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James Bryce and Parliamentary Sovereignty
Published online by Cambridge University Press: 18 May 2021
Abstract
This article considers the important but neglected contribution of James Bryce (1838–1922)—noted historian, Gladstonian statesman, and ambassador to the US—to the constitutional debates over Home Rule for Ireland in late Victorian Britain. It focuses on Bryce's reflections on the nature of sovereignty and constitutional government provoked by the need to reconcile Home Rule with parliamentary sovereignty, recently canonized by Bryce's Unionist counterpart and friend, A. V. Dicey. Challenging a tradition of scholarship that sees the Home Rule debates as “a sideshow” and Bryce's contribution as “illogical,” I suggest that Bryce's contribution in fact represents an innovative imperial constitutionalism of what may be called “soft” federalism, which rests not on a codified constitution enforced by courts but on a paradoxical understanding of Parliament's de facto sovereignty as constrained by moral commitments. In this light, the jurisprudential debates appear less a sideshow than an important part of the political contest itself.
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References
1 Dicey, A. V., Lectures Introductory to the Study of the Law of the Constitution, 1st edn (London, 1885)Google Scholar. Seven revised editions appeared over the next thirty years.
2 See Qvortrup, Mads, “A. V. Dicey: The Referendum as the People's Veto,” History of Political Thought 20/3 (1999), 531–46Google Scholar; Weill, Rivka, “Dicey Was Not Diceyan,” Cambridge Law Journal 62/2 (2003), 474–93CrossRefGoogle Scholar; Kirby, James, “A. V. Dicey and English Constitutionalism,” History of European Ideas 45/1 (2019), 33–46CrossRefGoogle Scholar.
3 See Dicey, A. V., Law of the Constitution, 8th edn (London, 1915), 123Google Scholar n. 1, and note 73 below.
4 Cooke, A. B. and Vincent, John, The Governing Passion: Cabinet Government and Party Politics in Britain, 1885–86 (Brighton, 1974), 22Google Scholar.
5 Harvie, Christopher, Lights of Liberalism: University Liberals and the Challenge of Democracy, 1860–86 (London, 1976), 218–42Google Scholar; and Harvie, “Ideology and Home Rule: James Bryce, A. V. Dicey and Ireland, 1880–1887,” English Historical Review 91/359 (1976), 298–314.
6 Harvie, “Ideology and Home Rule,” 300; Harvie, Lights of Liberalism, 228–30.
7 Harvie, Lights of Liberalism, 313. Harvie follows Joseph Chamberlain, who, according to Mrs Ashton Dilke, called Bryce “just a snivelling professor, who turned Home Ruler because he found that Aberdeen would have it so, and that there was the chance of office.” M. C. Hurst, Joseph Chamberlain and the Liberal Reunion: The Round Table Conference of 1887 (London, 1967), 381. For Bryce's posture towards America see Bryce, James, “The Essential Unity of Britain and America,” Macmillan's Magazine 82 (1898), 22–9Google Scholar.
8 Harvie, “Ideology and Home Rule,” 312. Bryce's modern biographer accepts Harvie's view. John T. Seaman Jr, A Citizen of the World: The Life of James Bryce (London and New York, 2006), 109.
9 Quentin Skinner, “The Principles and Practice of Opposition: The Case of Bolingbroke versus Walpole,” in Neil McKendrick, ed., Historical Perspectives: Studies in English Thought and Society in Honour of J. H. Plumb (London, 1974), 93–128, at 93–113. Namier was an important figure in the mid-century “high-politics” school that included Cooke and Vincent and influenced Harvie. See Philip Williamson, “The ‘Neglect of High Politics’ and the Triumph of Political History,” in Robert Crowcroft, S. J. D. Green and Richard Whiting, eds., The Philosophy, Politics and Religion of British Democracy: Maurice Cowling and Conservatism (London, 2010), 85–186.
10 What Home Rule Means Now (Dublin, 1893), 79.
11 See Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (Oxford, 2001), 1–158CrossRefGoogle Scholar.
12 Samuel Taylor Coleridge, On the Constitution of the Church and State, According to the Idea of Each (1830), ed. John Colmer (London, 1976), 97, cited in Goldsworthy, The Sovereignty of Parliament, 221.
13 Dicey, Law of the Constitution, 1st edn, 36.
14 Ibid., 64–77.
15 Ibid., 112.
16 Hansard's, series 3, vol. 305 (17 May 1886), col. 1218.
17 See Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Cambridge, MA, 2014). Bryce expressed surprise that no Tories had attempted thus to justify Home Rule. James Bryce, “The Past and Future of the Irish Question,” in Bryce, ed., Handbook of Home Rule (London, 1887), 214–45, at 226.
18 Hansard's, series 3, vol. 304 (8 April 1886), col. 1137.
19 Hansard's, series 3, vol. 305 (17 May 1886), col. 1218.
20 Anson, William, “The Government of Ireland Bill and the Sovereignty of Parliament,” Law Quarterly Review 2/8 (1886), 427–43Google Scholar, at 437.
21 Ibid., 438.
22 Ibid.
23 Ibid., 439.
24 John Kendle, Ireland and the Federal Solution: The Debate over the United Kingdom Constitution, 1870–1921 (Kingston and Montreal, 1989), 74–5.
25 James Bryce, “Flexible and Rigid Constitutions,” in Bryce, Studies in History and Jurisprudence, 2 vols. (New York, 1901), 1: 175. NB that throughout this article I cite the New York publication of this book, whose pagination differs from the Oxford one.
26 Ibid., 176 n. 1.
27 Ibid.
28 Mark Walters, A. V. Dicey and the Common Law Constitutional Tradition (Cambridge, 2020), 177. See also A. V. Dicey, England's Case against Home Rule (London, 1886), 239–40. Walters distinguishes Dicey's view that “parliamentary sovereignty would survive under the [Home Rule] Act, but that it would be lodged with the Westminster Parliament acting either in conjunction with the Irish legislature or with Irish members recalled,” from Anson's view that “clause 39 impaired parliamentary sovereignty and that the Government of Ireland Act would be, in effect, a written constitution,” but really these are two sides of the same coin, and Dicey's view and Anson's should be categorized together.
29 H. Jenkyns, Office of the Parliamentary Counsel, to J. Bryce, 21 May 1886, Oxford, Bodleian Libraries, MS Bryce 213, 127–32, as cited in Walters, A. V. Dicey and the Common Law Constitutional Tradition, 177.
30 Walters, A. V. Dicey and the Common Law Constitutional Tradition, 175, 178.
31 Anson, “The Government of Ireland Bill,” 436.
32 Hansard's, series 3, vol. 305 (13 May 1886), col. 922.
33 Ibid.
34 Ibid.
35 See Dicey, Law of the Constitution, 1st edn, 25, 64–77, 341–91.
36 Hansard's, series 3, vol. 305 (17 May 1886), cols. 1165–1256.
37 Ibid.
38 Ibid.
39 Ibid.
40 Seaman, A Citizen of the World, 134–5.
41 Bryce, The American Commonwealth, 3 vols. (London, 1888), 1: 318–33.
42 Ibid., 330–31.
43 Ibid., 331.
44 Ibid., 1: 331. Bryce had likewise emphasized consistency of principle in his speeches. See Hansard's, series 3, vol. 305 (17 May 1886), col. 1229.
45 Emily Jones, Edmund Burke and the Invention of Modern Conservatism, 1830–1914: An Intellectual History (Oxford, 2017), 124.
46 Hansard's, series 3, vol. 304 (13 April 1886), cols. 1544–5.
47 Ibid
48 David Bebbington, The Mind of Gladstone: Religion, Homer, and Politics (Oxford, 2004), 298–9.
49 H. A. L. Fisher, James Bryce (Viscount Bryce of Dechmont, O.M.), 2 vols. (London, 1927), 1: 188–9.
50 John Morley, “Some Arguments Considered,” in Bryce, ed., Handbook of Home Rule, 246–61, at 250.
51 D. A. Hamer, John Morley: Liberal Intellectual in Politics (Oxford, 1968), 192.
52 [Y], “Colonial Annexations: The South African Question,” The Nation 37/937 (1883), 506–7. Bryce's articles in The Nation were printed anonymously but have since been identified and indexed in Daniel C. Haskell, The Nation, Volumes 1–105, New York, 1865–1917. Indexes of Titles and Contributors, 2 vols. (New York, 1950–53), 1: 65–9.
53 [Y], “The South African Question,” 506.
54 Hansard's, series 3, vol. 305 (17 May 1886), col. 1220.
55 Ibid.
56 Ibid.
57 James Bryce, “The Nature of Sovereignty,” in Bryce, Studies in History and Jurisprudence, 2: 505, 512. Bryce specified that this essay had been written “a good many years earlier” than its publication here in 1901.
58 Ibid., 533.
59 Ibid., 504. See John Austin, The Province of Jurisprudence Determined (London, 1832), esp. Lecture VI, “Sovereignty,” 197–391.
60 Bryce, “The Nature of Sovereignty,” 537.
61 Elsewhere in the same volume Bryce explored these social and psychological causes of political obedience. Bryce, “Obedience,” in Studies in History and Jurisprudence, 2: 463–502.
62 In a note appended to his essay as published in 1901 Bryce acknowledged Maine's two lectures alongside others. Bryce, “The Nature of Sovereignty,” 554. Bryce's critique of Austin has been suggested as the “most systematic” by one of Austin's most sympathetic interpreters. Wilfred Rumble, Doing Austin Justice: The Reception of John Austin's Philosophy of Law in Nineteenth-Century England (London and New York, 2005), 235. Bryce critiqued Austin's methodology more directly in “The Methods of Legal Science,” in Bryce, Studies in History and Jurisprudence, 2: 607–37.
63 Henry Sumner Maine, Lectures on the Early History of Institutions (London, 1873), 342–400. See also Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, 2010), 113–18.
64 Maine, Early History of Institutions, 359.
65 Bryce, “The Nature of Sovereignty,” 554.
66 See, e.g., Jones, Edmund Burke and the Invention of Modern Conservatism, 124; Harvie, “Ideology and Home Rule,” 311; and Seaman, A Citizen of the World, 109.
67 Jones, Edmund Burke and the Invention of Modern Conservatism, 124.
68 Walters, A. V. Dicey and the Common Law Constitutional Tradition, 179–87.
69 Hansard's, series 3, vol. 305 (13 May 1886), col. 922.
70 James said that the constitution was flexible “as a writer on the Government Benches has said.” Ibid.
71 Bryce, “Flexible and Rigid Constitutions,” 124–215.
72 Ibid., 128–36.
73 See Anson, “The Government of Ireland Bill,” 440, and Dicey, Law of the Constitution, 1st edn, 114–16. In the first edition Dicey did not attribute his terminology to Bryce, likely because Bryce's lecture, though given the previous year, had not yet been published. But by the eighth edition Dicey had credited Bryce. See Dicey, Law of the Constitution, 8th edn, 123 n. 1. Dicey had discussed the distinction in correspondence with Bryce in 1884. See e.g. A. V. Dicey to James Bryce, 9 December 1884, Oxford, Bodleian Libraries, MS Bryce 2, 244–52.
74 Hansard's, series 3, vol. 305 (17 May 1886), col. 1221 (emphasis added).
75 Dicey, Law of the Constitution, 1st edn, 117–18.
76 Ibid. It is true that Dicey desired greater protection for constitutional law in the British system, but whereas the “Americanization” of the British constitution, which Maine favored (Henry Sumner Maine, Popular Government (London, 1885), 111–12, 125–6), would compromise its flexibility, Dicey believed that incorporating a Swiss-style popular referendum on constitutional legislation would provide the needed protection without compromising flexibility. See Dicey, A. V., “Can the English Constitution be Americanized?”, The Nation 42/1074 (1886), 73–4Google Scholar; and Dicey, “Ought the Referendum to be Introduced into England?,” Contemporary Review 57 (1890), 489–511.
77 Bryce, “Flexible and Rigid Constitutions,” 200.
78 Ibid., 202.
79 Ibid., 188.
80 Ibid., 150–51. For the fear of Cabinet and caucus see Maine, Popular Government, 93–106.
81 Bryce, “Flexible and Rigid Constitutions,” 160.
82 Ibid., 141–3. See Peter Mandler, “‘Race’ and ‘nation’ in mid-Victorian thought,” in Stefan Collini, Richard Whatmore and Brian Young, eds., History, Religion, and Culture: British Intellectual History 1750–1950 (Cambridge, 2000), 224–44.
83 Bryce, “Flexible and Rigid Constitutions,” 221. See also Bryce, The American Commonwealth, 1: 381–9.
84 Bryce, “Flexible and Rigid Constitutions,” 202.
85 Woodrow Wilson, Congressional Government: A Study in American Politics (Boston and New York, 1885).
86 James Bryce, “The Action of Centripetal and Centrifugal Forces on Political Constitutions,” in Bryce, Studies in History and Jurisprudence, 1: 216–62, at 219.
87 Bryce, “Flexible and Rigid Constitutions,” 177.
88 See Angus Hawkins, Victorian Political Culture: “Habits of Heart and Mind” (Oxford, 2015), 54.
89 Bryce, “Flexible and Rigid Constitutions,” 146.
90 Ibid., 147.
91 Hawkins, Victorian Political Culture, 64. See e.g. Erskine May, Democracy in Europe: A History, 2 vols. (New York, 1880), 2: 493–5.
92 See Jordan Rudinsky, “James Bryce's Home Rule Constitutionalism and Victorian Historiography,” in Edward Cavanagh, ed., Empire and Legal Thought: Ideas and Institutions from Antiquity to Modernity (Leiden and Boston, 2020), 492–519.
93 James Bryce, “An Age of Discontent,” Contemporary Review 59 (1891), 14–29, at 22.
94 As paraphrased in “Mr. Bryce at Cambridge,” The Times, 15 May 1899, 15.
95 “Mr. Bryce on Liberal Imperialism,” The Times, 5 June 1900, 8.
96 For liberal imperialism generally see Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton, 2005).
97 Kendle, Ireland and the Federal Solution, 4.
98 Dicey, England's Case against Home Rule, 172.
99 See Kendle, Ireland and the Federal Solution, 4–5.
100 Dicey, Law of the Constitution, 1st edn, 132–4. For Dicey's application of this logic in argument against Home Rule see Dicey, England's Case against Home Rule, 168–73.
101 Anson, “The Government of Ireland Bill,” 442.
102 Ibid., 440.
103 Ibid., 166–7.
104 Ibid.
105 Ibid.
106 On Dicey's preference for unitary government see Kirby, “A. V. Dicey and English Constitutionalism,” 44.
107 Bryce, The American Commonwealth, 1: 340.
108 Ibid., 345.
109 Ibid., 349.
110 Acton, Lord, “Reviews of Books,” English Historical Review 4/14 (1889), 388–96CrossRefGoogle Scholar.
111 James Bryce, “The Action of Centripetal and Centrifugal Forces on Political Constitutions,” in Bryce, Studies in History and Jurisprudence, 1: 255–311. See I. Bernard Cohen, Science and the Founding Fathers: Science in the Political Thought of Thomas Jefferson, Benjamin Franklin, John Adams, and James Madison (New York and London, 1997), 257–69. Compare Bryce's use of these terms in The American Commonwealth, 1: 342–3.
112 Bryce, “Centripetal and Centrifugal Forces,” 216–62.
113 Ibid., 220.
114 Ibid.
115 Ibid., 253.
116 Bryce dated composition of this essay to “the early part of 1885” (see ibid., 216 n. 1). Upon republication of this essay in a slimmer volume in 1905, Bryce wrote that it was “suggested … partly by the Irish demand for Home Rule, and sketched out in the days before Mr Gladstone had given his approval to that demand,” which happened in December of 1885. James Bryce, Constitutions (New York and London, 1905), vii. Further, it appears that Bryce delivered a lecture version of the essay at Oxford in early February 1886. “Professor Bryce's Public Lecture,” Oxford Magazine, 17 Feb. 1886, 58. (I'm grateful to one of the anonymous reviewers for directing me to the last two citations.) Although Bryce could plausibly have meant “the early part of 1885” when, twenty years later in 1905, he wrote “the days before” the Hawarden Kite, even if he had not composed the essay until late 1885, it would still demonstrate that he was at least inclining towards Home Rule before Gladstone publicly adopted it.
117 Seaman, A Citizen of the World, 175.
118 Proceedings of the Royal Colonial Institute 24, 133. See also Duncan Bell, Dreamworlds of Race: Empire and the Utopian Destiny of Anglo-America (Princeton, 2020).
119 Seaman, A Citizen of the World, 176.
120 Bell, Duncan, The Idea of Greater Britain: Empire and the Future of World Order, 1860–1900 (Princeton, 2007), 136CrossRefGoogle Scholar; citing Harvie, Lights of Liberalism, 222
121 Bryce, “Flexible and Rigid Constitutions,” 165.
122 Ibid., 207.
123 Ibid., 209–10.
124 Ibid., 209.
125 Bryce did not seem to take seriously the Continental model of rigid federalism, which allowed the central legislatures to be the judge of their own powers under the written constitution, although he was aware of it. See James Bryce, The American Commonwealth, 3rd edn, 2 vols. (London, 1893), 1: 250 n. 1.
126 Bryce, “Flexible and Rigid Constitutions,” 210.
127 The footnote on Home Rule, discussed above at note 26, is at ibid., 176 n. 1.
128 Ibid.
129 Ibid., 209 n. 1.
130 Haskell, The Nation, 1: 65–9.
131 See Kendle, Ireland and the Federal Solution, 98–9.
132 See Wilson, Trevor, “Lord Bryce's Investigation into Alleged German Atrocities in Belgium, 1914–15,” Journal of Contemporary History 14/3 (1979), 369–83CrossRefGoogle Scholar; and Seaman, A Citizen of the World, 205–16.
133 Jones, , “Constructive Constitutionalism in Conservative and Unionist Political Thought, c.1885–1914,” English Historical Review 134/567 (2019), 334–7CrossRefGoogle Scholar.
134 Kirby, “A. V. Dicey and English constitutionalism,” 44.
135 Walters, A. V. Dicey and the Common Law Constitutional Tradition, 165–75.