England's Case Against Home Rule

by A. V. Dicey

And to Ireland.

The last disappointment of Englishmen would be to find that Home Rule had not satisfied Ireland. For to Irishmen no less than to Englishmen the Constitution must bring disappointment and inconvenience.

That the Gladstonian Constitution cannot satisfy Ireland is all but certain.

To say this is not to imply that its acceptance by Irish Home Rulers is dishonest. In their eyes it is a move in the right direction; they exaggerate, as their English allies underrate, the freedom of action which the Constitution offers to Ireland. It cannot, as already pointed out, by any possibility remove the admitted causes of Irish discontent. It cannot tempt capital towards Ireland, but it may easily drive capital away from her shores; it cannot diminish poverty; it cannot in its direct effect assuage religious bigotry; it cannot of itself remove agrarian discontent. The Land Purchase Bill, even when discarded, remains an involuntary exposure of the futility of the Gladstonian Constitution, and of the unsoundness of the principle on which the demand for Home Rule rests. No friend of Italy ever suggested that Italian independence should be accompanied by a loan from Austria to the Italian Kingdom. For the principle of nationality was the true source of Italian disaffection. If in dealing with Ireland we must calm agrarian misery before satisfying national aspirations, this necessity is all but a confession that Irish unrest is due far more to desire for a change in the land laws than to passionate longing for national independence. I do not doubt that the spirit of nationality has some, though probably a small, part in the production of Irish discontent. But the Gladstonian Constitution is unfortunately so devised as to outrage quite as much as it soothes national sentiment. The tribute will affect every Irishman in his pride no less than in his purse. Can any one suppose that Northerners indignant at recent treachery, and Catholics mindful of ancient oppression, will not join, and justly join, in denouncing as at once ignominious and ruinous the payment of a tribute raised for Imperial purposes at the moment when Ireland ceases to have any voice in the direction of Imperial policy? Irishmen again will find to their surprise that the Constitution intended to give them independence imposes annoying fetters on their freedom of action. They wish for a protective tariff, and they come across the prohibition to make laws affecting trade; they desire that the country shall defend herself, and they discover that they cannot raise even a body of volunteers; they wish to try the plan of concurrent endowment, and they are thwarted by the article of the Constitution prohibiting the endowment of religion. These restrictions are the more annoying because none of them are imposed upon the Colonies. Irishmen will further discover that great achievements of constructive legislation require for their success the command of large pecuniary resources, and that exemption from British control involves the withdrawal of all assistance from the British Treasury.

Constitution will cause friction.

The Constitution will produce irritation and friction.

Every scheme for uniting into a political whole States which are intended to retain, even when connected together, a certain amount of independence, aims at minimising the opportunities for constitutional collision, or for friction between the different States which are connected together, and also between any State and the Central power. If we compare the mode in which this end is attained, either under the Federal system or under the Colonial system, with the arrangements of the Gladstonian Constitution, we shall easily see how little its authors have attended to the necessity for avoiding occasions of constitutional friction.

Where Federalism, as in America, appears in its best form, the skill with which opportunities for collision or friction have been minimised is almost above praise. The Federal or Central power is so constructed as to represent the whole nation; its authority cannot by any misrepresentation be identified with the power of one State more than another. The Federal Government acts through its own officers, is represented by its own Judiciary, and levies its own taxes without recourse to State authorities. Every device which could be thought of has been taken to make it unnecessary for the National Government to come into direct collision with any State. It deals in general with the individual citizens of the United States; it does not deal with the particular States. The result is that on the one hand, whatever may be said against the taxes imposed by Congress, they cannot by any stretch of imagination be looked upon as tribute paid by one State to another, say by Massachusetts to New York, or by New York to Massachusetts. It is again unnecessary for the Federal Government to issue commands to a State. There is, therefore, little opportunity for a contest between a State and the National Executive. Whoever wishes to understand the elaborate devices necessary to make Federalism work smoothly should compare the clumsiness of the arrangements by which the Swiss Confederacy has at times been compelled to enforce obedience of the Cantons to the will of the Confederation, with the ingenuity of the methods by which the Federal authorities of the United States exert their authority over American citizens.

The English Colonial system on the other hand, though far less elaborate than any form of Federalism, does, as a matter of fact, reduce within very narrow limits the chances of collision between England and her colonies. The system, however, succeeds, not because it is a model of constructive art, but because it attempts very little, and can, owing to favourable circumstances, leave to nominal dependencies something little short of complete self-government. Where collisions do arise they are disposed of by the habit of the Imperial Government always to give way.

The Gladstonian Constitution is, as we have already pointed out, a combination between Federalism and Colonialism; it may possess some of the merits, but it much more certainly displays some of the demerits of each system. From Federalism is borrowed the idea of leaving the settlement of constitutional questions to a Court. But the conception is spoilt in the borrowing. All the difficulties which under a Federal system beset the enforcement of judgments pronounced by a Federal Court affect in an aggravated form the attempt to enforce in Ireland judgments affecting the validity of Irish Acts, which judgments are pronounced by a Committee of the English Privy Council sitting in England. The Privy Council, moreover, while it has every weakness of the Supreme Court of America, has more than one special weakness of its own. It lacks moral authority, for it is an English Court sitting in England and representing English opinion; it lacks jurisdiction, because while it can pronounce on the validity of Irish, it cannot pronounce on the validity of British Acts of Parliament; it does not possess a strictly judicial character, because it is not only a Court called upon to give judgments, but is also an administrative body called upon to deliver opinions upon the validity of Irish Bills and of Irish Acts. Hence its decrees come into direct collision with the proposals or enactments of the Irish Parliament, and the Privy Council is made to appear not as a body of Judges deciding cases between man and man, but as a body of officials whose duty it is to oppose any unconstitutional action on the part of the Irish Parliament. From Federalism again is borrowed the contribution by Ireland towards meeting the expenses of the Empire. But imposts which under a Federal system are a tax towards the payment of common expenditure are under the Gladstonian Constitution a tribute to a foreign power. From the Federal system again is taken that restriction of legislative authority which hardly affects Parliaments such as that of Victoria, and which under any circumstances is a source of irritation. From the Colonial system, on the other hand, is derived the theoretical supremacy of the British Parliament, the right of veto, and the fatal dependence of the Irish executive on every vote of the Irish legislature. From the colonies we therefore bring to Ireland sources of dispute, of friction, and of irritation, which are unknown to a true system of Federalism, whilst we do not give Ireland that practical independence, and that immunity from taxation, which prevent our ill-arranged connection with the colonies from causing real dissatisfaction. Federalism has its merits and its defects; English Colonialism works well enough; the sham Federalism and the sham Colonialism of the Gladstonian Constitution must create between Great Britain and Ireland all the causes of discontent which have from time to time tried the strength of the American Union, and all the causes of disturbance which from time to time reveal the weakness of the tie which binds together our Colonial Empire.