country without regard to the interests or customs, the peculiar objects and peculiar experiences, of the great majority of the people who live in it. It is not enough to say that the failures of England in Ireland (p. 79) have to a great extent flowed from causes too general to be identified with the intentional wrong-doing either of rulers or of subjects.' We readily admit that, but it is not the point of the argument. It is not enough to insist (p. 91) that James the First, in his plantations and transplantations, 'probably meant well to his Irish subjects.' Probably he did. That is not the question. If it is absolutely certain that his policy worked gross wrong,' what is the explanation and the defence? We are quite content with Mr. Dicey's own answer. Ignorance and want of sympathy produced all the evils of cruelty and malignity. An intended reform produced injustice, litigation, misery, and discontent. The case is noticeable, for it is a type of a thousand subsequent English attempts to reform and improve Ireland.' Few, as Burke said, are the partisans of departed tyranny; we are all famous liberals in the affairs of King John or King Henry the Eighth. Mr. Dicey describes the wrong done by King James. This description would apply, with hardly a word altered, to the wrong done by the Encumbered Estates Act in the reign of Queen Victoria. That memorable measure, as Mr. Gladstone said, was due not to the action of a party, but to the action of a Parliament. Sir Robert Peel was hardly less responsible for it than Lord John Russell. We produced it,' said Mr. Gladstone, 'with a general, lazy, uninformed, and irreflective good intention of taking capital to Ireland. What did we do? We sold the improvements of the tenants' (House of Commons, April 16). It is the same story, from the first chapter to the last, in education, poor law, public works, relief acts, even in coercion acts-lazy, uninformed, and irreflective good intention. That is the argument from history. It is not necessarily an argument for the Gladstonian constitution, but it is an argument which I venture to think that Mr. Dicey has not touched, and which he certainly has not weakened, for striving either in that or some other way to give Irishmen a chance of making their own laws. With a truly amazing forgetfulness of his own pregnant declaration that ignorance and want of sympathy have produced all the evils of deliberate malignity, he can still persuade himself that he solves the difficulty by such platitudes as that we must sedulously do justice to every fair demand from Ireland' (p. 280), or that the undoubted ills of Ireland are curable by justice.' Unfortunately, as he remarks of a Supreme Court (p. 186), while one may often secure the fairness, one cannot insure the wisdom, of the tribunal. In his own phrase, a thousand English attempts to reform and improve Ireland ought to warn us that while we may rely on the desire of Parliament to act justly, yet we cannot be sure that ignorance and imperfect sympathy will not produce misery, discon

6

tent, and injustice. When we are asked what good law an Irish Parliament would make that could not equally well be made by the Parliament at Westminster, this is the answer. It is not the will, it is the intelligence, that is wanting. Mr. Dicey tells us what the past has been. Why should the future be different? To put it shortly, whether Ireland is or is not a nation, and whether the force to be attributed to the sentiment of nationality be much or little, her condition is so special as to demand special treatment. The author expressly asserts this in a sentence already quoted. He also admits that much at any rate of the peculiar evils of Ireland is due to the ignorance of her English rulers. Yet the special treatment which he has exhorted us to apply is actually to be devised and carried out by the selfsame ignorance that has produced the special malady.

Mr. Dicey has always been a steady Liberal, and must be presumed therefore to have abjured the Benevolent Despot and all his works. The benevolent despot means to be just, but that does not make his government good. What difference does it make in the force of the objections to this bad ideal, that despotism is exercised by two chambers and not by an individual? It is an inherent condi

6

tion of human affairs,' said Mill in a book which, in spite of some chimeras, is a wholesome corrective of the teaching of our new jurists, that no intention, however sincere, of protecting the interests of others can make it safe or salutary to tie up their own hands. Still more obviously true is it, that by their own hands only can any positive and durable improvement of their circumstances in life be worked out' (Repres. Government, p. 57). It is these wise lessons from human experience to which the advocate of Home Rule appeals, and not the wild doctrine which Mr. Dicey fantastically imputes to them, that any body of persons claiming to be united by a sense of nationality possesses an inherent and divine right to be treated as an independent community. It is quite true that circumstances sometimes justify a temporary Dictatorship. In that there is nothing at variance with Liberalism. But the Parliamentary dictatorship in Ireland has lasted a great deal too long to be called temporary, and its stupid shambling operations are finally and decisively condemned by their consequences. That is a straightforward utilitarian argument, and has nothing whatever to do with inherent and divine rights, or any other form of political moonshine.

"Unity of Government-equality of rights-diversity of institutions these are the watchwords for all Unionists' (p. 283). But in what is the diversity to consist? Of what nature is that special legislation that, in his own words, is to remove the peculiar evils which are the result of Ireland's peculiar history? Mr. Dicey gives us so scanty a glimpse of what he intends, that we can hardly consider diversity of institutions in his mouth as any better than a phrase. We may discern three suggestions, I believe, and no more. The

first, as to which more will be said presently, is an amendment of the criminal law. But, strangely enough, here is to be no diversity. On the contrary, one of the essential conditions demanded by Mr. Dicey is that the provisions of his new Criminal Law Amendment Act, whatever they may be, are to apply over the whole of the United Kingdom. Yet if there is one institution which works differently in Ireland, on the one hand, and Great Britain on the other, it is the vital institution of trial by jury-vital, because the whole force and life of the law resides in the rectitude, promptitude, impartiality, and reasonable certainty of its application. If Mr. Dicey has read the Report of the Select Committee of the House of Lords which was appointed to inquire into the Irish Jury Laws in 1881, he must be aware how closely the working of these laws touches the whole question of social order in Ireland in all its length and breadth. Yet in this important province he requires complete identity between England and Ireland, in defiance of his own excellent dictum as to these two countries, that to deal with societies in essentially different conditions in the same manner is in truth to treat them differently' (p. 31). Thus, he mentions among the proposed reforms in the criminal procedure of the United Kingdom that we must get rid of every difficulty in changing the venue. I make no remarks on the merits of the proposal. I only wish to point out that there is all the difference in the world between its application to England. and to Ireland. To Mr. Dicey it is apparently the very simplest thing in the world. Yet he must be aware that in Ireland to change the venue may be the only step necessary for the perpetration of gross injustice. To send an Orange prisoner from Belfast to be tried at Cork, or a Kerry prisoner to be tried at Belfast, is to make sure of the verdict beforehand. In England the power of changing the scene of the trial is a security for the prisoner; in Ireland it is an expedient against him. It is easy, too, to propose to give the courts the right under certain circumstances of trying prisoners without a jury. But judges cannot convict without witnesses, and it is one of the most stubborn difficulties in the way of criminal administration that witnesses are not forthcoming. Does Mr. Dicey seriously expect, moreover, that Englishmen will surrender the most precious of their own guarantees for good government and justice merely on the chance, for it is no more, of occasionally helping an Irish Attorney-General to catch a stray offender? These are only two among many illustrations of the smoothness with which plausible general words carry 'the thoughtful observer' over the rough and troublesome ground of real fact. Let the procedure in criminal

2 By section 1 of the Crimes Act of 1882 the Lord Lieutenant was empowered to give to a special Commission Court of three judges the duty of trying a prisoner without a jury. Several of the judges vehemently protested against the clause; it was never put in force.

cases be strengthened, if you please, but that will not consolidate the Union, and it will not strengthen the law. It does not go near the root of the evil, the conflict between law and opinion, and nobody has ever said this more emphatically than Mr. Dicey.

No jurist (he says) can question for a moment that the ultimate strength of law lies in the sympathy, or at lowest the acquiescence, of the mass of the population. Judges, constables and troops become almost powerless when the conscience of the people permanently opposes the execution of the law. Severity produces either no effect or bad effects, executed criminals are regarded as heroes or martyrs, and jurymen or witnesses meet with the execration, and often with the fate, of criminals.

It is clear that no operations in this direction will carry us far towards the goal of social order.

Let us pass on to his second positive suggestion. The thoughtful observer, he says (p. 27), may conjecture that in Ireland, as in France, an honest centralised administration of impartial officials, and not Local Self-Government, would best meet the real wants of the people. In other words, everything is to be for the people, nothing by the people-which has not hitherto been a Liberal principle. Something, however, may be said for this view, provided that the source of the authority of such an administration be acceptable. The author implies in another connection that this is a consideration that cannot safely be neglected; for he makes no answer to the argument drawn from Austrian administration in Lombardy; that administration was good rather than bad, yet it was hated and resisted because it was Austrian and not Italian. Mr. Dicey has far too philosophical a mind to hold for an instant that the source of a working scheme of government is immaterial to its prosperity. More than that, when he looks for success in the government of Ireland to 'honest centralised administration,' we cannot but wonder what fault he finds with the administration of Ireland to-day in respect of its honesty or its centralisation. What administration ever carried either honesty or centralisation to a higher pitch than the Irish administration of Mr. Forster? What could be less successful? If Mr. Dicey would consult those who have been directly concerned in the government of Ireland, he would find that most of them, whether English or Irish, habitually talk of centralisation, even while alive to the perils of any other principle, as the curse of the system. Here, again, why should we expect success in the future from a principle that has so failed in the past?

Again, by a really tremendous oversight, which is curious in him, though it is common enough among less scientific politicians, Mr. Dicey has not asked himself how he is to get a strong centralised administration in the face of a powerful and hostile parliamentary representation. He speaks (p. 84) of the benefits that might have been conferred on Ireland by such humanity and justice as was

practised by Turgot in his administration of the Generality of Limoges. But Turgot was not confronted by eighty-six Limousin members of an active sovereign body, all interested in making his work difficult, and trusted by a large proportion of the people of the province with that as their express commission. It is possible to have an honest centralised administration of great strength and activity in India, but there is no Parliament in India. If India or any province of it ever gets representative government and our parliamentary system, from that hour, if there be any considerable section of Indian feeling averse from European rule, the present administrative system will be paralysed, as the preliminary to being revolutionised. It is conceivable, if any one chooses to think so, that a body of impartial officials could manage the national business in Ireland much better without the guidance of public opinion and common sentiment than with it. But if you intend to govern the country as you think bestand that is the plain and practical English of centralised administration -why ask the country to send a hundred men to the great tribunal of supervision to inform you how it would like to be governed? The Executive cannot set them aside as if they were a hundred dummies; in refusing to be guided, it cannot escape being harassed, by them. Mr. Dicey bids us amend procedure, but that is no answer, unless you amend the Irish members out of voice and vote. They will still count. You cannot gag and muzzle them effectually, and if you could they would still be there, and their presence would still make itself incessantly felt. Partly from a natural desire to lessen the common difficulties of government, and partly from a consciousness, due to the prevailing state of the modern political atmosphere, that there is something wrong in this total alienation of an Executive from the possessors of parliamentary power, the officials will incessantly be tempted to make tacks out of their own course; and thus they lose the coherency and continuity of absolutism without gaining the pliant strength of popular government. This is not a presumption of what would be likely to happen, but an account of what does happen, and what justified Mr. Disraeli in adding a weak Executive to the alien Church and the absentee aristocracy, as the three great curses of Ireland. Nothing has occurred since 1844 to render the Executive stronger, but much to the contrary. There is, and there can be, no weaker or less effective Government in the world than a highly centralised system working alongside of a bitterly inimical popular representation. I say nothing of the effect of the fluctuations of English parties on Irish administration. I say nothing of the tendency in an Irish government, awkwardly alternating with that to which I have just adverted, to look over the heads of the people of Ireland, and to consider mainly what will be thought by the ignorant public in England.

VOL. XXI.-No. 119.

D