish Parliament. No more odious task was ever undertaken by a
government. Suppose, however, that things do not come to the worst, the
financial arrangements of the Bill ensure that Ireland will soon demand
modifications of its provisions. Opposition is a probability, discontent
is a certainty.

Ireland is provided under the new constitution with the readiest means
of nullifying the Restrictions. The Irish Cabinet and its servants can
at any moment reduce an unpopular law to a nullity. Even in England a
resolution of the House of Commons may be enough to turn a law into a
dead letter. The Imperial Cabinet at this moment could go very near
making the Vaccination Acts of no effect, and by declining to have
troops sent to Hull could, as I have already pointed out, give victory
to the Trades Unionists. Nor is it necessary that the Cabinet should
decline sending forces to Hull for the support of the law. An intimation
that persons accused of intimidation would either not be prosecuted at
all, or if prosecuted and convicted, would be pardoned, would be
sufficient of itself to make the strike successful. In no country could
the Executive do more to render laws ineffectual than in Ireland. The
Irish Cabinet might by mere inaction render the collection of rent
impossible; they might, as I have already pointed out, give tacit
encouragement to smuggling. If the people regarded a coastguard as an
enemy, if he and his family were left severely alone, if he were often
maltreated and occasionally shot, his position might be a difficult one,
even if supported by the whole force of the state. But if smuggling were
regarded as no crime, if the smuggler were looked upon as the patriot
who deprived an alien power of a revenue to which England had no right,
it is clear that nothing but the energetic support of all the central
and local authorities in the country could give a revenue officer the
remotest chance of victory in his contest with smugglers. But suppose
the national government were apathetic, suppose that the Irish Ministry
looked with favourable eye on the diminution of English revenue; suppose
that no Irish official gave any aid to a custom-house officer; suppose
that, if a British coastguardsman were murdered, Irish detectives made
no effort to discover the wrong-doer; and that when the culprit was
discovered the Irish law officers hesitated to prosecute; suppose that
when a prosecution took place the Attorney-General showed that his heart
was not in the matter, and that the jury acquitted a ruffian clearly
guilty of murder, is it not as clear as day that smuggling would
flourish and no customs be collected? In the same way the Irish Ministry
might by mere apathy, by the very easy process of doing nothing, nullify
the effect of judgments delivered by the Exchequer judges, and the Irish
Ministry would show very little ingenuity if they could not without any
open breach of the law impede the carrying out of executions against the
goods of persons whom popular feeling treated as patriots.

The Irish Executive might, as already pointed out,[90] easily raise an
Irish army. Drilling countenanced or winked at by the Irish Ministry
could never be stopped by the British Government. Prussia at the period
of her extreme weakness, and under the jealous eye of Napoleon, sent
every Prussian through the ranks. Bulgaria raised an army while
pretending to encourage athletic sports. The value of the precedent is
not likely to escape an Irish Premier.

The Irish Parliament cannot legally repeal a single provision of the
constitution, but an Irish Parliament might render much of the
constitution a nullity. The Parliament might pass Acts which trenched
upon the Restrictions limiting its authority. Till treated as void such
statutes would be the law of the land. Such voidable Acts, and even
parliamentary resolutions,[91] would go like a watchword through the
country and encourage throughout Ireland popular resistance to Imperial
law. A profound observer has remarked that people do not reckon highly
enough the importance at a revolutionary crisis of any show or
appearance of legality.[92] Revolution acquires new force when masked
under the form of law. This is a point which Englishmen constantly
overlook. They know the moral influence of leagues and combinations;
they do not reflect that a Parliament or House of Commons in sympathy
with resistance to Imperial demands would possess tenfold the moral
authority of any National League. Note too that the Irish Ministry and
the Irish Parliament would play into one another's hands, and would
further be strengthened by their Irish allies at Westminster, as also by
the Irish electoral vote in England.

For the true stronghold of the Irish Government lies, under the new
constitution, at Westminster.[93]

There they would command at least eighty votes: the Irish members could
still, as now, and far more effectively than now, coerce under ordinary
circumstances any Ministry disposed to enforce the rights of the
Imperial Government, or, in other words, of England.

Take a concrete case to which I have already referred.[94] Irish farmers
who have purchased under the Ashbourne Act grow weary of paying
instalments which are equivalent to rent. The Irish Cabinet refuses to
collect the rent; it urges its absolute inability to pay the sums due to
the Imperial Exchequer and asks for remission. Meanwhile the Irish House
of Commons passes a resolution supporting the conduct of the Irish
Government. The British Ministers are stern, and reject the request of
the Irish Cabinet. The Cabinet at Dublin retire from office. No
successors can be appointed who command the support of the Irish
Parliament. The Lord Lieutenant advises the Government at home that
things have come to a deadlock and that a dissolution will change
nothing. Thereupon the Irish members at Westminster begin to move; they
threaten general hostility to the British Ministry.

They proffer their support to the Opposition. It may of course happen
that the British Ministry can, like the Unionist Government of 1886,
defy the Opposition and the Irish members combined. If so the English
Cabinet can risk a constitutional conflict in Ireland, though it is a
conflict likely to end in disturbance or civil war. But judging the
future by the past the eighty members will hold the balance of power. If
so their course is clear. They expel from office the Ministers who have
protected the rights of the Imperial Government. A weak Ministry
depending on Irish votes rules, or rather is ruled, at Downing Street.
Every one knows how, under the supposed conditions, the affair will
end. There will be a transaction of some sort, and we may be certain
that such a transaction will be to the advantage of the Irish
Government, and will weaken or discredit Imperial or English authority.
We come round here to the root of the whole matter. Were the
Restrictions on the power of the Irish Parliament real and easily
enforceable, were the obligations imposed upon or undertaken by the
Irish people obligations of which an English Ministry could at once
compel the fulfilment, Restrictions and obligations alike would be
rendered futile and unreal by the presence of the Irish members at
Westminster. Every Home Rule scheme which can be proposed is impolitic
and is as dangerous as Separation; but the most impolitic of all
possible forms of Home Rule is the scheme embodied in the Bill of 1893.
Its special and irremediable flaw is the retention of the Irish members
at Westminster. This governs and vitiates all the leading provisions of
the new constitution. Under its influence every conceivable safeguard,
the supreme authority of Parliament, the veto, the legal restrictions on
the competence of the Irish legislature melt away into nothing.

They are some of them capable of doing harm, they are none of them
capable of doing good.

Cast a glance back at the leading features of the new constitution.

The Imperial Parliament remains in form unchanged, and retains the
attribute of nominal sovereignty. But in Ireland the Imperial Parliament
surrenders all, or nearly all, the characteristics of true and effective
power; it retains in fact in Ireland nothing more than the right to
effect under the semblance of a legal proceeding a revolution which
after all must be carried out by force. For practical purposes it has no
more power at Dublin than it has at Melbourne, _i.e._ it retains at
Dublin scarcely any real power whatever.

For the sake of this nominal and shadowy authority the Imperial
Parliament is itself transformed into a strange cross between a British
Parliament and the Congress of an Anglo-Irish Federation.

The Irish Executive and the Irish Parliament become under the new
constitution the true and real Government of Ireland. But the Irish
Government and the Irish people are fettered by Restrictions which would
not be borne by the Government or the people of a self-governing colony.
These Restrictions are ineffective to bind, but they are certain to
gall, and if taken together with onerous financial obligations to Great
Britain, which whether just or not must have an air of hardness, and
with the habitual presence in Ireland of a British army under the
direction of the British Executive, lay an ample foundation for the most
irritating of conflicts.

The new constitution, lastly, places in the hands of the Irish people
ample means for constitutional or extra-constitutional resistance to
Imperial, or in fact to English, power, and almost ensures the success
of Ireland in any constitutional conflict. The presence of the Irish
members at Westminster saves, or proclaims, the nominal sovereignty of
the Imperial Parliament; but their presence in truth makes this
sovereignty unexercisable, and therefore worthless, and while increasing
the apparent power ensures the real weakness of England.

FOOTNOTES:

[25] Thus little, if anything, is said in these pages on the
constitution of the Irish Legislature, though it is in several points,
and especially in the character of the Legislative Council, open to
grave criticism. Little, again, is said of the financial arrangements in
their fiscal character. The topic is of the highest importance, but it
must be debated in the main by experts. My remarks upon these
arrangements refer almost exclusively to the way in which they may
affect the working of the constitution. The inclusion of Ulster within
the operation of the Bill and the refusal to give weight to the demand
of Ulster that the Act of Union should not be touched, are of course
matters of primary importance. They ought never to be distant from the
thoughts of any one concerned with the policy or impolicy of Home Rule;
they dominate, so to speak, the whole political situation; they are
constantly referred to in these pages; but they do not form part of the
new constitution so much as conditions which affect the prudence or
justice of creating the new constitution.

[26] Bill, 1893, Preamble, and clauses 33, 37.

[27] The language of clause 33 is vague, but, according to the best
interpretation I can put upon it, its effect as to laws made for Ireland
after the Home Rule Bill becomes law will be this: The Imperial
Parliament will be able to pass enactments of any description whatever
with regard to Ireland, and the Irish Legislature will not be able to
repeal or alter any enactments so enacted by the Imperial Parliament
which are expressly extended to Ireland. Thus the Irish Parliament
might, it is submitted, on the Home Rule Bill passing into law repeal
the Criminal Law and Procedure (Ireland) Act, 1887, 50 & 51 Vict. c. 20.
But if, after the Home Rule Bill passed into law, the Criminal Law and
Procedure (Ireland) Act, 1887, were continued, or after its repeal by
the Irish Parliament were re-enacted, by the Imperial Parliament, then
the Irish Parliament could not repeal the Act or any part of it. Still
clause 33 of the Home Rule Bill is much too vaguely expressed. What, for
example, is the effect of an Act of the Imperial Parliament which is
'impliedly' extended to Ireland? If my interpretation of the clause is
the right one, the meaning of the clause ought to be made perfectly
clear; ambiguity in such a matter is unpardonable.

[28] See pp. 4-6 _ante_. This ambiguity underlies and vitiates almost
every argument used by Home Rulers, whether English or Irish, in favour
of Home Rule. English Home Rulers emphasise and exaggerate the extent of
the control, or the so-called supremacy, which, after the establishment
of an Irish Parliament, can and will be exerted in Ireland by the
Imperial Parliament at Westminster. Irish Home Rulers, when addressing
English electors, or the Imperial Parliament, often use language which
resembles the phrases of their English allies. But assuredly Irish Home
Rulers, when addressing Irishmen, or when collecting subscriptions from
American citizens of Irish descent, speak the language of Irish
Nationalists and cut down the effective supremacy of the Imperial
Parliament after the granting of Home Rule so as to make it consistent
with the war cry of 'Ireland a Nation.' (Compare Cambray's _Irish
Affairs and the Home Rule Question_, pp. 48-65.)

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