England's Case Against Home Rule

by A. V. Dicey

A Federal constitution must, from its very nature, be marked by the following characteristics.

It must, at any rate in modern days, be a written constitution, for its very foundation is the "Federal pact" or contract; the constitution must define with more or less precision the respective powers of the central government, and of the State governments of the central legislature and of the local legislatures; it must provide some means (e.g., reference to a popular vote) for bringing into play that ultimate sovereign power which is able to modify or reform the constitution itself; it must provide some arbiter, be it Council, Court, or Crown, with authority to decide whether the Federal pact has been observed; it must institute some means by which the principles of the constitution may be upheld, and the decrees of the arbiter or Court be enforced against the resistance (if need be) of one or more of the separate States. These are not the accidents but the essential features of any Federal constitution; and are found under the constitution of the Canadian Dominion and of the Swiss Confederacy, no less than under the constitution of the United States. They all depend on the simple, but often neglected fact, that a Federal constitution implies an elaborate distribution and definition of political powers; that it is from its very nature a compromise between the claims of rival authorities, the Confederacy and the States, and that behind all the mechanism and artifices of the constitution there lies, however artfully concealed, some sovereign power which must have the means both to support the principles of the constitution and, when occasion requires, to modify its terms. Hence almost of necessity flow some further results. Under a federation the law of the land must be divided into constitutional laws (or, in other words, articles of the constitution), which can be changed, if at all, only with special difficulty, say by an appeal to the popular vote or by a constituent assembly, and ordinary laws which may be changed by the central Congress or by the separate assemblies of the States. The powers both of the central Parliament and of the local parliaments, depending as they do upon the constitutional compact, must be limited. Neither the National Assembly of Switzerland nor the Congress of the United States have anything like the sovereign power of the British Parliament: the same thing is obviously true of the Cantonal or State Assemblies. Such are, under one form or another, the essential characteristics of a Federal Government. A confederation of which England and Ireland formed a part would further of necessity exhibit a feature not to be found in the United States. The authority of the Confederacy would in reality mean the power of one State—namely, Great Britain. No artificial distribution of the whole country into separate States would get rid of a fact depending upon laws or facts of nature beyond the reach of constitutional arrangements.

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.

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.