England's Case Against Home Rule

by A. V. Dicey

This is an enquiry which may be answered with some confidence.

To any one who surveys the Constitution, not as a politician, but as a legist; to any one moderately versed in the study of comparative constitutionalism, few statements which savour of prediction will appear more certain than the assertion that the Gladstonian Constitution cannot be a final or even a lasting settlement of the constitutional relations between England and Ireland.

The grounds of this opinion are, briefly, that the proposed Constitution will, while leaving alive elements of discord, cause disappointment and inconvenience to both countries, and that the mechanism of the Constitution, framed as it is upon a combination of Federalism and of Colonialism, has some of the defects of each system, and promises in its working to produce something like the maximum of irritation and friction.

The two grounds for believing that the Gladstonian Constitution bears no promise of finality run into one another, but they admit of separate examination, and each requires explanation or justification.

Constitution will cause disappointment to England.

The Constitution will cause disappointment and inconvenience both to England and to Ireland, Englishmen will on the Gladstonian Constitution coming into operation find to their great disappointment that they have not attained the object which from an English point of view was the principal inducement to grant Home Rule to the Irish people, that is, freedom from the difficulty of governing Ireland. The difficulty no doubt will be diminished, or rather shifted; but the dream is vain that under the new Constitution Englishmen would be able to trouble themselves no more about the concerns of Ireland than they do about the affairs of Canada. Ireland would still be our immediate neighbour. Irishmen would still be divided by differences of class and religion, and England would still, disguise the fact as you may, be ultimately responsible for good government in Ireland. Home Rule is not Separation, and nothing short of Irish independence would greatly lessen English responsibility. This would be true under whatever form Home Rule were established, but it is emphatically true of Home Rule under the particular form contemplated by the Gladstonian Constitution. The army in Ireland—and no one supposes that England can withdraw her soldiers from the country—will be the British Army under the control of the British Government. But the power of the sword is, though we often forget the fact, the sanction by which law is maintained. Hence it follows that the British Ministry remains at bottom responsible for the maintenance of peace and order throughout Ireland. Note the results. If there are riots at Belfast; if unpopular officials are assassinated in Dublin; if evictions give rise to murder in Kerry, the British Army must in the last resort be called in to restore peace or punish crime. If the army are not under the control of the Irish Executive, then the English Cabinet become directly responsible for the government of Ireland. If British soldiers are placed at the disposal of the Irish Ministry, still the English Government must, shift the thing as you will, share the responsibility of the Irish Cabinet. During a riot at Belfast a hundred Protestants or Catholics are shot by British soldiers whilst restoring order. If any one fancies that such slaughter can take place without the English Ministry being called upon in the British Parliament for explanation and defence, he shows utter ignorance of English, or indeed of human nature. Nor is it for the action only of the troops that the English Executive will incur liability. If British subjects are killed by a mob in Belfast or in Dublin whilst British troops stand quietly by and under the direction of an Irish Home Secretary take no steps to prevent murder, we may rest assured that the Queen's Government in England will be asked whether it is decent that the Queen's forces should be trained to stand as indifferent spectators of outrageous breaches of the Queen's peace.

Take again the question of pardoning crime. Suppose that the first Irish Ministry on their accession to power propose to inaugurate the new era by a free pardon of all the political offenders, dynamiters and others, whose misguided zeal placed them within the gripe of the law, but also in no small measure contributed to achieve the Parliamentary independence of Ireland. If the request is not granted, then the Irish Administration are refused the means of carrying on the government of the country after their own notions of sound polity. If the request is granted, can the English Government be held entirely irresponsible for the mode in which the Crown exercises its prerogative? Let it be settled that the prerogative of mercy must in Ireland be exercised in accordance with the wishes of the Irish Ministry. Even then the English Government will not really escape responsibility. British soldiers put down a riot at Belfast; they are indicted for the murder of a Catholic rioter, before a Catholic grand jury, convicted by a Catholic jury under the direction of a Catholic judge who has just been appointed by the new Irish Ministry. Popular opinion demands the execution of the convicted murderers, the Irish Ministry advise that the law should take its course. The general belief in England, shared we will suppose by the English Home Office, is that the convicted soldiers are about to be capitally punished for having simply discharged their duty. Is an English Minister to abstain from advising a pardon? The dilemma is difficult. If he recommends a pardon, the Irish Government are prevented by England from governing Ireland. If the soldiers are hanged, the English Ministry will not keep long in office, the British Army will hardly maintain its habit of absolute obedience to the civil power.

Englishmen, in the next place, will soon discover that the creation of a statutory constitution for Ireland curiously hampers the working of our own institutions. Questions must arise whether Acts of the British Parliament do or do not trench upon the provisions of the Irish Constitution. Few persons are aware of the number of Imperial Acts which touch the Colonies. To such statutes there is no legal or moral objection, because the principle embodied in the Colonial Laws Act, 1865, that enactments passed by the Parliament of the United Kingdom override any Colonial law with which they conflict, is universally admitted; but, as already pointed out, it is questionable as a matter of law whether the statutes of the British Parliament can repeal Acts duly passed by the Irish Parliament, and it is quite beyond question that for the British Parliament to infringe upon the province of the Irish legislature would involve a breach of good faith. Changes again in the formation of the British Parliament might under the Gladstonian Constitution become difficult. The abolition of the House of Lords would be hard to reconcile with the right of the Irish Peers to be summoned on occasion to the Imperial Parliament. An increase in the number of British representatives in the House of Commons would be objected to by Irishmen because it diminished the relative importance of the members from Ireland when recalled to take part in the deliberations of the Imperial Parliament. The reduction of the number of members of the House of Commons, though one of the most salutary reforms which could be carried out, would be opposed by every person interested in maintaining the present excessive number of the Lower House, on the ground that to reduce the numbers of the House of Commons, to say 400, would involve an increase in the authority of the Irish members whenever they reappeared on the scene. The moot question whether the British Parliament could on an emergency repeal of its own authority the articles of the Irish Constitution; the extent to which Ireland should be represented on the Judicial Committee of the Privy Council; above all, the vital question whether the reassembled Imperial Parliament were not the true representative of the Parliament of the United Kingdom, and the ultimate sovereign power in the State, would in periods of excitement give rise to disputes hitherto quite alien to English politics, and involving elements of unknown danger.

Ambiguity and obscurity, since they help to pass Bills, are in the judgment of Parliamentary draughtsmen and Parliamentary statesmen characteristics which promote the easy working of Acts. Knives which are made to sell are not knives which are made to cut. No delusion is more dangerous. The founders of the American Union knew their own minds, and were not well acquainted with the advantages to be derived from the obscurities of modern draughtsmanship. But on two points they tried the experiment of keeping real perils out of sight by omitting to refer to them. "Slave" and "slavery" are words not to be found in the Constitution of the United States. What (if any) was the right of a State to retire from the Union, was a matter purposely left open for the interpretation of future generations. The Abolition movement, the Fugitive Slave Law, the War of Secession tell the result of trying to ignore perils or problems which it is not easy to face or to solve.