Introduction
In 1885, Albert Venn Dicey published his seminal Lectures Introductory to the Study of the Law of the Constitution, still seen as the classic formulation of British parliamentary sovereignty.Footnote 1 The following year, Prime Minister William Gladstone infamously split the Liberal Party by adopting the policy of Home Rule for Ireland. On the Unionist side, Dicey became one of Gladstone's most trenchant opponents—unsurprisingly, given his view of the importance of parliamentary sovereignty. On the Home Rule side, one of the intellectual heavyweights was Dicey's friend and former pupil James Bryce. While Dicey's view on Home Rule and its tricky relation to his broader constitutional thought has received more attention recently,Footnote 2 Bryce's contribution to the debate, like much of his voluminous oeuvre, remains neglected. Like Dicey, Bryce was a constitutional scholar of noted authority. Although less well known than Dicey today, his contemporaries certainly saw Bryce as at least Dicey's equal in importance, and one of Dicey's theoretical innovations in the Lectures originated with Bryce.Footnote 3 Moreover, at one level there is a more obvious puzzle about Bryce's support for Home Rule than about Dicey's opposition, since Bryce basically shared Dicey's view on parliamentary sovereignty. This article accordingly aims to demonstrate how Bryce reconciled Irish Home Rule with parliamentary sovereignty.
But first I must address a methodological problem. The reigning interpretation of the Home Rule controversy relies on a certain premise about political activity that precludes a full understanding of its ideological dimension. In their 1974 account of the 1886 Home Rule controversy, Alastair Cooke and John Vincent summed up the “high-politics” approach by asserting, “Explanations of Westminster should centre … on its character as a highly specialized community, like the City or Whitehall, whose primary interest was inevitably its own very private institutional life.”Footnote 4 For them, Gladstone's sudden conversion to Home Rule in 1885 was less the reflection of a sincere change of belief—or even of the influence of a newly enfranchised electorate, as many eventual Unionists felt at the time—than it was a political tactic for Gladstone to regain preeminence in the Liberal Party at a time when his sun was thought to be setting. Accordingly, Cooke and Vincent give virtually no attention to the constitutional debate over Home Rule. Bryce and Dicey's public arguments, for example, receive no consideration. Christopher Harvie later attempted to correct this oversight, but by taking Cooke and Vincent as his starting point he was unable to see the constitutional debate as more than an “amateur sideshow.”Footnote 5 For Harvie, not only was Gladstone interested in ideological arguments “only insofar as they justified the political course already taken,” but also those who became Unionists were “agnostic about Home Rule as such” and were rather drawn to the “chance, for the first time, to secure an armistice from the Tories and direct parliamentary representation” and to enjoy “a liberalism confined to the universities and freed from troublesome external commitments.”Footnote 6 But not Bryce. Harvie claims that Bryce privately opposed Home Rule but, unlike his university colleagues, was not free to do so publicly for two reasons: as an MP with hopes for a Cabinet post he had to toe the party line, and he desired to please his American friends, who were “overwhelmingly sympathetic” to Home Rule.Footnote 7 Harvie claims support for this ascription of duplicity in the observation that Bryce's constitutional argument for Home Rule was “illogical.” It was only “out of despair” that Bryce assumed his “lonely, pessimistic, constitutionally illogical support for Gladstone's policy.”Footnote 8
There are two problems with this interpretation. First is the lack of support for the claim that Bryce's constitutional argument for Home Rule was “illogical.” For Harvie, it was illogical for Bryce to argue that Ireland could have a devolved legislature without violating the sovereignty of Parliament. Bryce was, of course, aware of this tension, and in many of his speeches and writings he attempted to reconcile parliamentary sovereignty with Home Rule. Far from illogical, the resulting constitutional theory is quite sophisticated, as I here aim to show. But Harvie precludes himself from discovering this by concluding from his claim about motive that ideology is superfluous. This is the second problem with his interpretation. It is the same problem Quentin Skinner identified in Lewis Namier's study of Bolingbroke.Footnote 9 Namier had dismissed Bolingbroke's “professions of principle” as irrelevant, because merely ex post facto, rationalizations of actions taken to unseat Sir Robert Walpole, but in doing so had failed to explain why Bolingbroke chose his particular strategy of opposition: for Skinner, this latter question can only be answered by attending to the range of ideological justifications available to a political actor at a given time.
My consideration of Bryce's constitutionalism suggests an answer to the analogous question why the Home Rulers defended Home Rule in the way they did. I argue that Bryce's justification for Home Rule must be understood in the context of a public normative commitment to two constitutional doctrines: the sovereignty of Parliament and the flexibility of the constitution. These doctrines were two sides of the same coin but were treated separately in the Home Rule debates. I therefore analyze them separately below. First, I consider the problem posed by Home Rule to the orthodoxy of parliamentary sovereignty. By creating a new Parliament of Ireland, Gladstone's Home Rule scheme seemed poised to destroy the sovereignty of the Westminster Parliament. Bryce argued that Parliament's legal sovereignty would be upheld under Home Rule and that it would be bound only by a moral convention of noninterference. Moreover, he argued that such moral constraints had always been part of British politics and should not be understood as erosive of parliamentary sovereignty. I provide background for this theory in Bryce's contemporary writings on British imperial policy and American federal government, and I suggest that his distinction between moral and legal sovereignty finds more explicit justification in his juridical writings on sovereignty, which in turn must be understood in the context of the historical jurisprudence associated with Henry Sumner Maine. Second, I consider the challenge of Home Rule to the flexibility of Britain's “unwritten” constitution. The Home Rule bill seemed to entail federalism, but it was widely believed that American experience had shown federalism to require a written constitution enforced by the courts and unalterable by the central legislature. Bryce himself favored the flexibility of the British constitution, but he also saw advantages in federalism. Hence his challenge was to resolve the tension between federalism and constitutional flexibility. His solution here likewise rested on a distinction between the legal and the practical realms. Legally the constitution would remain flexible, but practically it would become rigid—though this was nothing new. By seeking to resolve the tensions created by these normative constraints, Bryce's arguments played an important role in justifying what many felt to be a constitutional revolution. The combined result was an imperial constitutionalism of what may be called “soft” federalism resting not on a codified constitution enforced by courts but on an understanding of Parliament's de facto sovereignty as constrained by moral commitments.
Defining parliamentary sovereignty
After Gladstone introduced his Government of Ireland Bill in April 1886, the question of parliamentary sovereignty quickly became a main point of controversy. The bill provided for an independent Parliament of Ireland with authority to legislate for the peace, order, and good government of Ireland, reserving Westminster's jurisdiction over trade, foreign relations, war and peace, the military, currency and copyright. Clause 37 of the bill explicitly reserved the legislative supremacy of the Imperial Parliament on all matters not specifically mentioned in the bill.Footnote 10 Clause 39 stipulated that the bill, once an Act, could not be altered except by Act of the Imperial Parliament to which members of the Irish Parliament had to express consent via an address to the Queen or a vote in the Imperial Parliament. This last method would require recalling the Irish members specially for that purpose, since Gladstone's bill would deprive them of their seats at Westminster. The juristic contributions to the debate, of which Bryce's was recognized as one of the most important, focused on the question whether these provisions left the sovereignty of Parliament intact.
Parliamentary sovereignty had been central to English constitutionalism since the revolution of 1689, with adumbrations even earlier.Footnote 11 Coleridge had preached that “the Omnipotence of Parliament, in the mouth of a lawyer … is but a puffing pompous way of stating a plain matter of fact.”Footnote 12 Most recently its orthodoxy had been solidified by Dicey's Lectures. Parliamentary sovereignty, he wrote, had a twofold meaning: first, Parliament defined as Crown, Lords, and Commons had “the right to make or unmake any law whatever,” and second, “no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.”Footnote 13 Hence Parliament could not be legally bound by moral or international law or even by its own previous acts.Footnote 14 No one disputed parliamentary sovereignty. Dicey referred to it as the “dogma which is so naturally assented to by Englishmen.”Footnote 15 Bryce himself declared in his speech on the Home Rule Bill, “There is no principle more universally admitted by Constitutional jurists than the absolute omnipotence of Parliament.”Footnote 16 It is remarkable that not one of the major defenders of Home Rule attempted to argue that Parliament should cede some of its sovereignty, or to claim Crown rather than Parliament as the basis of unity with Ireland, as some Americans had done before the Revolution.Footnote 17 Gladstone himself insisted that one of the conditions for Home Rule would be the maintenance of the supremacy of Parliament.Footnote 18 Parliamentary sovereignty thus set the normative bounds for any acceptable ideological argument for or against Home Rule.
Given this uniformity, much of the debate might look purely legal, concerned with whether the text of the bill guaranteed the maintenance of Parliament's sovereignty. But the ensuing debate ranged far beyond technicalities. Hiding underneath the apparent uniformity of commitment to parliamentary sovereignty were assorted assumptions about what parliamentary sovereignty really was. Accordingly, the most interesting contributions were made by those jurists, like Bryce and Dicey, who grasped the divergences at this deeper level. Some Unionists, like Sir William Anson, argued on grounds of constitutional history that Home Rule would destroy Parliament's de jure sovereignty. Others, like Sir Henry James, disagreed but insisted that Parliament's de facto sovereignty would be destroyed by the moral commitment symbolized by Home Rule. Bryce conceded to James that Home Rule would morally constrain Parliament but maintained that such a moral commitment should not be understood to erode Parliament's sovereignty. I consider each of these arguments in turn and then suggest that Bryce's argument cannot be understood apart from his place in the historical school of jurisprudence associated with Henry Sumner Maine.
The legal sovereignty of Parliament
Some went so far as to argue that Parliament would lose its legal sovereignty under Home Rule. Writing after the 1886 bill had been defeated but in anticipation of the next one, Sir William Anson targeted Bryce's claim that Parliament could not possibly cede its own legal sovereignty. In his speech Bryce had claimed, “We [Westminster] have the right to legislate for Ireland, and we shall have it when the Bill becomes an Act. We shall retain as a matter of right the power to legislate for Ireland for all purposes whatever, for the simple reason that we cannot divest ourselves of it.”Footnote 19 History, Anson averred, proved otherwise. In 1782, Parliament had repealed the Declaratory Act of 1719 to grant Ireland an independent legislature, “Grattan's Parliament,” which existed until the Union of 1800. “By this repeal,” Anson claimed, “the British Parliament professed to hand over its legislative sovereignty to the Irish Parliament,” demonstrating that an “Act of the British Parliament was capable of raising the Irish Legislature from complete dependence to complete independence.”Footnote 20 Importantly, those statesmen who had overseen the reunion with Ireland in 1800 never suggested that Parliament had retained such a right. Anson acknowledged that these men “lived before the days of [John] Austin and had not the advantage of the assistance of Professor Dicey's ‘Law of the Constitution.’”Footnote 21 But they had Blackstone, who was clear that “Acts of Parliament derogatory from the power of subsequent Parliaments bind not.”Footnote 22 If Parliament could cede its sovereignty despite the claims of its leading jurist in 1800, Anson concluded, so it could in 1886.
Anson's argument had a second prong. The doctrine that Parliament cannot bind its successors could only apply where it had a true successor. In 1782, Parliament ceded sovereignty to a new legislature but remained intact. With Gladstone's Home Rule bill, by contrast, Parliament would not only legalize a Parliament of Ireland but would also destroy itself: since it did not provide for the retention of the Irish MPs, it would no longer be the Parliament of Great Britain and Ireland but the Parliament of Great Britain and thus would not have the sovereignty accorded to it by Bryce's “theory of inalienable sovereignty.”Footnote 23 Parliament would have no successor; the two parliaments that succeeded it would be bound by the terms under which they were constituted. Essentially, Anson's point was that the Parliament of Great Britain and Ireland would be, with respect to the successor parliaments of Great Britain and Ireland, a constituent assembly, and the successor Parliament of Great Britain could only amend the constitution if it reunited as such an assembly—that is, if it recalled the Irish members.
Bryce does not seem anywhere to have answered Anson directly, but although he favored letting the Irish members keep their seats at Westminster (and as one of the architects of the 1893 Home Rule Bill ensured they kept their seats),Footnote 24 he rejected the general claim that Home Rule would destroy Parliament's legal sovereignty over Ireland. In a lecture given in 1884 (though not published until 1901) he considered whether it was possible to protect certain parts of the constitution by placing them beyond the reach of ordinary legislation. Such protection could only be created via an Act of Parliament, but any such Act, being itself “an Act like any other Act,” “could be repealed by another ordinary statute in the ordinary way.”Footnote 25 Therefore it was not possible to place anything beyond the reach of Parliament. Before publishing this lecture in 1901 Bryce inserted a footnote stating that in the Home Rule controversy of 1886, “It was generally agreed by lawyers that Parliament could not so limit its own powers, and that no statute it might pass could be made unchangeable, or indeed could in any way restrict the powers of future Parliaments.”Footnote 26 Theoretically there was one way Parliament could bind its successor: it could “by a sort of suicide” repeal all the Acts under which it was summoned, abolish the common law right of the Crown to summon it, and thus cause itself to be dissolved, having first enacted a constitution with the desired restrictions and the means for summoning the new legislature(s).Footnote 27 Parliament, in other words, could take its last breath as a constituent assembly by enacting a new constitution that provided for a new legislature(s) bound by whatever terms, and then dissolve itself once and for all. Ceding legal sovereignty was possible, then, but it would require much more than Home Rule.
Mark Walters has recently observed that Bryce discussed this question in private correspondence with Dicey, who shared Anson's view that with Clause 39 Parliament would abdicate legal sovereignty, thereby empowering a judge to void an Act of Parliament contrary to the Home Rule Act.Footnote 28 In response, Bryce forwarded to Dicey a memorandum written by the parliamentary counsel, Henry Jenkyns, noting Jenkyns's private reaction that “‘a more startling argument [than Dicey's] … more contrary [to] Constitutional law’ could hardly be contemplated.”Footnote 29 For Walters, the significance of Dicey's position on this question is that it shows that, for Dicey, parliamentary sovereignty, and by extension Parliament itself, is an “ordinary legal concept” susceptible to interpretation by the courts rather than a “political fact” or a “rule of recognition constituted by a social fact.”Footnote 30 For my purposes, what this debate shows is that alongside the concept of sovereignty the concept of Parliament itself was implicated in the Home Rule debates but not treated in a satisfactory manner. What made Parliament Parliament? For Dicey, not only was this a question for the courts, but also he thought the courts would likely find that under the Act the gathering at Westminster was no longer Parliament, at least not without the Irish members. Anson agreed, and dismissed the possible objection that electoral reform reconstituted Parliament in the same way as Home Rule would on the grounds that “no one would contend” such a claim.Footnote 31 Although not addressing whether it was strictly a judicial question, as Dicey believed, Bryce implied that it was the summons by the Crown that made Parliament Parliament, because of the Crown's common law right to do so, and that whoever the Crown summoned to Westminster was Parliament and therefore (with the Crown) sovereign.
The practical sovereignty of Parliament
Anson was rare, if not alone, in arguing that Home Rule would destroy Parliament's legal sovereignty. Other Unionists argued that although Home Rule would not destroy Parliament's legal sovereignty it would impose a moral obligation so strong as effectively to destroy parliamentary sovereignty. In his speech on the bill, Sir Henry James defined parliamentary sovereignty as resting on two conditions, following Dicey: first, that Parliament must always have the right to alter its own constitution, and second, that it must be subject to the control of no man or body.Footnote 32 James advanced two arguments that the bill would not preserve these conditions—one pertaining to general legislation, the other to constitutional legislation. First, Gladstone's via media between union and separation was impracticable because retaining the “abstract” right of legislation over Ireland would at some point necessitate exercising it: “you must exercise the right if you have it.”Footnote 33 Inevitably Ireland would pass some “act of injustice and spoliation”—James suggested a land Act that permitted taking farmland from landlords at prairie value—that would impose on Westminster the duty to intervene.
Second, James thought it was dubious whether the Imperial Parliament would retain the ability to alter its constitution. The requirement that Irish members be recalled for any vote to repeal or alter the Act would, he alleged, leave Parliament powerless to alter its own constitution and potentially subject to an outside power in the form of an Irish judge. Both of Dicey's conditions of parliamentary sovereignty would be destroyed. The Imperial Parliament would technically retain the legal power to repeal a Home Rule Act, but an Irish judge could impose significant moral power over Parliament by treating the Act as a “legislative contract” and voiding any unilateral amendment or repeal by Westminster as breach of contract. While this would impose no new legal constraint on Westminster, its moral effect would be unavoidable. “Dare we, in the face of the Irish nation, or in the face of our own people … depart from the terms of that contract? It would be so unconstitutional in the sense of being immoral, and so immoral in the sense of being unconstitutional.”Footnote 34 The assumption underlying James's rhetoric, that the constitution encompasses not only law but also morality, was not idiosyncratic. In his Lectures, Dicey had referred to important constitutional conventions as “constitutional morality.”Footnote 35 If Parliament was constrained by such morality, then for James it was not completely sovereign. For him parliamentary sovereignty had both a legal and a moral dimension, and a moral constraint would be just as destructive of sovereignty as a legal constraint.
These were the two arguments Bryce considered when he made his pitch for Home Rule in Parliament four days later.Footnote 36 He first rejected James's denial of any distinction between abstract right and “any other kind of right.” “There, indeed, is a difference between … rights which you put in constant exercise, and rights which you suffer to lie dormant.”Footnote 37 As “a matter of pure right,” Parliament would retain its sovereignty over Ireland “for the simple reason that we cannot divest ourselves of it.” But as a matter of practice, Parliament “shall have conceded to the Irish Legislature the right to legislate on subjects upon which we do not intend to exercise the right of legislating ourselves.”Footnote 38 Put differently, “as a matter of strict law,” Parliament would retain its supremacy over Ireland, “but subject to the moral obligation of not exercising its right save in case of necessity.”Footnote 39 Although Bryce did not state it explicitly, he here implied that faced with James's hypothetical unjust Irish land Act, Parliament's duty would not be to intervene but to allow the injustice for the sake of Irish national self-determination, assuming it was truly an Irish matter and not of concern to the greater empire. Bryce observed that such noninterference was the custom of British policy towards the self-governing colonies, particularly Canada. He thus presented Home Rule as based not on a cession of legal sovereignty—which would be not only unprecedented but also impossible—nor even on the establishment of a new moral–constitutional convention, but rather on the extension of an existing convention to a new set of relations.
Was it merely opportunistic of Bryce to call for such a convention? Probably not. While immersed in the Home Rule controversy he was also studying and writing about American government. Having first toured America in 1870, he made a second trip in 1881 and a third in 1883, and his three volumes on The American Commonwealth first appeared in 1888.Footnote 40 Here Bryce examined how the US Constitution and usage secured the principle of noninterference by the federal government.Footnote 41 There were two devices designed to avoid collisions between state and federal government: the Constitution first expressly minimized federal power, but second authorized it to administer its own laws directly over citizens, in order not to rely upon the state governments to act as dependent administrators. The Constitution so strictly limited the scope of federal intervention that a European observer, Bryce suggested, would be appalled by what the states could get away with.Footnote 42 In this the Americans were “consistent not only in their Federal principles but in their democratic principles.”Footnote 43 Assuming the voice of an average American citizen, Bryce went on:
“As laissez aller,” [Americans] say, “is the necessary course in a Federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a State make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it … We cannot be democrats by halves; and where self-government is given, the majority of the community must rule.”Footnote 44
It would hardly have strained the imagination of a British reader to substitute “Ireland” for “State” and be faced with a strident argument for Home Rule.
Bryce was not alone among Home Rulers in appealing to the American example and to the educative value of self-government. Emily Jones notes that while advocating Home Rule Gladstone appealed to the disastrous results of Great Britain's failure to heed Edmund Burke's counsel to conciliate the American colonies a century before.Footnote 45 “They refused this conciliation … leaving behind them in America an inheritance, not of goodwill or affection such as now prevails, but of rancour and resentment.”Footnote 46 From this precedent Gladstone extracted the principle that “the more and the better state of liberty any people possessed, the less would they hazard in the vain attempt to make it more.”Footnote 47 David Bebbington likewise suggests that the American example, particularly as portrayed by Tocqueville, whom Gladstone had read in translation, strengthened Gladstone's regard for “communal liberties” of local self-government.Footnote 48 Indeed, Bryce's own study of American self-government owed much to Gladstone's encouragement.Footnote 49 John Morley, in turn, Gladstone's Secretary for Ireland and another intellectual heavyweight on the Home Rule side, likewise emphasized the educative value of self-government in his contribution to Bryce's Handbook of Home Rule. Quoting from Mill, Morley wrote, “no intention, however sincere, of protecting the interests of others can make it safe or salutary to tie up their own hands … by their own hands only can any positive and durable improvement of their circumstances in life be worked out.”Footnote 50 Writing in The Times, Morley also echoed Bryce's declaration that “we cannot be democrats by halves”: “It is hopeless for a country like our own … resting upon a popular basis, and appealing in every hour of its existence to popular principles … to attempt to treat the Irish vote … as if it were of no matter and no account.”Footnote 51
America was not the only example of constitutional conventions of self-government Bryce had considered. Discussing the abuse of native Bechuanas by the Boers in Transvaal, Bryce observed that in 1881 “a convention” was made with the Boers, “recognizing their practical independence, subject to British suzerainty.”Footnote 52 Substitute “Home Rule” for “practical independence” and “parliamentary sovereignty” for “British suzerainty,” and this case also becomes a close analogy to Irish Home Rule and thus to the sort of convention Bryce would propose in 1886. But the Transvaal convention could seem to have problematized Bryce's constitutionalism, since it was apparently clear evidence that constitutional conventions of noninterference were unworkable. The problem Britain faced under this convention when Bryce was writing in 1883 was, he wrote, that “European marauders” were attacking the natives. Suzerainty over Transvaal had been retained precisely so that Britain could intervene to protect the natives if need arose. Britain now faced what Bryce called a “terrible dilemma.” Intervening could possibly provoke another war with the Boers, while not intervening would “declare British suzerainty an empty name.” Bryce offered no solution to this, nor did he in his Home Rule speech address the similar dilemma latent in Irish self-government arrangements. How could he then recommend a convention of self-government for Ireland? Gladstone's Home Rule bill differed from the Transvaal convention in an important way. It was an express part of the Transvaal convention at its establishment that Britain would intervene in response to any abuse of the natives by the Boers. Britain had even made what Bryce called “engagements, the exact legal effect of which is disputed,” with native chiefs “to secure their safety.”Footnote 53 By contrast, Gladstone's bill specified and Bryce emphasized that Britain would only intervene in Irish affairs concerning matters affecting the empire, not in purely domestic disputes. An Irish situation analogous to Boer oppression of native Bechuanas—such as James's hypothetical unjust Land Act—would therefore not create the same expectation of intervention by Westminster, as vexing as this might be to Anglo-Irish landowners.
So much for Bryce's response to James's first point. In response to his second, regarding Parliament's control over the constitution, Bryce accepted James's characterization of Clause 39—requiring the recall of Irish members to alter the Act—as a parliamentary contract or “compact” that would impose a “moral” constraint on Parliament. “We mean by a Parliamentary contract an engagement made by a Statute which, although it cannot legally bind a succeeding Parliament, or even the existing Parliament, nevertheless has the effect of imposing a moral obligation upon Parliament not to act contrary to this Statute.”Footnote 54 Bryce cited parliamentary contracts with railway companies and municipalities: “those who lend money to the Municipality, or take shares in the Company, do so on the faith of the engagement made” by the constituting Act.Footnote 55 Legally, Parliament was perfectly free to break these contracts, but at the level of “honour and good faith” it was bound to honor them, at least until such time as Ireland should violate the terms of the Act—then, the right to alter or repeal the Act unilaterally “which is in any case a legal right on our side would become also a moral right.”Footnote 56 But unlike James, Bryce denied that such contracts should be understood as destructive of parliamentary sovereignty: since they had never been felt to compromise parliamentary sovereignty in other contexts, Bryce implied, neither should Home Rule.
This twofold conception of sovereignty must be understood in light of Bryce's jurisprudential writings. In an essay on “The Nature of Sovereignty” Bryce argued that sovereignty was of two kinds. “Legal” or “de iure sovereignty”—the “ultimate power” over law, “whose authority is that of the law itself”—differed from “de facto sovereignty,” or “practical mastery,” which referred instead to “the person (or body of persons) who can make his (or their) will prevail whether with the law or against the law.”Footnote 57 Throughout the essay Bryce critiqued “the school of Hobbes and Austin” which posited that the sovereign “is above all law, incapable of limitation or division, and having an absolute claim to the obedience of all its subjects, irrespective of the justice or policy of its acts.”Footnote 58 Bryce's main target, indeed, was Austin, the most recent member of this “school” and whose theory, Bryce said, “has had most influence during the last seventy years in England.”Footnote 59 Bryce argued that Austin elided de iure and de facto sovereignty and thus failed to see that what was true legally was not always true practically. Austin's definition of sovereignty “belongs to the de facto sphere and suits a de facto sovereign, but does not touch the de iure sovereign, who may have no means of enforcing obedience.”Footnote 60 In other words, Austin wrongly assumed that the legal sovereign will always in fact be obeyed. De facto sovereignty in fact depended on the various social and psychological forces that conditioned obedience and only on law to the extent that law, as a social institution, contributed to these forces.Footnote 61
With his critique of Austin, Bryce joined the growing tradition of English historical jurisprudence, associated chiefly with Henry Sumner Maine.Footnote 62 In his Lectures on the Early History of Institutions (1873) Maine had argued that Austin's conception of sovereignty accorded only with the facts of modern Western European history but was useless when applied to medieval, ancient, or non-Western history.Footnote 63 It needed to be understood as “the result of Abstraction,” an exercise “perfectly legitimate philosophically” but unhelpful for understanding sovereignty as a historical phenomenon.Footnote 64 Many ancient Eastern depots, for example, although by all appearances as purely sovereign as possible, generally never presumed to alter religious or customary law, being as deferential to ancient custom as their subjects.
Applied to Britain, Bryce's theory of sovereignty meant that although Parliament had complete sovereignty de iure, it did not for that reason have complete sovereignty de facto. Any practical sovereignty it enjoyed had always been the result of the people's obedience. Such obedience was, of course, not outside Parliament's own sphere of influence, but any success Parliament had in cultivating it was a result of adjustments to external limitations. As Bryce stated at the end of the essay, “All [civilized nations] also hold that in the internal affairs of a State, power legally sovereign—even if the Constitution subjects it to no limitation—ought to be exercised under those moral restraints which are expected from the enlightened opinion of the best citizens, and which earlier thinkers recognized under the name of Natural Law.”Footnote 65 On this basis could Bryce distinguish Parliament's moral freedom from its legal freedom. His argument in Parliament against Sir Henry James, in other words, was a version of his argument against Austin. By asserting that Parliament would lose its sovereignty by morally binding itself to the terms of Home Rule, James conflated de iure and de facto sovereignty just like Austin. He failed to see that Parliament could not lose unfettered practical sovereignty because it never had it. Its practical sovereignty had always been fettered by the empirical causes of habitual obedience; that is, by politics. Bryce's speech presumed this as fact. Home Rule would not be a revolution but an adaptation to the moral forces that had always bound Parliament's practical sovereignty.
Bryce's task was difficult. He had to justify what looked like the destruction of Parliament's imperial supremacy in an ideological atmosphere that tended to find justification for strongly centralized imperialism in a tacitly Austinian notion of parliamentary sovereignty. That many Unionists, like James, invoked such a notion of sovereignty has inspired a common interpretation of the Home Rule controversy as a battle between “hard-edged” constitutional arguments from the Unionists and “soft” appeals to sympathy from the Home Rulers.Footnote 66 This view tends to find further support in the fact that Dicey, a leading analytic jurist, was a strident Unionist who grounded his Unionism in utilitarian calculations, and that the Home Rule campaign emphasized a “union of hearts” rather than legal ties.Footnote 67 Our consideration of Bryce's contribution nuances this view. On the one hand, Bryce's insistence that under Home Rule union with Ireland would rest on a moral commitment by Parliament to nonintervention rests comfortably with the rhetoric of “hearts and minds.” Such a commitment would be part of the moral ties that were to bind England with Ireland in place of legislation and administration. On the other hand, Bryce's contribution shows that Home Rulers were not all “hearts and minds” but had “hard-edged” legal arguments of their own. In fact, Bryce relied on basically the same theory of sovereignty as Dicey. As Walters has shown, despite a very prevalent interpretation of Dicey as a “straightforward” Austinian, Dicey grounded his theory of sovereignty in the same critique of Austin as Bryce: that Austin failed to distinguish between legal and political sovereignty.Footnote 68 Here Dicey parted from the Austinians among his Unionist brethren like James. For Dicey, the danger of Home Rule was not its effect on Parliament's moral right to legislate for Ireland (if that were all Dicey thought Gladstone's bill would do it seems he would have been forced to agree with Bryce), but deeper: that by it Parliament would alienate its legal sovereignty over Ireland, a wager Bryce disagreed with, as I discussed above. All this explains better than Harvie's imputation of illogical duplicity why Bryce's justification took the specific form that it did. Bryce insisted unequivocally on parliamentary sovereignty, but de iure sovereignty only. Paradoxically, the empire's de facto sovereignty had always required Parliament's submission to various moral obligations such as those represented by constitutional conventions. The exigencies of the political situation Bryce found himself in drove him to innovate conceptually. What he did was not to redefine parliamentary sovereignty. Rather, it was to expose the fiction tacitly assumed by many and to establish the logical connection between parliamentary sovereignty rightly understood and the possibility of Home Rule for Ireland.
Constitutional flexibility and federalism
Another dimension of the constitutional problem at the heart of the Home Rule debate concerned the so-called “flexibility” of the constitution. James warned that under Irish Home Rule, the British constitution would cease to be “a flexible constitution” because it would lose the power to alter the terms of its own existence.Footnote 69 Any attempted alteration, at least with respect to its relations with Ireland, would become subject to a form of judicial review against the Home Rule Act, making the Act effectively a written constitution. The concept of constitutional flexibility had actually been introduced into British jurisprudence by Bryce himself, as James alluded to.Footnote 70 In 1884 Bryce had delivered two lectures on “Flexible and Rigid Constitutions” which were published as an essay in 1901.Footnote 71 Bryce found the conventional dichotomy between “written” and “unwritten” constitutions unsatisfactory, since much of the British “unwritten” constitution was contained in written statutes and much of the American “written” one was found only in usage. “Flexible” and “rigid” were more accurate. Flexible constitutions used the same legislative procedure for constitutional laws as for ordinary laws, whereas rigid constitutions required a special, typically more difficult, procedure for constitutional amendment.Footnote 72 Bryce's terminology was promptly adopted by constitutional theorists, including Dicey and Anson.Footnote 73
I considered above Bryce's argument that Parliament would not in fact lose the power to alter the constitution. On those grounds Bryce claimed Home Rule would leave “the sovereignty of Parliament and the consequent flexibility of the Constitution as they were before.”Footnote 74 Hence, the argument for parliamentary sovereignty was the same as for constitutional flexibility. But here I wish to explore the jurisprudential background to the problem of flexibility in Bryce's writings in order to show that Bryce's Home Rule constitutionalism was a conceptual innovation that aimed to resolve a dilemma that constitutional theorists generally held to be irresolvable. It was widely held that federal government required a rigid constitution and would thus require sacrificing the beloved flexibility of Britain's constitution, but Home Rule as Bryce advocated it would have blended federalism with constitutional flexibility by grounding legislative devolution in convention rather than in a written constitution enforced by courts.
Constitutional flexibility
The flexibility of the British constitution was generally regarded as its strength. As illustrated above, like parliamentary sovereignty it was not something that either side wished, or felt free, to call into question. Dicey, for instance, found that while America's history suggested that “the inflexibility of constitutional laws has in certain instances checked the gradual and unconscious process of innovation by which the foundations of a commonwealth are undermined,” such inflexibility in France had produced revolutions.Footnote 75 Dicey attributed France's 1851 revolution, for example, to the tendency of rigid constitutions “to bring the letter of the law into conflict with the will of the really supreme power in the state”—the people, who were constitutionally barred from reelecting Louis Napoleon. By contrast, Dicey argued, “the flexibility of English institutions has, once at least, saved them from violent overthrow.” He had in mind the Reform Bill of 1832, when “the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform.”Footnote 76
Bryce's preference for flexible constitutions was, characteristically, less unequivocal. After all, rigid constitutions had their advantages. By isolating all fundamental laws in one code or document, rigid constitutions were uniquely accessible to the citizenry.Footnote 77 This was particularly advantageous in democratic countries. Moreover, rigid constitutions placed restrictions on legislative power that often better protected minority rights.Footnote 78 And finally, rigid constitutions fostered stability in obvious ways. Being widely known and cherished as symbols of popular sovereignty they “obtain a hold upon the mind of the community,” making people “unwilling to see them tampered with.”Footnote 79 On the other hand, flexible constitutions were not without dangers. Britain's constitution had seen at least one great breach in continuity with Cromwell, and many of Bryce's contemporaries feared usurpations of the Commons by both the Cabinet and the newer phenomenon of the caucus.Footnote 80 Moreover, flexible constitutions were better suited to aristocracies than to democracies. Highly complex, they required a well-educated elite steeped in political and constitutional tradition. Furthermore, their flexibility could become a liability when “the masses obtain, and feel that they have obtained, the sovereignty of the country” but lack aristocratic resistance to change.Footnote 81 Conversely, Bryce acknowledged that the stability Britain had enjoyed could not be entirely credited to its constitution. There were “social and economic forces that stand behind and support” the constitution, such as Britain's “national character”—its “conservative temper” and respect for antiquity and precedent.Footnote 82
On balance, however, Bryce's assessment favored flexible constitutions. First, rigid constitutions’ disadvantages outweighed their advantages. Although prima facie accessible to democratic citizens, the actual working of government and the rights of citizens were determined by many amendments, judicial interpretations, and unwritten customs that vitiated this advantage.Footnote 83 Moreover, restrictions on legislative power were not always felt to be a good thing. In America, Bryce observed, reform movements of various sorts “chafed” under any such restrictions.Footnote 84 Bryce may have been thinking of his American friend the young professor Woodrow Wilson, who had found the hallowed checks and balances of the US Constitution to be obsolete and preclusive of an active reformist state.Footnote 85 As Bryce wrote elsewhere, “Amid the constant change of phenomena, a Rigid Constitution necessarily represents the past, not the present.”Footnote 86 While constitutional framers often intended to place certain provisions beyond the control of future generations, to Bryce this was folly. “Nothing human is immortal; and constitution-makers do well to remember that the less they presume on the long life of their work the longer it is likely to live.”Footnote 87 As for Dicey, the French example was to the point. Bryce's was only a more balanced and nuanced version of the typical Victorian critique of “paper constitutions.”Footnote 88
Second, flexible constitutions’ advantages far outweighed their dangers. Bryce pointed to several features of the British constitution that equipped it to accommodate radical change. Though the executive was normally restrained by multiple checks, the constitution was flexible enough to permit it to act unilaterally in cases of emergency. The prerogative, nominally the Crown's but practically the Cabinet's, could be employed without Parliament's approval. Likewise, a vote of credit could suspend the Commons’ control over the government.Footnote 89 For the sake of “general convenience of administration” the constitution had permitted Parliament to delegate certain duties to inferior powers, to authorize the Crown to issue orders in council to handle a “vast mass of secondary legislation,” and to establish the Judicial Committee of the Privy Council to take judicial appeals from colonial courts.Footnote 90 Similarly, constitutional flexibility provided the state “a means of preventing or minimizing revolutions by meeting them halfway.” In response to “popular demands,” for example, the House of Lords had given up its right to alter money bills even though there was (in 1901) no law requiring this. Likewise, Parliament had avoided a revolution by gradually extending the suffrage via the three great Reform Acts—a Whiggish point often emphasized by Victorian celebrants of the British constitution.Footnote 91 Because the constitution thus permitted small changes, giving moderate reformists a moderate outlet, radical reform movements were unlikely to materialize into revolutions.
In its flexibility, Bryce further argued, the British constitution mirrored the strength of the ancient Roman constitution. It is beyond the scope of this article fully to consider the Roman dimension of Bryce's constitutionalism.Footnote 92 It is enough for my purpose to note that Bryce's analysis of Rome's flexible constitution led him to conclude that the working of a constitution, especially a flexible one, depended heavily on the character of the people living under it, and that corruption of Roman character caused the disintegration of the empire. In his political speeches, Bryce offered similar admonitions of moral corruption and abuse in Britain. In 1890 he summed up what he felt to be the “age of discontent” that had fallen upon Europe. Industrial growth had enabled certain men to accumulate vast private wealth, “detached and irresponsible fortunes” capable of corrupting “the virtue of legislators.”Footnote 93 In one speech ten years later he distinguished between a “rash, boastful, and aggressive” imperialism and one “that recognized the rights of other countries as well as its own, and which did not try to abuse its power.”Footnote 94 In another he declared that “the British Empire must be based on principles that will promote the happiness of those who govern and will not injure our own character as a governing nation.”Footnote 95 There were two imperialisms, one progressive and the other self-destructive like Rome's. Britain could escape Rome's fate by insisting on high moral standards in imperial policy and recognizing the right to self-government.Footnote 96
For Bryce, to have such a choice was part of living under a flexible constitution. Flexibility meant freedom, and freedom required duty. Bryce's argument that the solution to the Irish problem was not the assertion of law but a freely made compromise in the realm of honor and good faith makes most sense in the context of his analysis of flexible constitutions and the importance of moral character in preserving such constitutions. Britain could legally continue to lord over Ireland, but through such “rash, boastful and aggressive” imperialism she risked disintegration. The only thing keeping the British ruling elite from abusing their constitutional flexibility was their own character—their willingness to assume a moral obligation outside the law.
Federalism
Bryce's esteem for the flexibility of the British constitution created a problem. Mindful of the American model, jurists like Bryce and Dicey generally agreed that federal government was incompatible with a flexible constitution. The question was whether Home Rule really amounted to federalism. If there was linguistic controversy over the word “sovereignty,” there was much more over “federalism.” John Kendle has observed that apart from a few experts, the British public during the Home Rule controversy lacked a nuanced understanding of different forms of legislative division, so much that “‘devolution’, ‘federalism’, ‘Home Rule’, ‘federal Home Rule’, ‘Home Rule all round’, and ‘federal devolution’ were used indiscriminately to describe proposed changes to the British constitution.”Footnote 97 These conditions created a conceptual space for the various partisans to innovate. Unionists, notably Dicey, often argued that Home Rule did amount to federalism and for that reason should be rejected.Footnote 98 But Home Rulers like Bryce portrayed it differently—like federalism, but not as rigid. Bryce had to come up with some way to secure the benefits of federalism without giving up the flexibility of the constitution.
By the mid-1880s few British constitutional jurists had considered American federalism in any depth.Footnote 99 For Dicey, the constitutional rigidity of federalism was a consequence of one of the “essential characteristics” of federal government—namely the “supremacy of the constitution.”Footnote 100 Relying mainly on American examples, Dicey generalized that federal governments derived their existence from written constitutions both legally and historically, being pre-dated by the constituent assemblies that framed them. Because the US Constitution was supreme it was also rigid—it could not be amended by Congress because Congress owed to it its existence. Likewise, Unionist arguments against Home Rule tended to presume the necessary connection between federalism and rigidity. Sir William Anson, to recall, claimed, “If [Home Rule] is to be federal, we must accept pro tanto a rigid instead of a flexible constitution.”Footnote 101 Home Rule, he said, would effectively make the Judicial Committee of the Privy Council a supreme court with the power to review the validity of Acts of Parliament, stripping Parliament of the supremacy wherein lay its flexibility. “Flexible elsewhere,” Anson warned, “that Constitution would become rigid as regarded the relations of Ireland to the Empire.”Footnote 102
Bryce agreed that federalism required rigidity, but with an important qualification. Considering the capacity of the two types of constitution for territorial expansion, he observed that the absorption of new states had practically come to require federation.Footnote 103 Whereas the “ancient Romano-Germanic Empire” had a flexible constitution, its reconstitution along federal lines after Napoleon required “the creation of a federal system under a Rigid Constitution.”Footnote 104 From this Bryce concluded that federation “almost necessarily implies a rigid constitution”—“almost” because there were rare cases where flexible constitutions could absorb new states, such as England's unification with Scotland.Footnote 105 Bryce did not here consider Ireland, but it is notable that his only stated exception to the rule that federation requires a rigid constitution involved Great Britain.
One reason why Bryce was not so categorically dismissive of federalism as Dicey is that he perceived its advantages.Footnote 106 Bryce's analysis in The American Commonwealth must be read in light of the ongoing Home Rule controversy. After the chapter on federal noninterference, Bryce gave two chapters to the defects and merits of American federalism. Here he listed the eight conventionally alleged faults of federalism and simply disavowed each one seriatim. Even the “gravest” one, the Civil War, Bryce excused as attributable not to federalism but to slavery, which eventually would have caused a war under any government.Footnote 107 He next listed the conventional advantages of federalism and claimed, “All of these arguments recommending Federalism have proved valid in American experience.”Footnote 108 Bryce stressed that the success of American federalism owed to the “self-reliant,” “law-loving and law-abiding” character of the American people, and that therefore federalism was not necessarily transferable to different national circumstances, although he perhaps betrayed his feelings by calling the Americans “the English of America.”Footnote 109 Such sentiments drew criticism from Lord Acton, who called Bryce a “bewildered Whig” with “a growing belief in the function of ghosts to make laws for the quick” for underrating the genuinely revolutionary character of the American founding.Footnote 110
Elsewhere, Bryce gave clearer indications that federalism's benefits were more generally applicable. He theorized federalism in terms of “centripetal” and “centrifugal” forces, terms James Madison had used during the US Constitutional Convention.Footnote 111 Such forces as obedience, individualism, self-interest (including property, commerce, and industry), and racial or religious sympathy could act centripetally to enhance unity or centrifugally to cause division, depending on which institutions formed their center of gravity.Footnote 112 Where a given political community includes such “distinct groups, each desiring some control of its own affairs,” the creation of a rigid constitution was advisable: “The familiar instance of such a form of Rigid Constitution is a Federal Constitution.”Footnote 113 Federalism could give enough “recognition and play” to centrifugal forces to “disarm them.”Footnote 114 Did Bryce have in mind Ireland? In scientific spirit, all he would say was, “Whether a similar contrivance might not have been profitably employed within the British Isles in A.D. 1782, or in A.D. 1800, or again later, is a question which will already have presented itself to one who has followed the argument thus far.”Footnote 115 Thus, even before Gladstone went public about Home Rule, Bryce showed support for some sort of federal solution for Ireland (pace Harvie), despite the rigidity it seemed to entail.Footnote 116
The evolution of Bryce's views on another contemporary movement—for imperial federation—further illuminates how he resolved the tension between federalism and flexibility. Prima facie, Bryce's writings on imperial federation paint a confusing picture. On the one hand, Bryce founded the Oxford chapter of the Imperial Federation League in 1886 and served as its first president.Footnote 117 At a meeting of the Royal Colonial Institute in 1893 on imperial federation he declared, “we seek to unite in a political permanent bond” the self-governing dominions, and urged that the colonies assume “a more extended patriotism” and take up their “share in that great pan-Britannic progress which I believe has a future before it no less glorious than its past.”Footnote 118 To Freeman he even suggested that the US might be incorporated as well.Footnote 119 Based on such evidence, Duncan Bell, following Harvie, has argued that for Bryce “Ireland was merely part of a larger vision” involving “a federation of the empire” and “restoration of union with the United States.”Footnote 120
Such views tend to overlook evidence that Bryce was skeptical about imperial federation. In the lecture on flexible and rigid constitutions he speculated that imperial federation would require “a reconstruction of the present frame of government, which would probably have to be effected by the establishment of a Rigid Constitution.”Footnote 121 Discussing the future prospects of the two constitution types, he mentioned two “proposals of a federalizing nature”—one to federate the empire, the other to federate the kingdom. “Neither seems likely to be carried out at present.”Footnote 122 The problem with both was the same. They would “destroy the present Flexible British Constitution and substitute a Rigid one for it.”Footnote 123 This would reduce “the now unlimited powers of the British Parliament,” and “Parliament would not be fully sovereign.”Footnote 124 In both cases a “Supreme Court of Appeal” would have to be established to adjudicate disputes about the extent of each legislature's powers.Footnote 125 Accordingly, he ended his discussion of imperial federation with ambivalence. “The difficulties, both legal and practical, with which these proposals … are surrounded, are greater than those who advocate them have as yet generally perceived.”Footnote 126
However, Bryce seems to have changed his mind about imperial federation as a result of his experience in the Home Rule debates. Careful attention to the footnotes added to his lecture on “Flexible and Rigid Constitutions” before its publication in 1901 suggests that Bryce came to see the juridical problem posed by imperial federation in the same way that he saw the problem of Home Rule.Footnote 127 The original text of the lecture reads, “Care would have to be taken to use proper legal means of extinguishing the general sovereign authority of the present Parliament … so that [it] should absolutely cease and determine when the new [imperial federal] Constitution came into force.”Footnote 128 But in the footnote he seems to have changed his mind: as a practical matter such legal acrobatics would not be necessary because “in point of fact no Parliament can be supposed capable of the breach of faith which such a repeal [of an imperial federation act] would involve”—capable, that is (we may surmise), of maintaining its de facto sovereignty amid such a scandal.Footnote 129 A Parliament that did try repealing an Act whereby it had delegated legislative authority would not be returned at the next election, Bryce seems to have implied. An imperial federation Act, like a Home Rule Act, would subject Parliament to a moral obligation to honor its terms—an obligation not legally binding but, given certain conditions, politically impossible to break.
We may now see how Home Rule as Bryce envisioned it resolved the tension between federalism and flexibility. Just as imperial federation would make the constitution rigid only in a practical or moral sense—only with respect to Parliament's de facto sovereignty—so also would Home Rule. The constitution Bryce advocated would be made rigid only by moral or practical forces like public opinion. Legally, as he emphasized, it remained flexible, and Parliament remained sovereign. Dicey had drawn his generalization about the link between federalism and rigidity from the US example, where constituent assemblies had historically preceded and created legislative assemblies. Britain, whose Parliament was both a constituent and a legislative assembly, was a much different case, as Bryce's juridical hairsplitting demonstrated. If this nuance did not come through clearly in Bryce's advocacy for Home Rule, it could have simply been obscurity—he was not known as a pithy speaker—but it could also be that he was treading dangerously near sacred taboos. Parliamentary sovereignty and constitutional flexibility set the normative bounds in which Bryce had to justify Home Rule. As a result, he cast it as a federal solution guaranteed not by a judicially enforced rigid constitution but by a moral commitment from Parliament to respect Ireland's independence. Optimistic, but not incoherent.
Conclusion
The failure of the second Home Rule bill in 1893 ended Bryce's advocacy for Home Rule. Having contributed twenty-five articles on Ireland to The Nation during the 1880s, he published no more after 1891, though his total output kept pace.Footnote 130 There followed a decade of Conservative government, and when the Liberal Party next regained power under Henry Campbell-Bannerman in 1905, the moment had passed. Bryce was appointed Chief Secretary for Ireland in the new Cabinet, but he had to content himself with small measures of local self-government and departed after less than a year to become ambassador to the US until 1913.Footnote 131 He seems to have played no part in the passage of the 1914 Home Rule Act. Only the outbreak of war called him back into active life, where he played an important (and controversial) role in both Britain's and America's entry and remained active until his death in 1922, shortly after introducing the 1921 Treaty with the Irish Free State into the House of Lords, to which he had been elevated upon returning from America.Footnote 132
We can now better understand the logic of Bryce's Home Rule constitutionalism. To recall, Harvie concluded that Bryce's argument was illogical from his premise that Bryce's motive was to gain a Cabinet position; but the conclusion does not follow from the premise, for the reason Skinner rejected Namier's similar claim about Bolingbroke, as I alluded to above: in both cases, by serving to legitimate an apparently unjustifiable course of action (for Bolingbroke, opposing the king's ministry), ideological arguments sought to reconcile a course of action with the parameters of political justifiability and were thus an important part of the political contest itself. By appreciating features that the high-politics school overlooks, particularly the ideological importance of parliamentary sovereignty and constitutional flexibility, we can answer questions it cannot answer, like why the jurisprudential justification of Home Rule relied upon the distinction between de jure and de facto sovereignty, rather than, say, surrendering parliamentary sovereignty in favor of the Crown as the basis of unity with Ireland. It is therefore necessary to resist any insistence on the separateness of high politics and constitutional theory. Bryce's role in the Home Rule debates shows how important constitutional theory still was to the high politics of the late Victorian period—something Jones has also recently highlighted, rebutting a tendency by historians to emphasize a shift of attention to social, economic, and imperial issues.Footnote 133
We are also better able to understand the relationship between Bryce's constitutionalism and Dicey's. It has been casually asserted that Bryce differed from Dicey as an “Ulster Scot and civilian jurist to whom English conceptions of sovereignty were alien.”Footnote 134 However, the only conception of sovereignty each inherited was the same (the Englishman Austin's), and both modified it in like manner. They agreed Parliament's sovereignty was strictly legal and that its political or practical sovereignty extended only so far as its popular support. They differed only on the question whether Gladstone's 1886 Home Rule scheme, by requiring recall of the Irish members for amendments, was a partial alienation of Parliament's legal sovereignty and thus would create a legally rigid constitution. Dicey thought it was, and therefore, despite his Unionism, preferred Irish independence to Home Rule, since at least it would leave Parliament's legal sovereignty intact. Bryce, by contrast, thought that Gladstone's scheme (by necessity) would leave Parliament's legal sovereignty intact, but not without making the constitution, which had always been politically rigid, even more so. Behind Dicey's view, as Walters observes, was an inchoate notion of the state as not prior to but constituted by law—i.e. of Parliament as a common law concept determinable by law courts—a notion with a long history in English jurisprudence.Footnote 135 Possibly this could represent the basic impasse between Bryce and Dicey, since Bryce seemed to assume that Parliament's (legal) sovereignty was somehow prior to law. If this were a Roman notion of sovereignty and Dicey's an “English” notion, we could agree that Bryce was a civilian who rejected English notions (though his Scots roots would be insufficient explanation). However, as we have seen, Bryce also thought that Parliament could legally curtail its own legal sovereignty, albeit only by more intricate means than Home Rule legislation. In sum, for all their disagreement over Home Rule, the only difference in constitutional theory between the two was on this fine question.
Acknowledgements
I am grateful to Duncan Kelly, Eric Nelson, Dimitri Halikias, Will Selinger, Greg Conti, and the editors and anonymous referees for helpful comments on earlier drafts of this article.
