The Rule of Law

Albert Venn Dicey, Victorian Jurist

Richard A. Cosgrove

• Publisher: The University of North Carolina Press
• Year: 2017
• Print ISBN: 9780807873311, 9780807814109
• eBook ISBN: 9780807873328
• Topic: Droit
• Subtopic: Théorie et pratique du droit

So commonplace has the term rule of law become that few recognize its source as Dicey's Introduction to the Study of the Law of the Constitution. Cosgrove examines the life and career of Dicey, the most influential constitutional authority of late Victorian and Edwardian Britain, showing how his critical and intellectual powers were accompanied by a simplicity of character and wit. Dicey's contribution to the history of law is described as is his place in Victorian society.

Originally published 1980.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

CHAPTER ONE. THE BALLIOL YEARS, 1835–1861

ALBERT VENN DICEY came from a family whose first known forebear was Thomas Dicey, born in Leicestershire about 1660 and a journeyman of no great accomplishment. Toward the end of the seventeenth century Thomas entered into a profitable partnership with a Londoner named Sutton to produce certain patent medicines, especially “Daffy’s Elixer,” which peddlers sold on their circuits through the countryside. Thomas Dicey apprenticed his two sons, William and Cluer, to the printing trade, and the older, William, decided that these itinerant venders might well carry newspapers on their rounds. After one unsuccessful publishing venture in 1718 at St. Ives, William Dicey helped found the Northampton Mercury, first published on 2 May 1720, which formed the basis of Dicey family fortunes until well into the nineteenth century.

At the start of the eighteenth century the family also inaugurated the publication of chapbooks, the cheap printed literature that exercised a potent influence in the education and, it was hoped, the moral elevation of the poorer classes. Chapbooks were the special province of Cluer Dicey, who supervised their production and made the format attractive to a growing readership.¹ For half a century the Diceys dominated this field and inspired a host of imitators. The family prospered because of these successful printing ventures, which raised them from the obscurity of the previous century.

Throughout the eighteenth century the Diceys passed the newspaper from generation to generation until Albert’s grandfather, Thomas Dicey, took over management in 1776. By 1792 Thomas Dicey enjoyed a fortune large enough to enable him to purchase Claybrook Hall, near Lutterworth in Northamptonshire. In 1807, on the death of his father, Thomas Edward Dicey assumed authority over the Mercury, though his personal direction began only after his graduation from Cambridge in 1811. He retained the editorship of the paper until his death in 1858. In 1814 Dicey married Anne Mary Stephen, daughter of James Stephen, a step that brought the Dicey family within the orbit of the Clapham sect. This marriage united two dynamic movements that reached their zenith in nineteenth-century England, the political liberalism of the husband and the Evangelical zeal of the wife. The combination made the Diceys a paramount example of the Victorian intellectual aristocracy.² Through this marriage the Diceys entered the world of such famous Evangelical families as the Venns and Stephens; Albert Dicey’s middle name was taken from Evangelical leader John Venn.

Albert Venn Dicey was born at Claybrook Hall on 4 February 1835, the third of four brothers. Family tradition holds that the muscular weakness that plagued Dicey all his life stemmed from an obstetrical error at the time of his premature birth. Though his appearance always had a touch of the ridiculous because of his inability entirely to control his physical movements, Albert enjoyed good health for most of his long life and learned early in childhood never to strain his limited powers. He matured into a tall, angular young man, and surviving photographs invest him with a somber, almost forbidding air. On account of his youthful precarious health he enjoyed a more subdued childhood than most, as his cousin John Venn testified: “As a boy I had not your sense of proportion or of historic dignity.”³ In adulthood Dicey matured into a gifted conversationalist whose watchword was that it was better to be flippant than dull, a piece of advice he had appropriated while an undergraduate.⁴ From early childhood, his parents’ belief in the value of education and health considerations pointed him exclusively toward the intellectual life.

In later life Dicey recalled that his earliest memories possessed none of the melancholy associated in popular imagination with an Evangelical upbringing.⁵ The portrait he left described a household of boys who received a strict education tempered by affection and merriment. Until he was seventeen years old his education took place at home, primarily under the aegis of his mother. Frequent trips to the Continent constituted the only outside influence in this personal and tightly structured system of education. Both parents, according to Dicey, had inherited “grave suspicions” of the public schools from their Evangelical background.⁶ By the 1840s the public school system, in their estimation, still possessed defects that far outweighed its virtues, and thus his parents educated all their children at home.⁷ Dicey never resented this sheltered education, for he often attested to the value of his close relationship with his parents. Friends of the family also contributed to his educational experience, particularly his cousins, Sarah Stephen and Caroline Emilia Stephen.⁸ Friends and relations afforded the young man a unique opportunity to share the intellectual life of his parents, and they focused his attention on political affairs from an early age.

From this domestic education emanated two of the most fundamental influences on Dicey’s personal growth. From his father he derived a commitment to classical liberalism that later events shook but never destroyed. Dicey never wrote of his father without the greatest reverence for the political and moral attitudes he had expressed during his long editorship. His father’s keen sense of justice, exhibited in his unswerving detestation of every kind of unfairness, oppression, and cruelty, made him a paragon of wisdom to the son.⁹ The elder Dicey combined the approval of reform without revolution, devotion to free trade, and belief in the value of the free exchange of ideas to which Dicey adhered for the remainder of his life. At the time of his departure from the parental household Albert possessed a liberalism characterized not only by specific doctrines but also by an approach to life that held human reason capable of resolving the manifold problems facing society.

His mother exercised no less an influence upon the young Dicey. She had guided his education and stressed instruction in Greek, Latin, French, and German. She possessed a talent for teaching and adjusted her lessons to the capabilities of each child. Dicey often remembered with gratitude “the immense patience and care his mother expended in trying to teach his incapable fingers to do their work.”¹⁰ In the case of Albert, she carefully framed assignments in the form of conversation so as not to overtax his limited strength.¹¹ Her common sense approach to education doubtless benefited Albert more than the rigors of a public school.

Important as this aspect of her maternal care was, the most influential legacy Dicey obtained from his mother was a secularized version of Evangelical enthusiasm. He was never a practicing Christian in the ordinary sense, for he retained its spirit but “cared less than nothing for dogma.”¹² Dicey never lost interest in religion as part of the human experience, but conventional religious beliefs vanished under a withering rationalism. He later termed his religious views “so vague & so dubious that ‘synthesis’ or belief of any kind is the last thing to be expected from me.”¹³ Formed in a crucible of rationalism, he could not tolerate faith without intellectual justification. From his earliest days he distrusted enthusiasm, and this made him throughout his life a warrior against the evils of fanaticism associated with emotional religiosity. He played no favorites, as Catholic and Protestant bigotry alike aroused his wrath, whether too great power in Catholic Ireland or denial of free speech to Catholics in other parts of the United Kingdom.

The primary indication of his mature religious tendencies may be seen in his membership in the Synthetic Society, a group of prominent late Victorians who met sporadically from 1898 to 1908 in order to find common doctrine among Christians divided by controversy.¹⁴ Dicey found the meetings too diffuse for his taste, but the discussions of the society stimulated his curiosity about the historical evidence for Christian dogma.¹⁵ His speculations about the early history of Christianity reflected intellectual concern only, for he concluded that none of the usual beliefs about the first Christian century had any historical basis.¹⁶ On these grounds he emphasized the role of myth in the eventual triumph of Christianity. Reason as the ultimate criterion of religious belief forced him to reject any form of mysticism or, as he once denounced it, “Spiritualism.”¹⁷ Specific Christian doctrines never appealed to him; about the knowledge of Christ he once wrote: “Surely if you & I look at the life of Jesus in the same way as that in which we should look at the life of Caesar or Mahomet the belief in the miraculous birth & the disbelief in the existence of Jesus must seem all but equal absurdities.”¹⁸ Other incidents like the crucifixion and resurrection he also felt had little historical evidence to support belief.¹⁹ Dicey never missed the consolation of religion, because in his youth he found a substitute that more than compensated for the vagueness of his beliefs.

In place of discredited dogmas, Evangelical fervor manifested itself in an enduring commitment to “useful work” that permeated his activities to the day of his death. Never prone to abstract philosophical musings, Dicey believed “we must find satisfaction in making the best or the most of whatever work one has in hand, and that one’s appropriate work is the free development of such faculties as one may happen to possess.”²⁰ He embodied this creed to the extent that he often doubted the success of his own career because he had not obtained the most from his abilities. Reassurance came from an existential joy in work for its own sake; if one worked as diligently as possible, one must be satisfied with that, no matter what the outcome. “I am certain that the only way to happiness,” he once wrote, “is to become engrossed in the work you have in hand, & try, if possible, that it shall be good work.”²¹ The need for constant application to his work supplanted the religious faith of his ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. The Balliol Years, 1835-1861
• 2. Ambition Denied, 1861-1882
• 3. The Restoration of the Vinerian Chair, 1882-1909
• 4. The Constitutional Expert:
• 5. The Political Expert:
• 6. Dicey and Ireland: The Making of a Unionist
• 7. The Life of a Unionist, 1887-1898
• 8. The Lawyer as Historian:
• 9. The Decline of England, 1899-1914
• 10. The Struggle for the Union Resumed
• 11. The Impact of War, 1914-1918
• 12. The Last Years, 1918–1922
• 13. Conclusion
• Bibliography
• Index