England's Case Against Home Rule

by A. V. Dicey

Secondly.—Coercion means the enforcement of law by arbitrary and exceptional methods which tend to diminish the securities for freedom possessed by ordinary citizens. Thus the suspension of the Habeas Corpus Act, the abolition of trial by jury, the introduction of peculiar rules of evidence to facilitate convictions for a particular class of crimes, a suspension (speaking generally) of what would be called in foreign countries "constitutional guarantees," in order to secure obedience to particular laws, would be called coercion.

An enactment, then, which in ordinary language is called a Coercion Act, has one or both of the two following characteristics.[^[25]] It is an Act which either enforces some rule of law (e.g., the law that tenants must pay their rent, or that trades unionists must not molest artisans who accept lower wages than the scale prescribed by the union), which does not command the moral assent of the society or people among whom it is enforced, or else constrains obedience to law by some exceptional and arbitrary mode of procedure. Now the general prejudice against an Act which has either or both of these characteristics is within certain limits justifiable on grounds of good sense. Laws derive three-fourths of their force not from the fears of law-breakers, but from the assent of law-keepers; and legislation should, as a rule, correspond with the moral sentiment of the people. The maxim quid leges sine moribus, though it should always be balanced by the equally important maxim quid mores sine legibus, is one which no legislator dares neglect with impunity, and a law permanently at variance with wide moral feeling needs repeal or modification. It is also true that exceptional and arbitrary legislation is, simply because it is exceptional and arbitrary, open to suspicion. If it be desirable that personal liberty should be protected by the writ of Habeas Corpus, a suspension of the Habeas Corpus Act is on the face of it an evil. If it is not desirable that officers of the army should suddenly and without legal training exercise the power of judges, the establishment of martial law is in itself a great, though it may be a necessary calamity. Legislation, which has received the odious name of coercion, has frequently (though not always) exhibited one or both of the characteristics which render it fairly obnoxious to that designation. The objection, therefore, to Coercion Acts is on the face of it not unreasonable. What are the inferences which the objection supports is, of course, quite a different matter, and shall be considered in its due place.

It is most important, however, to note that the valid opposition to so-called Coercion Acts may and ought to be greatly mitigated by careful adherence to two maxims which are obvious, but are often neglected.

A Coercion Act in the first place, should be aimed, not at the direct enforcement of rules opposed to popular opinion, but at the punishment of offences which, though they may be indirectly connected with dislike of an unpopular law or with opposition to rights (for instance, of landowners) not sanctioned by popular opinion, are deeds in themselves condemned by the human conscience. Deliberate breaches of contract, insults to women and children, the murder or torture of witnesses who have given truthful evidence in support of a conviction for crime, brutal cruelty to cattle, may be methods of popular vengeance, or the sanctions which enforce an agrarian code; but one may feel certain that the man who breaks his word, who tortures or murders his neighbour or who huffs cattle, knows himself to be not only a criminal, but a sinner, and that the law, which condemns him to punishment, though it may excite temporary outcry, can rely on the ultimate sanction of the popular conscience.

A Coercion Act, in the second place, should as far as possible be neither a temporary nor an exceptional piece of legislation.

An Act which increases the efficiency of the criminal law should, like other statutes, be a permanent enactment. The temporary character of Coercion Acts has needlessly increased their severity, for members of Parliament have justified to themselves carelessness in fixing the limits of powers conferred upon the executive under the insufficient plea that these powers were intended to last but for a short time. It has also deprived them of moral weight. An Act which is a law in 1881, but will cease to be a law in 1882, has neither the impressiveness nor the certainty which gives dignity to the ordinary law of the land. Coercion Acts, again, should be general—that is, should apply, not to one part, but to the whole, of the United Kingdom. Powers needed by the Government for constant use in Ireland must occasionally be wanted in England, or, if they do not exist there, in Scotland. It were the strangest anomaly for the law to sanction a mode of procedure which convicts a dynamiter in Dublin, and not to give the Government the same means for the conviction of the same criminal for the same offence if he has crossed to Liverpool. The principle forbidding exceptional or extraordinary legislation suggests that Coercion Acts should in the main give new stringency to the criminal procedure, and should not invade the liberties of ordinary citizens. The object of a Coercion Act is to facilitate the punishment of wrongdoers, not to restrict the liberty of citizens who have not broken the law. This is a point legislators are apt to neglect. The distinction insisted upon will be understood by any one who compares the Act for the Better Protection of Person and Property in Ireland, 44 Vict. c. 4, of 1881, with the Prevention of Crime (Ireland) Act, 1882, 45 & 46 Vict. c. 25. They were each denounced as Coercion Acts: the earlier enactment was in many ways the more lenient of the two; yet in principle the Act of 1881 was thoroughly vicious, whilst in principle the Act of 1882 was, as regards its most effective sections, thoroughly sound. The Act of 1881 in effect gave the Irish executive an unlimited power of arrest: it established in theory despotic government. The Act of 1882 was in principle an Act for increasing the stringency of criminal procedure. The one could not be made permanent, and applied to the whole United Kingdom, without depriving every citizen of security for his personal freedom. The main enactments of the other might extend through the whole of Great Britain and Ireland, and produce only the not undesirable effect of making the whole United Kingdom a less pleasant residence than at present for criminals or conspirators.

An Act which should be permanent, which should apply to the whole United Kingdom, which should deal, not indeed exclusively but in the main, with criminal procedure, could hardly contain injudicious, harsh or tyrannical provisions. The passing of one such good Criminal Law Amendment Act would, though its discussion occupied a whole Session, save our representatives in Parliament an infinite waste of time, and would make unnecessary half-a-dozen Coercion Acts for Ireland. To enlarge the power of examining persons suspected of connection with a crime, even though no man is put upon his trial; to get rid of every difficulty in changing the venue; to give the Courts the right under certain circumstances of trying criminals without the intervention of a jury; to organise much more thoroughly than it is organised at present in England the whole system of criminal prosecutions; to enable the executive to prohibit public meetings which might provoke a breach of the peace, would in many cases be an improvement on the criminal law of England itself, and would in several instances be simply an extension to the whole United Kingdom of laws which exist without exciting any disapproval in some one division of it.[^[26]] Without special experience it would be presumptuous to assert that these or similar changes in criminal procedure would suffice for the enforcement of the law in Ireland during a period of disturbance. That such improvements in procedure would go a good way to make special Coercion Acts unnecessary, is in the highest degree probable. There is, moreover, nothing objectionable or anomalous in increasing as time goes on the stringency of criminal procedure. The law against crimes is the protection of men who are not criminals. Civilisation raises our estimate of the protection which good citizens ought to receive from the State; it also places new means of attack in the hands of cheats and ruffians. An elaborate criminal code is as necessary for a civilised society as are elaborately trained armies and scientific arms both of defence and offence.

No adherence, however, to sound maxims of criminal jurisprudence would, it must be frankly admitted, entirely take away, though it might greatly mitigate, the justifiable distaste for Coercion Acts. The necessity for these Acts points to discord in Ireland between the law of the land and the law of the people; they are the outward and visible sign of internal discontent and disloyalty; they give good ground for supposing that the law or some part of it requires amendment, and to many persons laws which admit the existence of a bad social condition will appear to be themselves odious. But the necessity for amending bad laws or vicious institutions is no reason why just laws, or any law which cannot rightly be repealed, should not be enforced. The fallacies of protection afforded no reason for not punishing smugglers, though the existence of smuggling gave good ground for considering whether the customs law did not require revision. There seems to the thoughtless crowd—whether rich or poor, and all men are thoughtless about most things, and many men about all things—to be a certain inconsistency between reform and coercion; there is something absurd in the policy of "cuffs and kisses." But the inconsistency or absurdity is only apparent. The necessity for carrying through by legal means an agrarian revolution—and the passing of the Irish Land Act was in effect an admission by the English Parliament, that this necessity exists—is a solid reason for the strict enforcement of justice. Reform tends, as its immediate result, to produce lawlessness. A wise driver holds his reins all the tighter because he is compelled to drive along the brink of a precipice. Whether Coercion Acts, which it must be remembered have been known before now in England, and were known in Ireland during the era of her Parliamentary independence, and which are the sign of the difficulty of enforcing the law, are or are not to be tolerated as a necessary evil, depends on the answer to the inquiry, whether the Government of the United Kingdom can by just administration, and by just legislation, remove the source of Irish opposition to the law? Answer the question affirmatively, and the outcry against coercion becomes unmeaning; answer the question negatively, and you produce an argument which tells with crushing power in favour not of Home Rule, but of Separation.

6. The argument from inconvenience.

The argument from the inconvenience to England.[^[27]]—Apologies for Home Rule drawn from foreign experience, deference due to the popular will, from the historical failure of England to govern Ireland with success and the like, have about them when employed by English members of Parliament a touch of unreality; they are reasons meant to satisfy the hearer, but do not convince the speaker. When however we come to the argument for Home Rule drawn from the inconvenience of the present state of things to England generally, and to English members of Parliament in particular, we know at once that we are at any rate dealing with a real tangible serious plea which has (if anything) only too much weight with the person who employs it. There is nothing in the whole relation of England to Ireland about which politicians are so well assured, as that the presence of a body of Parnellites at Westminster is an unutterable nuisance, and works intolerable evil. Of the reality of their conviction we have the strongest proof. The sufferings of Irish tenants, the difficulties or the wrongs of Irish landlords, the evils of coercion, the terror of assassination, but slightly ruffled the composure with which English statesmen faced the perplexities of the Irish problem. They first began to think that the demand for Home Rule might have something in it when the refusal to erect a Parliament at Dublin meant the continuance of obstruction in the Parliament at Westminster. The terror of obstruction has to speak the plain truth, done more to effect the bonâ fide conversion of English M.P.'s into advocates of Home Rule than any other single influence.