England's Case Against Home Rule by Albert Venn Dicey

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Reasoning, however, which fails to establish the expediency of creating
an Irish Parliament may prove, and in fact does amply prove, that the
task of maintaining peace order and freedom in Ireland is at the present
juncture a matter of supreme difficulty. Any possible course, moreover,
open to English statesmanship involves gigantic inconvenience, not to
say tremendous perils. A man involved practically in the conduct of
public affairs may easily bring himself to believe that the policy which
he recommends is not only the best possible under the circumstances, but
is also open to no serious objection. Outsiders, who in this matter are
better because more impartial judges than the ablest of politicians,
know that this is not so. We have nothing before us but a choice of
difficulties or of evils. Every course is open to valid criticism.

The maintenance of the Union must necessarily turn out as severe a task
as ever taxed a nation's energies, for to maintain the Treaty of Union
with any good effect means that while refusing to accede to the wishes
of millions of Irishmen, we must sedulously do justice to every fair
demand from Ireland, must strenuously and without either fear or favour
assert the equal rights of landlords and tenants, of Protestants and
Catholics, and must at the same time put down every outrage and reform
every abuse.

To carry out by peaceful means the political separation of countries
which for good and for evil have for centuries been bound together by
position and by history, is an operation so critical that in the
judgment of statesmen it involves dangers too vast for serious
contemplation.

How, lastly, to devise a scheme of Home Rule which, while giving to
Ireland as much of legislative independence as may satisfy her wants or
wishes, shall leave to England as much supremacy as may be necessary for
the prosperity of the United Kingdom, or for the continued existence of
the British Empire, is a problem which jurists would find it hard to
solve as a matter of speculative science, and which politicians may not
without reason hold to admit of no practical solution.

Yet Maintenance of the Union, Separation, Home Rule, are names which
designate the only paths open to us. To one of these three courses we
are absolutely tied down. Each path is arduous. To complain about the
nature of things is childish. The course of wisdom is obvious. We must
all of us look facts in the face. "Things and actions are what they are,
and the consequences of them will be what they will be. Why then should
we desire to be deceived?"[71] We must calmly compare the advantages of
the three steep roads which lie open to the nation, and then on the
strength of this comparison determine the course which the nation is
bound to follow by motives of expediency and of justice.

Such a comparison we have already instituted:[72] its results to any
reader who assents to my train of reasoning must be obvious.

The maintenance of the Union involves at the outset a strenuous and most
regrettable conflict with the will of the majority of the Irish people.
It necessitates at once the strict enforcement of law, combined with the
resolute effort to strip law of all injustice. It may require large
pecuniary sacrifices, and it certainly will require a constancy in just
purpose which is supposed, and not without reason, to be specially
difficult to a democracy. The difficulties on the other hand which meet
us are not unprecedented, though some of them have assumed a new form.
We have some advantages unknown to our forefathers: we can, more easily
than they could, remodel the practices of the Constitution, modify the
rules of party government, or, incredible as it may seem to members of
Parliament, touch with profane hands the venerable procedure of the
House of Commons. The English democracy, further, just because it is a
democracy, may, like the democracy of America, enforce with unflinching
firmness laws which, representing the deliberate will of the people, are
supported by the vast majority of the citizens of the United Kingdom.
The English democracy, because it is a democracy, may also with a good
conscience destroy the remnants of feudal institutions, and all systems
of land tenure found unsuitable to the wants of the Irish people. Nor,
though the crisis be difficult, are there features lacking in the
tendencies of the modern world which in the United Kingdom as in the
United States and in the Swiss Confederacy favour every effort to uphold
the political unity of the State. Whatever be the difficulties (and they
are many) of maintaining the Union, not in form only but in reality, the
policy is favoured no less by the current of English history, than by
the tendencies of modern civilization. It preserves that unity of the
State which is essential to the authority of England and to the
maintenance of the Empire. It provides, as matters now stand, the only
means of giving legal protection to a large body of loyal British
subjects. It is the refusal not only to abdicate legitimate power, but
(what is of far more consequence) to renounce the fulfilment of
imperative duties. Nor does Union imply uniformity. Unity of
Government--equality of rights--diversity of institutions,--these are
the watchwords for all Unionists. To attain these objects may be beyond
our power, and the limit to power is the limit to responsibility. Still,
whatever may be the difficulties, or even the disadvantages, of
maintaining the Union, it undoubtedly has in its favour not only all the
recommendations which must belong to a policy of rational conservatism,
but also these two decisive advantages--that it does sustain the
strength of the United Kingdom, and that it does not call for any
dereliction of duty.

Separation, or in other words the national independence of Ireland, is
an idea which has not entered into the practical consideration of
Englishmen. The evils which it threatens are patent: it at the same
moment diminishes the means of Great Britain and increases the calls
upon her resources. It lowers the fame of the country, and plants by the
side of England a foreign, it may be a hostile, neighbour; it involves
the desertion of loyal fellow-citizens who have trusted in the good
faith of England. Yet, on the other hand, the material losses and
perhaps the dangers involved in the independence of Ireland are liable
to exaggeration. Great Britain might find in her complete freedom of
action and in restored unity of national sentiment elements of power
which might balance the obvious damage resulting from Separation; she
might also find it possible to make for the protection of Loyalists
terms more efficacious than any guarantees contained in the articles of
a statutory constitution. If, further, the spirit of nationality has the
vivifying power ascribed to it by its votaries, then Ireland might gain
from it blessings which cannot be conferred by any scheme of merely
Parliamentary independence, since no form of Home Rule can transform
Ireland into a nation.

For Home Rule it may be pleaded that it offers two obvious advantages:
it satisfies the immediate wish of millions of Irishmen, and it
facilitates the adaptation of Irish institutions to Irish wants. These
advantageous results are the best that can be hoped for from Home Rule.
They are real, and to underrate them is folly; the moral gain indeed of
meeting the wishes of the body of the Irish people is so incalculable,
that did Home Rule involve no intolerable evils a rational man might
think it wise to venture on the experiment. Home Rule, it may be
suggested, has the further gain of lessening English responsibility for
the government of Ireland. What it really might effect is to lighten
England's sense of responsibility for misrule in Ireland. But this, so
far from being a blessing, would in truth be one of the greatest of
evils. The distinguished author of the Gladstonian Constitution denies
in his recent pamphlet that the Government of Ireland Bill would, if
passed, repeal the Act of Union. To follow the reasoning by which this
denial is made good is beyond my powers. But there is one aspect in
which the statement, paradoxical though it be, that the Union is not
dissolved by the existence of an Irish Parliament, has a most serious
meaning, which ought to command hearty and general assent. Under the
Gladstonian Constitution, as under any form of Home Rule, the Government
of the United Kingdom must still remain in the last resort responsible
for the administration of justice throughout the whole realm. Admit for
the sake of argument that the Act of Union, though affected in every
section, is not repealed, then assuredly if men be wrongfully deprived
of their property, if they be denied their lawful freedom, if they
suffer unlawful injury to life or limb in any part of the United
Kingdom, the responsibility for seeing that right be done falls on the
executive, and in the last resort on the Parliament, of the United
Kingdom. The delegated authority of a subordinate legislature will not
free the principal from the liability inherent in the delegation of
power; and if Home Rule in Ireland fosters, as it must foster, the
notion that the United Kingdom is not as a whole responsible for
misdeeds done in Ireland, this is one of the worst results of the
proposed constitutional change.

But putting this matter aside, an examination into the various forms
which Home Rule may assume leads to the conclusion that whatever be its
hypothetical benefits it threatens more than countervailing loss to
England. There is no need to do more than refer in most general terms to
evils which have already been set forth in detail. Home Rule under two
of its three possible forms dislocates and weakens the whole English
Constitution. Under its least objectionable form--that of Colonial
independence--it brings upon England many of the perils which would
follow upon the national independence of Ireland; it involves, if the
experiment is to have a fair chance of success, large pecuniary
sacrifice, and it does not present a reasonable hope of creating real
harmony of feeling between Great Britain and Ireland. Home Rule, lastly,
under whatever form, whilst not freeing England from moral
responsibility for protecting the rights of every British subject, does
virtually give up the attempt to ensure to these rights more than a
nominal existence, and thus gives up the endeavour to enforce legal and
equal justice between man and man. It must also be considered that an
examination into the different forms of Home Rule, while it shows that
no scheme of legislative independence for Ireland offers any promise of
finality, also suggests that the form of Home Rule least injurious to
England is the form which gives Ireland most independence. The inference
from these facts cannot be missed. Home Rule is the half-way house to
Separation. Grant it, and in a short time Irish independence will become
the wish of England. If any thorough-paced Home Ruler admit this
conclusion, and suggest that Home Rule is a desirable transition towards
Separation, the answer is that Home Rule is such a transition, but
assuredly that such a transition is not to be desired. If one country is
destined to become independent of another it is better for each not to
experience the disappointment and the heartburning which accompany a
period of unwilling connection.

This is the result of the comparison we have instituted between the
three possible courses open to England. If the comparison be just the
conclusion to which its leads is obvious. The maintenance of the Union
is at this moment to England a matter of duty even more than of
interest. If the time should come when the effort to maintain the unity
of the State is too great for the power of Great Britain, or the only
means by which it is found maintainable are measures clearly repugnant
to the humanity or the justice or the democratic principles of the
English people,--if it should turn out that after every effort to
enforce just laws by just methods our justice itself, from whatever
cause, remains hateful to the mass of the Irish people,--then it will be
clear that the Union must for the sake of England, no less than of
Ireland, come to an end. The alternative policy will then be not Home
Rule but Separation. We shall save the unity at the expense of lessening
the territory of the State; we shall escape self-reproach because having
reached the limit of our powers we shall also have filled up the measure
of our obligations. But if (as there is every reason to suppose)
agrarian misery is the source of Irish discontent, and agrarian misery
springs in part from bad administration, and in part from the law
governing the tenure of land; if, in general terms, the undoubted ills
of Ireland are curable by justice, even though justice proceed from the
Parliament of the United Kingdom--an assembly, be it noted, in which the
voice of Ireland is freely heard--then there is no need to indulge in
speculations, always dangerous, upon a possible remedy which may never
be necessary, and which, while the inhabitants of England and Ireland
are still fellow-citizens of one State, it is painful even to
contemplate. On the whole, then, it appears that whatever changes or
calamities the future may have in store, the maintenance of the Union is
at this day the one sound policy for England to pursue. It is sound
because it is expedient; it is sound because it is just.

[Sidenote: Character of England's case]

This is the case of England against Home Rule; it is a case which,
however feebly stated--and I may well have failed to state it with
force--is founded on argument. It is a case which makes and need make no
appeal to rhetoric; it is a case which indeed, like all sound views of
national policy, is grounded on the interest of the greater number of
the citizens of the State, but it is a case not grounded on any mere
pride of power, a case not based on any disregard of justice, a case
which above all involves no unfriendliness to Irishmen, and no
assumption, either tacit or express, that there has fallen to Irishmen a
greater amount of either original or acquired sin than falls to other
human beings, it is a case which does not assume that real or supposed
differences of race are a legitimate ground for inequality of rights.
Any one, indeed, after having to the best of his power tried to state
what can be said with fairness on one side of a question such as that
now at issue between the majority and the minority of the citizens of
the United Kingdom, may well call to mind the conclusion of the noblest
statement ever made by genius of a case involving momentous national
interests:--

"It would be presumption in me to do more than to make a case. Many
things occur. But as they, like all political measures, depend on
dispositions, tempers, means, and external circumstances for all their
effect, not being well assured of these, I do not know how to let loose
any speculations of mine on the subject. The evil is stated in my
opinion as it exists. The remedy must be where power, wisdom, and
information, I hope, are more united with good intentions than they can
be with me. I have done with this subject, I believe for ever. It has
given me many anxious moments for the two last years. If a great change
is to be made in human affairs, the minds of men will be fitted to it;
the general opinions and feelings will draw that way. Every fear, every
hope, will forward it; and then they who persist in opposing this mighty
current in human affairs will appear rather to resist the decrees of
Providence itself, than the mere designs of men. They will not be
resolute and firm, but perverse and obstinate."[73]

The sentiment of these words is one of eternal application. Still at
this great crisis in the fortunes of our country, when every course is
involved in undeniable perplexity, and surrounded by admitted danger,
there are two principles to which we may confidently appeal; for it is
by habitual adherence to them that England has grown to greatness. These
two principles are the maintenance of the supremacy of the whole State,
and the use of that supremacy for the purpose of securing to every
citizen, whether rich or poor, the rights of liberty and of property
conferred upon him by law. To maintain that any policy, however
plausible, by which these principles are violated, must undermine the
moral basis of the Constitution, and must therefore lead the nation to
calamity and to disgrace, is at any rate to plead a cause which rests
upon a firm foundation of plain morality. The case may be ill-stated,
the arguments by which it is defended may admit of reply, but it is a
case which a just man may put forward without shame, and a humane man
may support without compunction.

FOOTNOTES:

[71] Butler's Sermons; vii., p. 136, ed. 1726.

[72] See Chapters V., VI., & VII., _ante._

[73] Burke's Works, vol. vii., pp. 84, 85.

APPENDIX.

GOVERNMENT OF IRELAND BILL.[74]

ARRANGEMENT OF CLAUSES.

PART I.

_Legislative Authority_.

CLAUSE.

1. Establishment of Irish Legislature.

2. Powers of Irish Legislature.

3. Exceptions from powers of Irish Legislature.

4. Restrictions on powers of Irish Legislature.

5. Prerogatives of Her Majesty as to Irish Legislative Body.

6. Duration of the Irish Legislative Body.

_Executive Authority_.

7. Constitution of the Executive Authority.

8. Use of Crown lands by Irish Government.

_Constitution of Legislative Body_.

9. Constitution of Irish Legislative Body.

10. First order.

11. Second order.

_Finance_.

12. Taxes and separate Consolidated Fund.

13. Annual contributions from Ireland to Consolidated Fund of United
Kingdom.

14. Collection and application of customs and excise duties in Ireland.

15. Charges on Irish Consolidated Fund.

16. Irish Church Fund.

17. Public loans.

18. Additional aid in case of war.

19. Money bills and votes.

20. Exchequer divisions and revenue actions.

_Police_.

21. Police.

* * * * *

PART II.

SUPPLEMENTAL PROVISIONS.

_Powers of Her Majesty_.

22. Powers over certain lands reserved to Her Majesty.

_Legislative Body_.

23. Veto by first order of Legislative Body, how over-ruled.

24. Cesser of power of Ireland to return members to Parliament.

_Decision of Constitutional Questions_.

25. _Constitutional questions to be submitted to Judicial Committee_.

_Lord-Lieutenant._

26. Office of Lord-Lieutenant.

_Judges and Civil Servants_.

27. Judges to be removable only on address.

28. Provision as to judges and other persons having salaries charged on
the Consolidated Fund.

29. As to persons holding civil service appointments.

30. Provision for existing pensions and superannuation allowances.

_Transitory Provisions_.

31. Transitory provisions in Schedule.

_Miscellaneous_.

32. Post Office and savings banks.

33. Audit.

34. Application of parliamentary law.

35. Regulations for carrying Act into effect.

36. Saving of powers of House of Lords.

37. Saving of Rights of Parliament.

38. Continuance of existing laws, courts, officers, &c.

39. Mode of alteration of Act.

40. Definitions.

41. Short title of Act.

SCHEDULES.

* * * * *

_A Bill to amend the provision for the future Government of Ireland_.

[Sidenote: A.D. 1886]

Be it enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the same, as
follows:

PART I.

_Legislative Authority_.

[Sidenote: Establishment of Irish Legislature.]

1. _On and after the appointed day there shall be established in
Ireland a Legislature consisting of Her Majesty the Queen and an Irish
Legislative Body._

[Sidenote: Powers of Irish Legislature.]

2. _With the exceptions and subject to the restrictions in this Act
mentioned, it shall be lawful for Her Majesty the Queen, by and with the
advice of the Irish Legislative Body, to make laws for the peace, order,
and good government of Ireland, and by any such law to alter and repeal
any law in Ireland._

[Sidenote: Exceptions from powers of Irish Legislature.]

3. _The Legislature of Ireland shall not make laws relating to the
following matters or any of them:--_

(1.) _The status or dignity of the Crown, or the succession to the
Crown, or a Regency;_

(2.) _The making of peace or war;_

(3.) _The army, navy, militia, volunteers, or other military or
naval forces, or the defence of the realm;_

(4.) _Treaties and other relations with foreign States, or the
relations between the various parts of Her Majesty's dominions;_

(5.) _Dignities or titles of honour;_

(6.) _Prize or booty of war;_

(7.) _Offences against the law of nations; or offences committed in
violation of any treaty made, or hereafter to be made, between Her
Majesty and any foreign State; or offences committed on the high
seas;_

(8.) _Treason, alienage, or naturalization;_

(9.) _Trade, navigation, or quarantine;_

(10.) _The postal and telegraph service, except as hereafter in
this Act mentioned with respect to the transmission of letters and
telegrams in Ireland;_

(11.) _Beacons, lighthouses, or sea marks;_

(12.) _The coinage; the value of foreign money; legal tender; or
weights and measures; or_

(13.) _Copyright, patent rights, or other exclusive rights to the
use or profits of any works or inventions._

Any law made in contravention of this section shall be void.

[Sidenote: Restrictions on powers of Irish Legislature.]

4. _The Irish Legislature shall not make any law--_

(1.) _Respecting the establishment or endowment of religion, or
prohibiting the free exercise thereof; or_

(2.) _Imposing any disability, or conferring any privilege, on
account of religious belief; or_

(3.) _Abrogating or derogating from the right to establish or
maintain any place of denominational education or any
denominational institution or charity; or_

(4.) _Prejudicially affecting the right of any child to attend a
school receiving public money without attending the religious
instruction at that school; or_

(5.) _Impairing, without either the leave of Her Majesty in Council
first obtained on an address presented by the Legislative Body of
Ireland, or the consent of the corporation interested, the rights,
property, or privileges of any existing corporation incorporated by
royal charter or local and general Act of Parliament; or_

(6.) _Imposing or relating to duties of customs and duties of
excise, as defined by this Act, or either of such duties, or
affecting any Act relating to such duties or either of them; or_

(7.) _Affecting this Act, except in so far as it is declared to be
alterable by the Irish Legislature._

[Sidenote: Prerogatives of Her Majesty as to Irish Legislative Body.]

5. _Her Majesty the Queen shall have the same prerogatives with
respect to summoning, proroguing, and dissolving the Irish Legislative
Body as Her Majesty has with respect to summoning, proroguing, and
dissolving the Imperial Parliament._

[Sidenote: Duration of the Irish Legislative Body.]

6. _The Irish Legislative Body whenever summoned may have continuance
for five years and no longer, to be reckoned from the day on which any
such Legislative Body is appointed to meet._

_Executive Authority_.

[Sidenote: Constitution of the Executive Authority.]

7.--(1.) _The Executive Government of Ireland shall continue vested in
Her Majesty, and shall be carried on by the Lord-Lieutenant on behalf of
Her Majesty with the aid of such officers and such Council as to Her
Majesty may from time to time seem fit._

(2.) _Subject to any instructions which may from time to time be given
by Her Majesty, the Lord-Lieutenant shall give or withhold the assent of
Her Majesty to Bills passed by the Irish Legislative Body, and shall
exercise the prerogatives of Her Majesty in respect of the summoning,
proroguing, and dissolving of the Irish Legislative Body, and any
prerogatives the exercise of which may be delegated to him by Her
Majesty._

[Sidenote: Use of Crown lands by Irish Government.]

8. _Her Majesty may, by Order in Council, from time to time place
under the control of the Irish Government, for the purposes of that
Government, any such lands and buildings in Ireland as may be vested in
or held in trust for Her Majesty._

_Constitution of Legislative Body._

[Sidenote: Constitution of Irish Legislative Body.]

9.--(1.) _The Irish Legislative Body shall consist of a first and
second order._

(2.) _The two orders shall deliberate together, and shall vote together,
except that, if any question arises in relation to legislation or to the
Standing Orders or Rules of Procedure or to any other matter in that
behalf in this Act specified, and such question is to be determined by
vote, each order shall, if a majority of the members present of either
order demand a separate vote, give their votes in like manner as if they
were separate Legislative Bodies; and if the result of the voting of the
two orders does not agree the question shall be resolved in the
negative._

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