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England's Case Against Home Rule by Albert Venn Dicey

A >> Albert Venn Dicey >> England\'s Case Against Home Rule




[Sidenote: Advantages of Federalism to England.]

It is now possible to perceive pretty clearly the relation of Federalism
to British or English interests. It would, as compared with the
independence of Ireland, present three advantages. There would not be
the same obvious and patent failure in the efforts of British
statesmanship to unite all the British isles into one country; the
continuity of English history would be to a certain extent preserved;
the break with the past would be lessened. The Federal Union might, in
the eyes of foreign powers, be simply the United Kingdom under another
form. The loss, again, to England in material resources would be
somewhat less than that involved in separation. Ireland might possibly
continue to contribute her share to the Federal Exchequer, though a
critic who reflects upon the expectations expressed by Home Rulers of
benefit to Ireland from the expenditure of Irish taxes on Irish objects,
will wonder how, unless the taxation of a poverty-stricken country is to
be greatly increased, the Irish people could support the expense both of
the central and of the local governments. American experience hardly
justifies the notion that Federalism is an economical form of
Government. It would, and this is no small advantage, make it possible
to guarantee, at any-rate in appearance, that the executive and
legislative authority of the Irish Government should be exercised with
due regard to justice. The Federal compact might, and probably would,
contain articles which forbade any State Government or legislature to
suspend the Habeas Corpus Act, to bestow political privileges upon any
church, to pass laws which infringe the obligation of contracts, to
deprive any man of his property without due compensation. The Ten
Commandments, in short, and the obvious applications thereof, might be
embodied in the fundamental law of the land. Federalism would at lowest
preserve a formal respect for justice, and if the system worked
efficiently, would protect individuals and minorities from gross
oppression at the hands of the Irish State Government.

These are the benefits of Home Rule to Great Britain. Let us now examine
what are the evils to Great Britain of the proposed constitutional
revolution. For whoever either will meditate for a short time on the
nature of Federalism, or will examine the mode in which the constitution
of the United States--the most successful federation which the world has
seen--actually works, will soon perceive that what is miscalled "Irish
Federalism" is in reality "British Federalism," and amounts, as I am
forced to reiterate again and again, to a proposal for changing the
whole constitution of the United Kingdom It is, in fact, the most
"revolutionary" proposal, if the word "revolutionary" be used in its
strict sense, which has ever been submitted to an English Parliament,
the abolition of the House of Lords, the disestablishment of the
Church, the abolition of the monarchy, might leave the English
constitution far less essentially changed than would the adoption of
Federalism even in that apparently moderate form in which it was
presented by Mr. Butt to the consideration of the English public.

[Sidenote: Disadvantages of Federalism to England.]

The definite disadvantages to England of the proposed revolution may be
summed up under three heads:--First, the sovereignty of the Imperial
Parliament would be destroyed and all English constitutional
arrangements would be dislocated; secondly, the power of Great Britain
would be diminished; thirdly, the chance of further disagreement with
Ireland would certainly not be diminished, and would probably be
increased.

_First._--Under all the formality, the antiquarianism, the shams of the
British constitution, there lies latent an element of power which has
been the true source of its life and growth. This secret source of
strength is the absolute omnipotence,[34] the sovereignty, of
Parliament. As to the mode in which King, Lords, and Commons were to
divide the sovereign power between themselves there have been at
different times disputes leading to civil war; but that Parliament--that
is, the Crown, the Peers, and the Commons acting together--is absolutely
supreme, has never been doubted. Here constitutional theory and
constitutional practice are for once at one. Hence, it has been well
said by the acutest of foreign critics that the merit of the English
constitution is that it is no constitution at all. The distinction
between fundamental articles of the constitution and laws, between
statutes which can only be touched (if at all) by a constituent
assembly, and statutes which can be repealed by an ordinary
Parliament--the whole apparatus, in short, of artificial
constitutionalism--is utterly unknown to Englishmen. Thus freedom has in
England been found compatible at crises of danger with an energy of
action generally supposed to be peculiar to despotism. The source of
strength is, in fact, in each case the same. The sovereignty of
Parliament is like the sovereignty of the Czar. It is like all
sovereignty at bottom, nothing else but unlimited power; and, unlike
some other forms of sovereignty, can be at once put in force by the
ordinary means of law. This is the one great advantage of our
constitution over that of the United States. In America, every ordinary
authority throughout the Union is hampered by constitutional
restrictions; legislation must be slow, because the change of any
constitutional rule is impeded by endless difficulties. The vigour which
is wanting to Congress, is indeed to a certain extent to be found in the
extensive executive power left in the hands of the President; but it
takes little acuteness to perceive that in point of pliability, power of
development, freedom of action, English constitutionalism far excels
the Federalism of the United States. Nor is it less obvious that the
very qualities in which the English constitution excels that of the
United States are essential to the maintenance by England of the British
Empire. Home Rulers, whether they know it or not, touch the mainspring
of the British constitution. For from the moment that Great Britain
becomes part of a federation, the omnipotence of Parliament is gone. The
Federal Congress might be called by the name of the Imperial Parliament.
It might possibly be made up of the same elements, be elected by the
same electors, and even in the main consist of the very same persons as
the existing Parliament of the United Kingdom; but its nature would be
changed, and its power would be limited on all sides. It might deal with
Imperial expenditure, with foreign affairs, with peace and war, with
other matters placed within its competence; on every other point the
British Congress would, like the American Congress, be powerless. Nor
would all the powers taken from the Congress be necessarily given to the
local assemblies. Every analogy points the other way. If the example of
the United States is to be followed, articles of the constitution would
limit the power both of the Imperial Congress and of the local
representative assemblies. This limitation of authority could not be
measured by what appears on the face of the constitution. Some council,
tribunal, or other arbiter--let us, for the sake of simplicity, call it
the Federal Court--would have authority to determine whether a law was
or was not constitutional, or, in other words, whether it was or was
not a law. Let no one fancy that the restraint placed on the power of
ordinary legislation by the authority of a Federal Court; which alone
can interpret the constitution, is a mere form which has no practical
effect. The history of the United States is on this point decisive. De
Tocqueville, Story, and Kent are far safer and better instructed guides
than authors who "cannot conceive how any conflict of authority could
arise which could not be easily settled by argument, by conference, by
gradual experience;" and who seem to hold that to deny the existence of
a difficulty is the same thing as providing for its removal The
following are a few of the instances in which the American judiciary
have in fact determined the limits which bound the powers, either of
Congress or of the State legislatures. The judiciary have ruled that a
State is liable to be sued in the Federal Courts; that Congress has
authority to incorporate a bank; that a tax imposed by Congress was an
indirect tax, and therefore valid; that the control of the militia
really and truly belongs to Congress, and not, as in effect contended by
Connecticut and Massachusetts, to the governors of the separate States.
The Federal judiciary have determined the limits to their own
jurisdiction and to that of the State Courts. The judiciary have
pronounced one law after another invalid, as contrary to some article of
the constitution--e.g., either by being tainted with the vice of _ex
post facto_ legislation, or by impairing the obligation of contracts.
These are a few samples of the mode in which a Federal Court limits all
legislative authority. If any one wishes to see the extent to which the
power of such a Court has gone in fact, he should study the decisions on
the Legal Tender Act, which all but overset or nullified the financial
legislation of Congress during the War of Secession. If he wishes to see
the effect of applying the constitution of the United States, or
anything like that constitution, to Great Britain and Ireland, he should
consider what is implied in the undoubted fact that the Land Act of 1870
and the Land Act of 1881 would, whether passed by the central or by any
local legislature under such a constitution, be at once treated as void,
as impairing the obligation of contracts. If I am told that we might
adopt Federalism without adopting the details of the American
constitution, my reply is, not only that the remark comes awkwardly from
innovators who wish to place Ireland in the position of Massachusetts,
but that the very gist of my argument is that the existence of some
arbiter (whether it be named Crown, Council, or Court), who may decide
whether the constitution has or has not been violated, is of the essence
of Federalism, while the existence of such an arbiter absolutely
destroys the sovereignty of Parliament. Nor do the inferences to be
drawn from the action of the Federal Court, and a study of the American
constitution as it actually exists, end here. In the decisions of the
Court we may trace the rise of question after question--that is, of
conflict after conflict--as to the respective rights of the Federation
and the individual States. From the history and from the immobility of
the constitution, we may perceive the extent to which the existence of a
Federal pact checks change, or, in other words, reform. Every
institution which can lay claim to be based upon an organic law acquires
a sort of sacredness. Under a system of Federalism, the Crown, the House
of Peers, the Imperial Parliament itself, when transformed into a
Federal Assembly, would be almost beyond the reach of change, reform, or
abolition. Nor is it the Legislature of Great Britain alone which would
suffer a fundamental change. The relations between the Executive and the
country would undergo immense modification. The authority of the Crown
might be enhanced by the establishment of a Federal Union. The King
would become, in a very special sense, the representative of national or
Imperial unity, and the weakening of Parliament might lead to the
strengthening of the monarch. However this might be, it has, it is
submitted, been now shown that Federalism would dislocate every English
constitutional arrangement.

_Secondly._--The changes necessitated by Federalism would all tend to
weaken the power of Great Britain. That this is so has been already to a
great degree established, in considering the mode in which Federalism
destroys the sovereignty of Parliament. But a system of Federalism would
assuredly weaken the Government quite as much as the Legislature. The
Executive, as the organ of the Federal Union, would be hampered by new
conditions utterly unknown to an English Ministry. The language of
Federalists exhibits a curious and ominous silence or ambiguity as to
the disposal of the armed forces. Is the army to be a British army, with
authority at the will of the Federal Government to enter every part of
the new Union, or is Ireland to have an independent force of her own?
This, again--and every specific criticism is open to the same
retort--may be called a detail, but it is a detail which touches the
root of the whole matter. If the Federal, that is in effect the English,
Government is to retain the same control over the whole army as at
present--if Ireland is not to have a local force under the control of
local authorities--then the language as to Irish independence used by
Irish Nationalists is singularly misleading. If, on the other hand,
order is to be maintained, or not maintained, by a native army under the
guidance of Irish commanders, then it passes the wit of man to see by
what means the rights of the central government are to be enforced in
any case of disagreement between the Imperial and the Irish Parliament.
With the memory of the Irish volunteers before his mind, an historian,
such, for example, as Mr. McCarthy, will hardly assert that the
difficulty raised is one of which he cannot conceive the existence. For
my part, I heartily join in the admiration he, no doubt, feels for the
patriots of 1782, but no man in his senses will maintain that the moral
of that year is that a local Irish army can, under no circumstances,
prove an embarrassment to the central Government. The general tone,
even more than the precise language of Irish Federalists, all but
forbids the supposition that they are prepared to secure the supremacy
of the Federal Government by giving it the sole control of the only
armed force which is to exist in any part of the Union. They probably
hope that some sort of compromise may be found with regard to a matter
in which, as theory and experience alike prove, compromise is all but
impossible. Under certain circumstances, and in certain cases, and
subject to certain conditions, the use of the armed force throughout
Great Britain and Ireland is, we may suppose, to be left in the hands of
the Federal Executive; under other circumstances, and under other
conditions, the local forces are probably to be controlled by the local
or State Government. Whether such an arrangement would continue in
working order for a year, is more than doubtful. Assume, however, that
somehow it could be got to work, the fact still remains that a scheme,
intended to secure local liberty, would certainly ensure Imperial
weakness. The need, moreover, for bestowing some element of strength on
a Federal Executive as a counterpoise to its many elements of weakness
leads almost of necessity to a result which has scarcely received due
notice. The executive authority must be placed beyond the control of a
representative assembly. Neither in the United States, nor in
Switzerland, nor in the German Empire, can the Federal administration be
displaced by the vote of an assembly. Federalism is in effect
incompatible with Parliamentary government as practised in England. The
Canadian Ministry, it may be urged, can be changed at the will of the
Dominion Parliament, and the common Ministry of Austria-Hungary is
responsible to the Delegations. This is true; but these exceptions are
precisely of the class which prove the rule which they are cited to
invalidate. The Cabinet system of the Dominion is a defect in the
Canadian Constitution, and could not work were not Canada, by its
position as a dependency, under the guidance of a power beyond the reach
of the Dominion Parliament. What may be the real responsibility to the
Delegations of the common ministry of Austria-Hungary, admits of a good
deal of doubt. No one, who will not be deceived by words, believes the
responsibility to be at all like the liability of Mr. Gladstone or Lord
Salisbury to be dismissed from office by a vote of the House of Commons.
The Emperor-King is, as regards the Austro-Hungarian Monarchy, the
permanent and unchangeable head of the State. Turn the United Kingdom
into a Federal State, and Parliamentary Government, as Englishmen now
know it, is at an end. This may or may not be an evil, but it is a
revolution which ought to give pause to innovators who deem it a
slighter danger to innovate on the Act of Union than to remodel the
procedure of the House of Commons.

The central Government would again, merely from that division of powers
which is of the essence of Federalism, be as feeble against foreign
aggression as against local resistance. Home Rule, it is constantly
said, has at least this advantage, as compared with Irish independence,
that it prevents any alliance between Ireland and a foreign enemy. This
gain might turn out rather nominal than real. Neither the United States
nor France could, of course, send an Embassy to any State comprised
within the British Union; but, if war impended, they might and would
attempt to gain the favour of the Irish Ministry, or the Irish party who
controlled the Irish Parliament, or exercised the authority of the local
Government of Ireland. Suppose that when war was about to be proclaimed
between the British Federation and France, the Irish Parliament objected
to hostilities with the French Republic. Can it be denied that the local
Parliament and the local executive could, by protests, by action, or
even by inaction, give aid or comfort to the foreign enemy? The local
legislature would, in the supposed case, be aided by a minority of the
central Parliament or Congress. Obstruction would go hand in hand with
sedition. Loyalty to the Union was strong throughout the Northern States
during the War of Secession; but the tale used certainly to be told that
had Meade been defeated at Gettysburg, the leaders of the New York
democracy would have attempted "to carry the State out of the Union."
Moreover, Great Britain would perhaps find it easier to control the
action of an independent than of a confederated Ireland. Blockades and
embargoes are, as already pointed out, modes of persuasion applicable
to foreigners, but inapplicable to citizens; the Government of the Union
found it harder to check the latent disloyalty of South Carolina than it
would have found it to deal with the open enmity of Canada. This topic
is too odious and too far removed from the realm of practical politics,
to need more than the allusion required for the completeness of my
argument.

Federalism, in short, would mean the weakness of Great Britain, both at
home and abroad. As the head of a Confederacy, England, as the head also
of the British Empire, would meet undiminished responsibilities with
greatly diminished power.

_Thirdly._--Federalism is at least as likely to stereotype and increase
the causes of division between England and Ireland as to remove them.

A Federal Government is, of all constitutions, the most artificial. If
such a government is to be worked with anything like success, there must
exist among the citizens of the confederacy a spirit of genuine loyalty
to the Union. The "Unitarian" feeling of the people must distinctly
predominate over the sentiment in favour of "State rights." To require
this is to require a good deal more than the mere general submission to
the Government which is requisite for the prosperity of every State,
whatever be the nature of its polity. In a Federation every citizen is
influenced by a double allegiance. He owes fealty to the central
Government; he owes fealty also to his Canton or State. National
allegiance and local allegiance divide and perplex the feelings even of
loyal citizens. Unless the national sentiment predominate, the
Federation will go to pieces at any of those crises when the interest or
wishes of any of the States conflict with the interest or wishes of the
Union. So keen an observer and profound a critic as De Tocqueville
believed that both the American and the Swiss Federations would make
shipwreck on this rock. He was mistaken; he did not allow for the rapid
development of national sentiment. But his error was pardonable. The
leaders of the Sonderbund did prefer the interest of Lucerne to the
unity of Switzerland. Lee and Jackson were disloyal to the Union,
because they were loyal to Virginia. Leading officers of the United
States army, soldiers educated at Westpoint, trained the armies of the
Confederates. They were men of unblemished honour; they were, some of
them, not originally zealous in the cause of secession, but they
believed that their duty to their State--to Virginia, to South Carolina,
or to Georgia--was paramount over their duty to the Government at
Washington. If Virginia had stood by the Union, General Lee might, in
all probability, have been the conqueror of the Confederate States, of
which he was the hero. Ireland has had far graver causes for
disaffection towards the English Government than any of the reasons
alleged for the secession of Virginia; but Irish officers and Irish
soldiers have always been perfectly loyal to England. The reason of the
difference is obvious; the officers of the English army have never been
distracted by the difficulties of divided allegiance. Make Ireland one
of the States of a Confederacy, and these difficulties will at once
arise. Irish officers and Irish soldiers, members of the Irish
State--paid by and to a certain extent under the command of the Irish
Government--can hardly be blamed if in times of civil differences,
leading it may be to civil war, they should feel more loyalty to their
State than to the Union. This Union, be it remembered, would in such a
case be nothing but Great Britain under a new and less impressive title.

The existence and nature of the Federal bond is calculated to supply
both the causes and occasions of such differences.

Home Rulers, it is clear, form already most exaggerated hopes of the
benefits to be conferred on Ireland by Home Rule; and, further, in their
own minds (naturally enough) confound Federalism with national
independence.

"Give Ireland," writes Mr. Finch,[35] "the management of her own
affairs, and you will see called into her service the ablest and most
capable of her sons; while, as things now stand, the intellect of
Ireland is shut out from all share in the administration. With careers
at home worthy of the best and ablest of the people, much of the wealth
which is now drained off from Ireland without any return, will be
expended in developing the industrial resources of the country;
industry will revive, and with the revival of industry will come
employment for the people. 'It is the difficulty of living by wages in
Ireland,' says Sir G.C. Lewis, 'which makes every man look to the land
for maintenance.' With employment for the people, half the difficulty of
the land question will be solved. If, then, we wish to promote the moral
and material welfare of the Irish people, let us make them masters of
their own affairs."

"I have indicated what I believe," writes Mr. O'Neill Daunt,[36] "to be
the radical disease of Ireland: the want of a domestic legislature racy
of the soil, and acting in harmony with the national sentiment. God has
created Ireland with the needs of a separate nation, and with the needs
are associated the rights. 'Our patent to be a State, not a shire,' said
Goold in 1799, 'comes direct from Heaven. The Almighty has in majestic
characters signed the great charter of our independence. The great
Creator of the world has given our beloved country the gigantic outlines
of a kingdom.'

"If Ireland had been left the unfettered use of the natural materials of
wealth in her soil and in her people, and of the facilities of internal
and external commerce supplied by her physical configuration and her
geographical position--if her interests were protected by a Parliament
sitting in her capital, securing the expenditure at home of her annual
revenue, both public and private, rendering impossible that destructive
haemorrhage of her income by which she is impoverished, aiding the
development of her industries, and resisting all aggression on her
commercial and political rights--in a word, if the Irish Constitution
had not been treacherously undermined and overthrown, we should now have
been the best support of the Empire, instead of being its scandal and
its weakness."

Politicians who write thus expect far more from national independence
than nationality itself can give. More than fifty years have elapsed
since Spain expelled the foreign invader; but Spain has not yet
succeeded in expelling ignorance, prejudice, superstition, or
oppression. But whatever be the miracles of nationality, Ireland would
not, under Federalism, be a nation. Rhode Island has all the freedom
demanded for his country by an eminent Home Ruler, whose expressions I
have cited. He surely does not consider the inhabitants of Rhode Island
to be a nation.

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John Oxenham - "Pearl of Pearl Island"

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A way with tears makes Magorian a worthy Costa winner
Articles published by guardian.co.uk Books

Perfumes: the Guide – a portal to a whole new art

Michelle Magorian scooped the 2008 Costa Children's Book Award with Just Henry, a huge 700-page book that made me cry. Not many authors can do that but Magorian handles dangerously emotional stuff and pulls it off without slipping into mawkish sentimentality. Hence tears.

The same quality marked out Goodnight Mister Tom, her first novel, which won the 1980 Guardian children's book prize and has been read by every child in year 6 and many others both younger and older – rightly so – ever since. Goodnight Mister Tom is avowedly weepy. Only the hardest heart could remain unmoved. I once met a child who'd sticky-taped three pages together because they made her cry too much – I'm sure everyone who's read the book will know which three.

In Goodnight Mister Tom, Magorian had the external drama of the second world war as an emotional backdrop: put simply, there was a lot to weep over. In Just Henry, however, the setting is 1949 and there should be – and is – a feeling of optimism and hope. It is a period that's rarely used in fiction but Just Henry reveals it to be one that's worth exploring. The effect of the war is still being felt in the social changes it brought about. Life didn't just "slip back": few families were lucky enough to remain unaffected. Fathers were lost or altered; mothers found themselves raising families alone, or having to return abruptly to a subordinate role; children were forced to make adjustments either way.

In her big, bold novel, knitted together with more mysteries and coincidences than are credible, Magorian wonderfully captures that uncertainty and shows children's ability to move forward and embrace change far faster than their parents or grandparents. Lest this realism and the solving of the mysteries is too mundane, Michelle adds an extra layer of emotion by weaving in the stories of film stars from the movies of the day. For once, the current fashion of long, long, long books is justified. Just Henry is a wallowing great read. Just don't forget your hanky.

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Leona Lewis to write autobiography

I touched on Perfumes: the Guide by Luca Turin and Tania Sanchez in today's G2 arts diary. What a wonderful book (I've just opened it and, in a synaesthesic overture, it's offering me Amouage Gold, a spray-sample of which I left between its leaves). It offers a critical analysis – smelling notes, if you will – of 1,500 perfumes. I suppose the authors' language and technique relates somewhat to wine criticism. But the art of writing about something so emotionally rich and elusive (and at the same time entirely unlockable by the proper technical expertise) reminded me a bit of how people write (or try to write) about music (a subject I'm speaking about at this year's Association of British Orchestras annual conference). As it happens, Turin and Sanchez often use musical metaphor to help explain the nature of a perfume (they talk in terms of "brassy" or "melodic line" or "string section"; Shalimar has a "uniquely sweet, penetrating tune"; Yatagan a "high-pitched, hissing tone"). What about a job swap between these two and Andrew Clements or Alexis Petridis, I wonder.

Over Christmas I did a lot of smelling in the various perfumery halls and perfumery shops of London, and had enormous fun trying to get to grips with the artform. The joy of it is that most perfumes are widely available and can be squirted by the curious with impunity. The scent I've been wearing for the past few years – Irisia by Creed – Turin and Sanchez write off, with a cutting one-star review, as a "green floral chypre of exceptional banality and unpleasantness", so I have have had the amusement of trying to find a replacement.

By the way, Sanchez notes the importance of the web in writing and sharing knowledge about perfume. She writes: "Until recently, talking intelligently about the art of perfume seemed impossible. Then suddenly it seemed inevitable. What changed? The obvious: the Internet. Online now you can read historical and technical information, find discontinued or otherwise elusive perfumes, order samples of raw materials to smell out of curiosity, and, most important, find communities of people clustered around this single obsession. Half of what I know I owe to the 24-hour-a-day pajama party that is the fragrance board of Makeup Alley... Online communities can criticise perfume in a way that magazines have never dared: there's no advertising to lose... Perfume blogs now seem to outnumber the sample vials around my desk: there are men and women of intelligence sitting down every day and thinking and writing about perfume."

It's a bit like the way Alex Ross talks about the way the web has affected his relationship with and access to contemporary music. It's that old long tail.

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