A Leap in the Dark by A.V. Dicey

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[29] Mr. Sexton, Feb. 13, 1893, _Times Parliamentary Debates_, p. 319;
Mr. Redmond, Feb. 14, 1893, _ibid_. pp. 350-52; and April 13, 1893,
_ibid_. p. 414. Compare especially language of Mr. Redmond, _Irish
Independent,_ Feb. 17, and note that all the arguments for Home Rule
drawn from its success or alleged success in the British Colonies imply
that the relation of the Imperial Parliament to Ireland shall resemble
its relation to the Colonies. See generally, debate of May 16 in _The
Times,_ May 17, pp. 6-8.

[30] Feb. 13, 1893, _Times Parliamentary Debates_, p. 303.

[31] April 14, 1893, _ibid_. pp. 439, 440.

[32] Feb. 14, 1893, _ibid_. pp. 340, 341, 343.

[33] Bill, clause 12, sub-clause (3).

[34] This is the only sense in which the sovereignty of the Imperial
Parliament is inalienable. This should be noted, because a strange and
absurd dogma is sometimes propounded that a sovereign power such as the
Parliament of the United Kingdom, can never by its own act divest itself
of sovereignty, and it is thence inferred or hinted that there is no
need for the Imperial Parliament to take measures for the preservation
of its supremacy. The dogma is both logically and historically
untenable. A sovereign of any kind can abdicate. A Czar can lay down his
power, and so also can a Parliament. To argue or imply that because
sovereignty is not limitable (which is true) it cannot be surrendered
(which is palpably untrue) involves the confusion of two distinct ideas.
It is like arguing that because no man can while he lives give up, do
what he will, his freedom of volition, so no man can commit suicide. A
sovereign power can divest itself of authority in two ways. It may put
an end to its own existence or abdicate. It may transfer sovereign
authority to another person, or body of persons, of which body it may,
or may not, form part. The Parliaments both of England and of Scotland
did at the time of the Union each transfer sovereign power to a new
sovereign body, namely the Parliament of Great Britain. The British
Parliament did in 1782 surrender its sovereignty in Ireland to the Irish
Parliament. In 1800 both the British Parliament and the Irish Parliament
alienated or surrendered their sovereign powers to the Parliament of the
United Kingdom. Compare Dicey, _Law of the Constitution_ (7th ed.), note
3, p. 65.

[35] It may, I am quite aware, be argued that the presence of Irish
representatives is not requisite for the maintenance of parliamentary
supremacy. In theory it is not. An arrangement might quite conceivably
be made (which if Home Rule were to be conceded might be the least
objectionable method of carrying out a radically vicious policy) under
which it should be distinctly agreed that Ireland should occupy the
position of a self-governing colony with all the immunities and
disadvantages thereof, and should cease to be represented at
Westminster, whilst the British Parliament retained the right to
abolish, or modify, the Irish constitution. Such an arrangement would,
however, make it perfectly plain that the sovereignty of the British
Parliament meant in Ireland what the sovereignty of the Imperial
Parliament now means in New Zealand. But 'the retention of the Irish
members is a matter of great public importance' (at any rate in the
opinion of Mr. Gladstone) 'because it visibly exhibits that supremacy'
(_i.e._ the supremacy of Parliament) 'in a manner intelligible to the
people.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_,
p. 306. See as to Home Rule in the character of colonial independence,
_England's Case against Home Rule_ (3rd ed.), pp. 197-218.

[36] _i.e._ at the moment when these pages are written. What parts of
the Government of Ireland Bill may or may not be officially deemed
essential by the time these pages appear in print, no sensible man will
undertake to predict. Mr. Gladstone's own language is most
extraordinary. On the retention of the Irish members, which in the eyes
of any ordinary man affects the whole character of the new constitution,
and essentially distinguishes the Home Rule policy of 1886 from the Home
Rule policy of 1893, he uses (_inter alia_) these words: 'On the
important subject of the retention of the Irish members I do not regard
it, and I never have regarded it, as touching what may be called the
principles of the Bill. It is not included in one of them. But whether
it be a principle of the Bill or not, there is no question that it is a
very weighty and, if I may say so, an organic detail which cuts rather
deep in some respects into the composition of the Bill.'--Mr. Gladstone,
Feb. 13, 1893, _Times Parliamentary Debates_, pp. 305, 306. This
statement, with the whole passage of which it forms part, is as
astounding as would have been a statement by Lord John Russell on
introducing the great Reform Bill, that he could not say whether the
disfranchisement of rotten boroughs did or did not form a principle of
the measure.

[37] Compare Report of Special Commission, pp. 18, 19.

[38] Under the Home Rule Bill of 1893 as sent up to the House of Lords,
it would have been the 'constant presence.'

[39] The division of parties in an American State is governed not by
questions concerning the internal affairs of the State, but by the
questions which divide parties at Washington. State politics depend upon
federal politics. 'The national parties have engulfed the State parties.
The latter have disappeared absolutely as independent bodies, and
survive merely as branches of the national parties, working each in its
own State for the tenets and purposes which a national party professes
and seeks to attain.' See Bryce, _American Commonwealth_, ii. p. 194.

[40] _i.e._ in 1893.

[41] Mr. Morley at Newcastle, _The Times_, April 22, 1886.

[42] Now Lord Morley of Blackburn.

[43] _i.e._ in 1893, and as they continue to be in 1911.

[44] Mr. Morley at Newcastle, _The Times_, April 22, 1886. [Morley's
argument applied primarily, no doubt, to the Home Rule Bill of 1886; its
force, however, was infinitely strengthened as applied to the Home Rule
Bill of 1893 by the change which retained eighty Irish members at
Westminster with unrestricted powers of legislation. The tenor of his
argument applies, I contend with confidence, to any Home Rule Bill which
shall propose to give Ireland a real Irish Parliament led by an Irish
Cabinet, and at the same time to retain representatives of Ireland as
members of the British Parliament.]

[45] See p. 43, _ante_.

[46] See Motley's speech, _Times_, April _22_, 1886.

[47] See Bill, Third Schedule.

[48] This is at any rate the opinion of Mr. Redmond expressed in the
_Nineteenth Century_, Oct. 1892.

[49] Bill, clause 9, sub-clause (3).

[50] The authors of the Home Rule Bill foresee the possibility of such
an erroneous decision. They have carefully provided that such an error
shall have no legal effect. Clause 9, sub-clause (4), 'Compliance with
the provisions of this section shall not be questioned otherwise than in
each House in manner provided by the House,' is in reality a provision
sanctioning the grossest unfairness. Its effect is that a British Bill
passed solely by virtue of the Irish vote is, on its becoming an Act,
good law, in spite of its having been passed in violation of the
constitutional rule laid down in clause 9, sub-clause (3), that an Irish
member shall not be entitled to deliberate or vote on any Bill the
operation of which is confined to Great Britain.

[51] Compare Bill, clause 9, sub-clause (3), and sub-clause (4), which
provides that 'compliance with the provisions of this section shall not
be questioned otherwise than in each House in manner provided by the
House.'

[52] 23 Geo. III. c. 28.

[53] The reader, in order to understand this account of the proposed
constitution of 1886, should remember that under that constitution there
were in effect, though not in name, constituted three different
Parliaments, which must be carefully distinguished.

1. The British Parliament at Westminster, containing no Irish
members, which was to legislate for Great Britain and for the whole
British Empire except Ireland.

2. The Irish Parliament at Dublin, containing no British
representatives, which was to legislate for Ireland, but which was
not to legislate for England, Scotland, or for any other part of
the British Empire, and was not to have any voice whatever in the
general policy of the Empire.

3. The Imperial Parliament also sitting at Westminster, and
comprising both the British and the Irish Parliament. This body
would have corresponded nearly, if not exactly, with the existing
Parliament of the United Kingdom, and was intended to come together
only on special occasions and for a special purpose, namely the
revision or the alteration of the Gladstonian constitution. For the
fuller explanation of the whole of this subject see _England's Case
against Home Rule_ (3rd ed.), pp. 234, 238

Note that England gains little or nothing (as compared with what was
offered to her under the Home Rule Bill of 1886) by the Imperial
Parliament retaining the power to legislate for Ireland, for even under
that Bill the Imperial Parliament (_i.e._ the Parliament at Westminster
when consisting both of British and of Irish members) could legislate
for Ireland.

[54] _Unionist Delusions_, pp. 6-9.

[55] The following passage from the writings of a man whose words,
whilst he was yet amongst us, Unionists and Gladstonians alike always
heard with the respect due to sense, to ability, to knowledge, and to
fairness, deserves attention:--

'In Mr. Gladstone's proposed measure of Home Rule' _[i.e._ the Bill
of 1886]' the Parliament sitting at Westminster was no longer to
contain Irish members. I hold this to be an essential feature of
the scheme, an essential feature of any scheme of Home Rule. By Mr.
Gladstone's scheme, Ireland was formally to exchange a nominal
voice, both in its own affairs and in common affairs, for the real
management of its own affairs and no voice at all in common
affairs. This is the true relation of Home Rule. As dependent
Canada has no representatives in the Parliament of the United
Kingdom, so neither would dependent Ireland have representatives in
the Parliament of Great Britain. I am unable to understand why this
provision, which seemed so naturally to follow from the rest of the
scheme, awakened so powerful an opposition among Mr. Gladstone's
own supporters. I believe the Irish have no wish to appear in the
British Parliament. They wish to manage their own affairs, and are
ready to leave Great Britain to manage its own affairs and those of
the "Empire" to boot. It is very hard to see in what character the
Irish members are to show themselves at Westminster. If they may
vote on British affairs, while the British members do not vote on
Irish affairs, surely too great a privilege is given to Ireland; it
is Great Britain which will become the dependency. If they are to
vote on "Imperial" affairs only, to say nothing of the difficulty
of defining such affairs, it will be something very strange, very
novel, very hard to work, to have members of Parliament who are
only half-members, who must walk out of the House whenever certain
classes of subjects are discussed.' (E.A. Freeman, 'Irish Home
Rule and its Analogies,' _The New Princeton Review_, vi. pp. 194,
195.)

Mr. Freeman's language proves that I have not overrated the essential
difference or opposition between the Home Rule policy of 1886 and the
Home Rule policy of 1893.

[56] It is styled in the Home Rule Bill 'an Executive Committee of the
Privy Council of Ireland.'

[57] If there were reason to expect (which there is not) that the Home
Rule Bill would pass into law, it would be worth while to consider
carefully a question which has not yet engaged the attention of English
statesmen: Is it desirable that under a system of Home Rule the Irish
Executive should be a Parliamentry Ministry? The answer to this question
is by no means clear. Both in the United States, and in every State of
the Union, the executive power is lodged in the hands of an official who
is neither appointed nor removable by the Legislature. The same remark
applies to the Executive of the German Empire. In Switzerland the
Ministry, or Council of State, is indeed appointed, but is not removable
by the Federal Assembly or Parliament. Arguments certainly might be
suggested in favour of creating for Ireland an Executive whose tenure of
office might be independent of the will of the Irish Parliament.
Ireland, in short, like many other countries, might gain by the
possession of a non-parliamentary Executive. See as to the distinction
between a parliamentary and a non-parliamentary Executive, _Law of the
Constitution_ (7th ed.), App. p. 480.

[58] See Bill, clause 14.

[59] This would apparently approve itself to Dr. Nulty, Roman Catholic
Bishop of Meath. Of Mr. Justice Andrews he seems to have written that
'this Judge is a Unitarian,' and that it appears to the Bishop that 'the
man who denies the divinity of our Lord is as incompetent to form clear,
correct, and reliable conceptions of the feelings, the instincts, the
opinions, and the religious convictions of an intensely Irish population
as if they were inhabitants of another planet.' See _The Times_, April
3, 1893, p. 8, where a correspondent from Ireland purports to give the
effect of a pamphlet by Dr. Nulty. The Bishop wrote, I suppose, with a
view to Mr. Justice Andrews' opinions as to priestly influence at
elections, but the Bishop's words suggest the inference that the
government of a Catholic country ought to appoint Catholic Judges. Why
should we be surprised at this? Religious toleration is not a doctrine
of the Roman Catholic Church.

[60] See Home Rule Bill, 1893, clause 35, p. 214, _post_.

[61] 'I am not suggesting for a moment that we are going to set up in
Ireland two independent and separate Executives. I think the granting of
Home Rule in any intelligible sense would be entirely incomplete if it
were not supplemented by the granting of executive power, and in my
judgment the Executive in Ireland is intended to be and must be
dependent upon and responsible to the Irish Legislature in Irish
affairs. But that does not in the least prevent the retention in the
Crown of the executive government of the United Kingdom, as it provided
in this Bill such executive authority as is necessary for the execution
of the Imperial laws' (sic). Mr. Asquith, April 14, 1893, _Times
Parliamentary Debates_, p. 440. Compare _Hansard_, vol. xi. same date,
p. 348.

[62] Bill, clause 30.

[63] This is technically expressed in the Bill by the provision that
'the two forces [viz. the Royal Irish Constabulary and the Dublin
Metropolitan Police] shall, while they continue, be subject to the
control of the Lord Lieutenant as representing Her Majesty.' As to the
military or naval forces of the Crown, the Bill contains no provision,
but it cannot, it is submitted, be doubted that they will remain subject
to the Imperial Government, and, except with the sanction of the
Imperial Government, will not be subject to the control of the Irish
Executive.

[64] See Bill, clauses 1-5, and as to the Restrictions on its
legislative power, see pp. 80-110, _post_.

[65] See two excellent articles in the _Spectator_ of February 25 and
March 4, 1893.

[66] Of course all these statements are to be taken subject to the
Restrictions placed on the powers of the Irish Legislature by Bill,
clauses 3, 4, pp. 197, 198 _post_.

[67] These Restrictions, or safeguards, deprive Ireland of powers in
fact possessed by the Legislature of any self-governing colony, and I
believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893,
clause 3, sub-clause (3) (p. 197, _post_,) as it appears in the original
Bill, with the same clause as amended by the House of Commons and sent
up to the House of Lords. The original clause forbids the Irish
Parliament to make any law in respect (_inter alia_) of 'naval or
military forces or the defence of the realm.' The clause as amended by
the House of Commons forbids the Irish Parliament to make any law in
respect of '(3.) Navy, Army, Militia, Volunteers, and any other military
forces, or the defence of the realm, or forts, or permanent military
camps, magazines, arsenals, dockyards, and other needful buildings, or
any places purchased for the erection thereof.'

In 1893, Unionists and Gladstonians alike were determined that on no
pretence whatever should an Irish Parliament be allowed to raise an
Irish army, even of volunteers. The very name of 'volunteers,' and the
history of 1780-82, explain and justify their prudence.

[68] Clause 4, sub-clause (1) to (4).

[69] For the details of the Restrictions contained in clauses 3 and 4
the reader should study carefully the terms of the Bill itself. See
Bill, in Appendix.

[70] In more than one case it is pretty clear that the Restrictions are
in themselves ineffective. Take these instances:--

1. The Restrictions do not really prevent the drilling of an armed
force. The Act which makes drilling illegal is a statute of 1819,
60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and
cannot (it is submitted) be repealed by the Irish Parliament. But
this statute of 1819 might easily be evaded, for by sec. 1 meetings
for training and drilling may be allowed by any two Justices of the
Peace. The Irish Executive might, and probably would, appoint
plenty of justices who were willing to allow training and drilling.
The men thus trained and drilled could not, I conceive, technically
be made a volunteer force, but they might, for all that, be a very
dangerous armed body.

2. It is not certain what is the real effect of the provisions
whereby no 'person may be deprived of life, liberty or property
without due process of law.' Does it, for example, preserve a right
to trial by jury? I doubt whether it does. American judgments on
the same words in United States Constitution, Amendments, art. 14,
would of course have no legal authority in the United Kingdom, and
there is a special reason why they often could not be followed. No
process would (it is submitted) be considered in an Irish or
British Court as not a 'due' process, for which a parallel could be
found in the legislation of the Imperial Parliament. But the
Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no
other enactment, took away the right to trial by jury in cases of
trial for treason, murder, etc.

3. Private property might still in fact be taken without just
compensation. The Privy Council would not apparently have to
consider whether in any given case property was taken without just
compensation, but whether a particular law was a law whereby it
might be taken without just compensation. Suppose, for example, Sir
James Mathew and the commissioners who sat with him were
constituted by an Irish Act a Court for determining what
compensation should be given for the taking of certain property for
public use, and the Act itself provided that just compensation must
be given. It is very doubtful how far the Privy Council could treat
the Act as invalid, or could in any way enter upon the question
whether just compensation had been given. Yet it is plain that such
a Court might give very far from just compensation, say to Lord
Clanricarde.

[71] Constitution, art. i sect. 10.

[72] See Mr. J. Morley, April 18, 1893, _Times Parl. Deb._, p. 500.

[73] See Bill, clause 5, sub-clause (3). The language of this clause
disposes of the contention put forward by at least one Gladstonian
candidate at the last general election [_i.e._ of 1892], that the veto
must of necessity be exercised under the control of the British Cabinet;
an arrangement too futile for an ardent Gladstonian to contemplate as
possible is therefore actually enacted in the Government of Ireland
Bill.

[74] It is to be presumed that the Crown, or in effect the British
Cabinet, does not in the case of Ireland retain the power of
'disallowance' under which the Crown occasionally annuls colonial Acts
which have received the assent of a colonial Governor. The power to
disallow an Irish Act which, though not unconstitutional, has worked
injustice, might be of advantage. But in truth the parliamentary methods
for enforcing the Restrictions or safeguards are utterly unreal; they do
not repay examination; whether there be two sham modes of enforcement,
or one, must be to a sensible man a matter of indifference. As to the
disallowance of Acts see Rules and Regulations published for the use of
the Colonial Office, chap. iii.; Legislative Councils and Assemblies,
Rules 48-54; British North America Act, 1868, sections 55-57; _England's
Case against Home Rule_ (3rd ed.), p. 33. [Compare Dicey, _Law of
Constitution_ (7th ed.), pp. 111-114.]

[75] The appeal to the English Privy Council, both under clauses 19,
_22_, and 23 of the Bill, appears to be in each case an appeal to the
Judicial Committee of the Privy Council. [The particular provisions
contained in the Home Rule Bill, 1893, as to an appeal to the Privy
Council, etc., are now of little direct importance, but they are worth
study as showing the extreme difficulty of providing any satisfactory
body for acting as a Court called upon to decide the numerous
constitutional questions, as to the legislative power of an Irish
Parliament, which must be raised under any Home Rule Act whatever.]

[76] See Bill, clause 23.

[77] See Tocqueville, _Democratie en Amerique_, i. chap. viii. pp.
231-250; Bryce, _American Commonwealth_, ii. (1st ed.) p. 45; _ibid._ i.
ch. 23.

[78] Compare _England's Case against Home Rule_ (3rd ed.), pp. 257, 258.

[79] Compare Bill, clauses 19, 22, pp. 206, 209, _post._

[80] Bill, clause 19, sub-clause(4).

[81] Clause 19, sub-clause (5). The whole of the provisions as to the
Exchequer Judges are extremely obscure. The jurisdiction and the powers
of the Court, should it ever be formed, will need to be defined by a
special Act of Parliament. There are special laws regulating the action
of the Federal Judiciary both in the United States and in Switzerland.
As the matter at present stands the jurisdiction of the Exchequer Judges
and of the Privy Council as a Court of Appeal from them may apparently
be thus described.

It extends to all legal proceedings in Ireland which

(i) are instituted at the instance of or against the Treasury or
Commissioners of Customs, or any of their officers, or

(ii) relate to the election of members to serve in [the Imperial]
Parliament, or

(iii) touch any matter not within the powers of the Irish
Legislature, or

(iv) touch any matter affected by a law which the Irish Legislature
have not power to repeal or alter.

It is possible that sub-clause (4) gives the Exchequer Judges a much
wider jurisdiction than is intended by the authors of the Home Rule
Bill, and the strictures which have been made on this sub-clause deserve
attention. My purpose, however, is not to criticise the details of the
Home Rule Bill or to suggest amendments thereto. Its fundamental
principle is, in the eyes of every Unionist, unsound, and the Bill
itself therefore unamendable. My object is simply to describe and
criticise the general constitutional provisions of the Bill and to show
their bearing and effect.

[82] Compare _England's Case_ (3rd ed.), pp. 258, 259.

[83] See _England's Case_ (3rd ed.), pp. 214-218.

[84] See Home Rule Bill, clause 3, sub-clause (7) (p. 198, _post_), and
compare same clause slightly amended, in Bill, as sent up to the House
of Lords, sub-clause (8).

[85] These strictures on the financial arrangements which were to exist
between England and Ireland apply directly to the Home Rule Bill as
introduced into the House of Commons, but they are less applicable to
the Bill as amended, more or less in favour of Ireland, before the Bill
was sent up to the House of Lords. Compare clause 10 of the original
Bill with clause 11 of the Bill as amended and brought up to the House
of Lords.

[86] Bill, clauses 14, 15, and 16. [Compare with these clauses of the
original Bill clauses 13, 14, 15, and 16 of the Bill as amended before
being sent to the House of Lords.]

[87] See Fiske, _Critical Period of American History_, chs. iii. and iv.

[88] See, _e.g._, letter of Mr. Clancy, M.P., on the Financial Clauses of
the Home Rule Bill, _Manchester Guardian_, April 4, 1893.

[89] Bill, clause 15.

[90] See pp. 72 and 82, _ante_.

[91] See pp. 79, 80, _ante_.

[92] _Souvenirs de Alexis de Tocqueville_, p. 63.

[93] The reader should note the history of the insurrection in Ticino
during 1891. It is quite clear that the Liberals of Ticino who had
distinctly broken the law were more or less comforted or protected by
the Liberal party in the Swiss Federal Assembly. Compare Hilty,
_Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen
Eidgenossenschaft_ (_Jahrgang_ 1891).

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