A Leap in the Dark / A Criticism of the Principles of Home Rule as Illustrated by the / Bill of 1893

by A. V. Dicey

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

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

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

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

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

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

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

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

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