Bryce and Home Rule

It is in this context that BryceвЂ™s role comes into focus. Like Gladstone, Bryce had been thinking about the Irish question for several years before 1886. An Ulster- born Scottish Presbyterian almost denied entry to Oxford for non-conformism, Bryce became captivated by Garibaldi as an undergraduate during the Risorgi- mento.

Suspicion of the English and sympathy for any nationalist movement against foreign domination came easily to him.^[1187] ^{^[1188] ^[1189] ^[1190] Shortly after winning his first Commons seat in 1880 he toured Ireland, returning вЂ?firmly of the opinion that Irish problems were systemic, the result of hatreds - both of the English and of absentee Irish landlords - that could not be overcome by legislationвЂ™. 2³ His conВtributions to The Nation over the next few years show a new interest in the dyВnamics of imperial government across the Empire?⁴ His impression may be best reflected in the assertion, from 1883, that вЂ?the English politician has a wholesome sense of his own ignorance, and doesnвЂ™t feel as if the interference of Parliament, except to expose some gross abuse or correct some obvious misВtake, would be of great service in colonial difficultiesвЂ™?⁵ By the time Gladstone got around to building a campaign for the first home rule bill in 1886, therefore, Bryce needed no persuading. As a noted historian and jurist, he was called upon to head the ideological campaign. The result was a collection of essays Bryce edited and commissioned from various contribuВtors addressing different facets of the home rule scheme and the objections thereto.^[1191] ^{^[1192] ^[1193] As in the forum of public opinion so also in parliament, Bryce emerged as the intellectual heavyweight on the home rule benches. Alan Ward has noted that the home rule debates turned primarily on two questions: first, whether Ireland would accept the subordinate status of its parliament, and second, whether Westminster would intervene in the event Ireland overВstepped its bounds?⁷ In other words, would home rule for Ireland require parВliament to abrogate sovereignty?}
The sovereignty of parliament was gospel in Victorian Britain.
In 1885, the year before the first home rule bill, Bryce's friend and Oxford classmate A.V Dicey had published his seminal lectures on The Law of the Constitution, which have since been recognised as giving the hallmark statement of the doctrine of parliamentary sovereignty. As Dicey explained, parliamentary sovereignty had a twofold meaning: first, parliament defined as Crown, Lords, and Commons had вЂ?the right to make or unmake any law whatever', and second, вЂ?no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament'. Hence, parliament could not be legally bound by morality or international law or even by its own previous acts. By creating a separate law-making authority, the home rule bill appeared to comВpromise parliament's sovereignty, not only because it resulted in a separate legislature but because it seemed to place the statute in the position of a writВten constitution and thus, in the hands of a judge, above parliament. Bryce had to justify home rule in the face of these objections?⁸ The chief source for BryceвЂ™s constitutional justification of home rule is his speech in parliament on the 1886 bill. But to understand his speech it is necesВsary first to examine the earlier speech given by Sir Henry James, to which BryceвЂ™s was a response. A lawyer of first rank with experience as Solicitor GenВeral and Attorney General, James, though previously a Gladstonian, had made the weightiest constitutional argument against the bill. Conceding that home rule would not destroy parliamentвЂ™s legal sovereignty, James argued that it would impose a moral constraint on parliament so strong as to effectively deВstroy its sovereignty. Perhaps bearing the influence of Dicey,James defined parliamentary sovereignty as resting on two conditions: first, that parliament must be subject to the control of no man or body, and second, that it must alВways have the right to alter its own constitution.
In other words, parliament must have complete and final authority over general and constitutional law. Explaining these conditions, James alluded to Bryce: вЂ?Those two conditions must exist in an Imperial Parliament such as we now have, with no written constitution; but, having, as a writer on the Government Benches has said, a flexible constitution, it can alter the term of its own existenceвЂ™.^[1194] Bryce had inВtroduced the categories of вЂ?flexibleвЂ™ and вЂ?rigidвЂ™ constitutions in a lecture in his capacity as Regius Professor of Civil Law in 1884. The lecture is important beВcause, at the same time as introducing a concept that became key to the conВstitutional debates over home rule it also contains BryceвЂ™s main engagement with Roman imperial history as I explore in greater depth below. In this way, the concept of a flexible constitution serves as the bridge from BryceвЂ™s political speeches on home rule to his historical scholarship. James advanced two arguments in relation to the proposed legislation and the nature of parliamentary sovereignty. First, concerning general legislation, although the bill would grant Ireland legislative autonomy over Irish affairs, it could not, without violating parliamentary sovereignty, take that authority away from Westminster in the abstract. This everyone acknowledged, Gladsto- nian and Unionist alike. And what Westminster retained, Westminster would inevitably employ, James argued. вЂ?There is no difference between abstract right of legislation and right of legislation; and you must exercise the right if you have itвЂ™.^[1195] If Ireland should pass some sort of вЂ?act of injustice and spoliationвЂ™ - James suggested a Land Act that permitted taking farmland from landlords at prairie value - Westminster would be duty-bound to intervene, inevitably provoking more agitation from the Nationalists and resurrecting the question of independence.
James' next argument concerned constitutional legislation.
He thought it was dubious whether or not the imperial parliament would retain the ability to alter its constitution. The requirement that Irish members be recalled to any vote to repeal or alter the Act would, he alleged, leave parliament powerless to alter its own constitution. James acknowledged that the imperial parliament would technically retain the legal power to repeal a home rule Act, but he arВgued that an Irish judge could impose significant moral power over parliament by treating such an Act as a вЂ?legislative contract' - a legal category sometimes used for private acts - and declaring any amendment or repeal by parliament without the recalled Irish members to be a breach of contract. With sound morВal footing, therefore, a judge could refuse to acknowledge the unlawful Act and go on deferring to the Irish parliament. While this would impose no new legal constraint on Westminster, its moral effect would be unavoidable. вЂ?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'.^[1196] The asВsumption underlying James' rhetoric here, that the criteria of constitutionality are not only legal but also moral, was not idiosyncratic. Dicey had discussed the extra-legal quality of many important constitutional conventions in Law of the Constitution?^[1197] ^{^[1198] For Dicey, constitutional conventions had a moral quality. Sometimes he referred to them as вЂ?constitutional morality'.33 As James underВstood it, then, parliamentary sovereignty had both a legal and a moral dimenВsion, and a moral constraint would be just as destructive of вЂ?sovereignty' as a legal constraint. Four days after James' speech Bryce took the cue and responded with his own.3^[1199] As to James' first argument, regarding general legislation, Bryce defendВed the possibility of having an вЂ?abstract', unexercised right.
вЂ?There, indeed, is a difference between two kinds of rights - rights which you put in constant exerВcise, and rights which you suffer to lie dormant'^[1200] As вЂ?a matter of pure right', parliament would retain its sovereignty over Ireland вЂ?for the simple reason that we cannot divest ourselves of it'. But as a matter of practice, parliament would abstain from legislating over those matters which it had granted to the Irish parliament and thus вЂ?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 ourselvesвЂ™.^[1201] Put differently, вЂ?as a matter of strict lawвЂ™, parliament would retain its supremacy over Ireland, вЂ?but subject to the moral obligation of not exercising its right save in case of necessityвЂ™^[1202] Although Bryce did not go so far as to say it, with this answer he implied that in JamesвЂ™ hypothetical case of an unjust Irish Land Act, parliamentвЂ™s duty would not be to intervene but to allow the injustice for the sake of Irish national self-determination, so long as it was truly an Irish matter and not of concern to the greater Empire. Bryce pointed out that such non-interference was the custom of British policy toВwards 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 impossible - nor even on the establishment of a new moral convention to condition parliamentвЂ™s legal sovereignty, but rather on the extension of an existing moral convention into a new set of relations. Bryce invoked the idea of moral convention in response to JamesвЂ™ second argument as well, salvaging his concept of constitutional flexibility. Accepting JamesвЂ™ characterisation of Clause 39 - which required the recall of Irish memВbers to alter the Act - as a parliamentary contract or вЂ?compactвЂ™ that would imВpose a вЂ?moralвЂ™ constraint on parliament, Bryce nonetheless denied that parliaВmentary contracts should be understood as destructive of parliamentary sovereignty.3^[1203] вЂ?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 StatuteвЂ™^[1204] Bryce even went so far as to say that this moral constraint was so strong that it did not need to be set down in writing, even though in the bill it was.
вЂ?Even if that clause did not stand in the Bill, we should be bound in honour and good faithвЂ™ to summon back the Irish members.^[1205] Being a contract, this part of the Bill imposed on Ireland the same moral duty to observe the terms of the Bill, so that if they should violate it, Bryce said, the right to alter or repeal the Act uniВlaterally, вЂ?which is in any case a legal right on our side would become also a moral rightвЂ™^[1206] An obvious weakness of this argument, for which Bryce was criticised later in the debate, was the vagueness of what would constitute a breach of good faith on Ireland's part.^[1207] But that was a comparatively minor issue next to the overarching disagreement about parliamentary sovereignty. вЂ?[T]he imposition of such a moral obligation as this is not a change which will alter the general character of the Constitution', Bryce asserted. вЂ?It will leave the sovereignty of Parliament and the consequent flexibility of the Constitution as they were beВfore, since means are provided whereby we can repeal the Act and regain any freedom which it may be supposed we are now morally, though not legally, parting with'^[1208] ^{^[1209] Bryce thus agreed with James that the bill would constrain parВliament's sovereignty morally though not legally, but where James saw this as the destruction of parliamentary sovereignty per se, Bryce saw it as nothing new. In support, he cited other parliamentary contracts, including those with railway companies and municipalities: вЂ?those who lend money to the MuniciВpality, or take shares in the Company, do so on the faith of the engagement made by the Act which constitutes the Body'.44 Legally, parliament was perВfectly free to break these contracts, but at the level of вЂ?honour and good faith' it was bound to honour them. Since such engagements had never been felt to compromise parliamentary sovereignty and constitutional flexibility, Bryce implied, neither should home rule. In short, those who objected to home rule on grounds of parliamentary sovereignty simply misunderstood parliamentary sovereignty, conceptually and historically.}
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Source: Cavanagh Edward (ed.). Empire and Legal Thought: Ideas and Institutions from Antiquity to Modernity. Brill,2020. вЂ” 634 p.. 2020

Bryce and Home Rule

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