The Victorians

by Jacob Rees-Mogg

  Dicey’s Introduction to the Study of the Law of the Constitution became an instant sensation, being both understandable to the lay reader and inescapably influential on generations of jurists. In essence, it told a story about Victorian Britain which immensely pleased Victorian Britons. ‘The Rule of Law’, for example, meant that here we had simply regular law, rather than arbitrary or even discretionary law. After all, nothing offended Victorian sensibilities more than inconsistency and unfairness. ‘Englishmen,’ Dicey declared, ‘are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else.’ This, British Victorians could reflect happily, was a blessed state enjoyed almost nowhere elsewhere in the world outside the Empire.

  There was, Dicey went on, a glorious equality before the law. There were no legally privileged classes or state officials. This was a contrast to what prevailed even in western Europe, to say nothing of the rest of the world. To add to the happy Whiggish exceptionalism of this tale, continental Europeans enjoyed every sort of right on paper, as they still do, in virtually every mainland country. These rights emerged from the fancy principles of their individual national constitutions, habitually phrased in the most idealistic terms as to the specific rights the piece of paper in question guaranteed. In Britain, no such abstract rights were listed. Instead, actual rights sheltered in the precedent of the law and in the ability of the courts to protect them from the state. Dicey liked to point to the Habeas Corpus Act, ‘which declared no principle and defined no rights but was worth a hundred constitutional assurances’. In Dicey’s Britain, rights were held from the past, not bestowed graciously by politicians today who might take it into their heads to remove those same rights tomorrow.

  For British officials, unlike so many of their counterparts abroad, could not claim as a defence against charges of breaking the law that they were ‘acting under order of authority’. In other words, it was not possible lawfully to obey an unlawful command, so the official was personally liable in law for his own lawbreaking. It is hard to think of a better deterrent against state excess. Indeed, the state, in Dicey’s conception of it, which was to say, as he taught judges to understand it, had at every turn to be aware to behave lawfully. All government spending, for instance, had to be assented to by Parliament. Ministers were legally responsible for every act they took on behalf of the Crown. This lawfulness was not and in many cases still is not the defining characteristic of other states. Something exceptional took place in the United Kingdom, implied Dicey, and the Victorians, thanks to men like Dicey, the books he wrote and the teaching he handed down, acknowledged what they had and spread the good news accordingly.

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  Dicey and James Bryce travelled to the United States together in 1870, and in good, industrious Victorian fashion this trip spurred the writing of two celebrated books, Bryce’s The American Commonwealth and Dicey’s The Law of the Constitution. Bryce was also ensconced at Oxford at this time, as Regius Professor of Civil Law. The three volumes of The American Commonwealth would profoundly influence the drafting of the Australian Constitution in the mid-1890s. As for Dicey, he too absorbed much from his American experience. He made friends for life in the course of this trip, including the Irish-born Edwin Lawrence Godkin, influential editor of the Nation, who kept Dicey financially buoyant during an expensive journey by way of many book reviews; Charles William Eliot, who was President of Harvard University, the law school admired so much by Dicey; and Oliver Wendell Holmes, who practised law at Boston and who was still some years from occupying a seat on the Supreme Court. Dicey also learned first-hand much about the American principle of federalism, which governed the relationship between the individual states and the American government, and he studied the United States Constitution, which preserved much that was good in law and government while also preserving that which was less good, in the process allowing and indeed sustaining weak government.

  There were, then, a great many observations to make and lessons to learn, perhaps the chief of which was absorbed at the state convention of New York’s Democratic Party. Here, Dicey was able to watch Tammany Hall politics in full spate and here he saw the real corruption which perverted the lofty republican ideals in which American democracy was cloaked. As a result, he gained, to put it mildly, prime insights into what was wrong with politics and politicians and he never quite shook off his distaste for party machines. Inevitably, Bryce watched the same political show and overcame his repulsion to recognise US conventions as an ultimately encouraging riot of popular participation and it was Bryce who would succeed in politics.

  Dicey, however, recognised that party wirepullers could negate democracy by ‘managing’ it in this way. This much was evident in Tammany Hall and the same lesson could be applied elsewhere. In general terms, American federalism left Dicey with an abiding certainty that a people and its Parliament was the correct way of ordering a state and that a constitution supreme in itself was a mistake. Time has proved Dicey correct. It has become a cliché to talk of the ‘black-robed legislators’ of the US Supreme Court, substituting their judgements for what would in the United Kingdom be democratic political decisions, and this was a danger Dicey clearly foresaw as being inherent in the US system.

  Avoiding what he saw as being the dangers plainly evident elsewhere, in this case the weakness and division so glaringly on display in the United States, was for Dicey merely one more of his ‘obvious things’. He would return from his visit all the more convinced of the superiority of the British Constitution, and all the more determined to protect it. He soon concluded that there was no more obvious danger to its integrity than that posed by the prospect of Irish Home Rule.

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  Dicey, as he surveyed the changing political landscape of Britain, had now definitively shifted his political ground. Radical blood still coursed in his veins but its heat had been tempered by years of surveying and teaching the law, watching the changing politics of the times and assessing the strengths of the Constitution. In particular, he could see that the constitutional form of the United Kingdom was about to be tested to its core. The question was whether the country’s arrangements would hold.

  The test would come because of Westminster parliamentary arithmetic and political affairs in Ireland. In Victorian times British and Irish politics were thoroughly meshed together, the ability of Britain to influence the political and economic scene in Ireland and the Irish ability to challenge the stability and security of British politics. From Daniel O’Connell’s ‘monster meetings’ and their impact on the question of Catholic Emancipation, to the fall of Peel’s government over a matter of Irish-specific legislation and to a host of other questions, challenges and dilemmas, the Irish Question was never very far away.

  From the 1870s, a new political dispensation was developing in Ireland. The Irish Ascendancy, a waning force even during the time of Peel’s spell as Chief Secretary to Ireland over fifty years earlier, was now a spent force. Irish nationalism was rising and it was gaining a solid footing in a country where the tentative process of land reform begun by Gladstone was helping the rural Catholic Irish, while at the same time a new educated Catholic urban middle class, with financial clout and money to spend, was assuming control of the levers of economic power in Ireland. Add to this a post-Emancipation Catholic Church in Ireland that was now in a position of dominance, its influence embodied in the new ecclesiastical architecture of Pugin and others, and it was clear to all observers that Ireland was in the process of changing. With this new flourishing mood of nationalism came a wish for a restored national Parliament in Dublin, to replace the ancient assembly that had dissolved itself following the passing of the Act of Union. This demand, however, stopped well short of outright independence for Ireland. There was a rising tide in favour of ‘Home Rule’, of a measure of devolution or self-government for Ireland, under the Crown.

  For a watching Dicey, such a change to the country’s constitutional
arrangements was anathema and now he resolved, on setting out from Oxford, to be the guardian of the Union. Here was the family vein of evangelism once more on display, though as he remarked to his fellow Liberal Unionist, the former Lord Chancellor, Lord Selborne, it was more the case that exacting self-knowledge was the order of the day: ‘You will say that I have wandered into a kind of religion rather than politics. I cannot separate the two. Fervour of feeling is essential to vigour of action. You will never triumph unless you make a kind of religion of your politics, or turn your politics into a kind of religion.’ He was as good as his word, for no meeting place was too distant, no congregation too small during these years for Dicey.

  Dicey had no animus against the Irish, against Ireland or against Irish Catholicism. He was opposed to religious prejudice, which ran counter to his deepest impulses. This in turn meant that he was sympathetic to the position of the Irish in Britain itself and sympathetic to their call for equality. He found the English Protestant prejudice against Irish Catholics disagreeable. Similarly he viewed elements in the politics and culture of the Catholic Church in Ireland as equally unsatisfactory. His thoroughgoing liberalism led him to support reform and relief wherever it could be extended. What began, gradually, to emerge from Ireland after Emancipation in 1829 in the form of Isaac Butt’s Land League and then, under the leadership of Charles Stewart Parnell, a disciplined and powerful Irish Parliamentary Party (IPP) at Westminster, was something quite different. It was Irish nationalism and this ran counter to the Constitution so could not be supported.

  The young Dicey sympathised with liberal-nationalism when he saw it, as in Germany, Hungary, Italy. This had been his creed. Yet he watched nationalism uniting states in all of these instances, making them stronger and more secure. He had been on the side of the Union during the American Civil War and now, with his own Union under attack, as he saw it, from within, he was steadfastly on the unionist side again.

  For all that Dicey admitted clear instances of British misrule in Ireland and wished to see an amelioration of conditions there, his ultimate answer was always that Ireland must be governed in the same way as the rest of the country and that its politicians had a duty to make this happen. Such faults as existed came about when Ireland was not governed as an intrinsic part of the United Kingdom. Any economic woes she had should be dealt with fairly and promptly, because if Irish prosperity was the issue, then that prosperity could be assured by staying within the Union. Irish economic sorrows, though they blighted many lives, were never the whole issue and a pure feeling of national identity underpinned the movement.

  Intimidation, violence, boycotting and crime all accompanied the cry for Home Rule in Ireland. At Westminster, the parliamentary obstructionism perfected by Parnell and his followers destroyed the old self-restraint and self-management of the House of Commons. There were major consequences as a result of this behaviour. In response to Parnell’s disruption of its proceedings, the government took control of the business of the Commons. Outside Westminster, there was disorder and rising tension too. When Gladstone’s government sought to face down the agitation of the Home Rulers in Ireland, it deployed the usual coercive methods. None of this could appeal to Dicey. He believed government coercion was worse than any parliamentary obstructionism. If there were trouble in Ireland, he argued, it came about precisely because of misgovernment. Hence, when in 1881 Gladstone’s regime seized and imprisoned Parnell, inevitably Dicey objected. He could do no other.

  Equal rule was the cry maintained by Dicey, equal rule that derived its force and moral power directly from the glories of English and British law. Even for Dicey there were some exceptions. He lowered his legal and moral standards by arguing for the ending of jury trials in Ireland in areas where it was understood that a jury would refuse to convict even the obviously guilty.fn1 Yet he was able to sustain his arguments by deploring the system itself. If the legal system was failing in Ireland, it was because of problems in unionist ideology. Whereas union with Scotland in 1707 had preserved the best of that country’s institutions, in Ireland no similar process had occurred.

  Where Dicey saw far further than most of his contemporaries was in understanding what would not work. He gazed at all the various fiddly schemes erected by a variety of cranks as ‘solutions’ to the Irish Question and saw them as so much evasion and self-delusion. The choice was stark, it was separation or Union. He even allowed a certain admiration for the open and by implication honest separatists. To Dicey, the notion of ‘Home Rule’ simply would not work. The Constitution would be divided against itself, sovereignty would be ripped apart. After all, what would be sovereign? The British nation, the British Parliament or the ‘Home Rule’ Parliament in Dublin and the nation it sought to govern? Home Rule might come about, but the matter would be no nearer being settled. Why, upon attaining Home Rule, should the very people who had sought it be satisfied? What sincere basis was there for believing that Home Rule would or could have set a boundary on the march of a nation?

  By the mid-1880, therefore, Dicey was convinced that Home Rule could not be regarded as a middle way between the destruction of the Union and its preservation. It would simply be the destructive element with deceit heaped on top. Dicey understood what nationalists understood, perhaps because he was one. He was a unionist-nationalist. His unionist-nationalism had the Union as the object of his patriotism while Irish nationalists had Ireland as the object of theirs. There could be no meeting point between these two propositions, as they could not both be true simultaneously. Either the whole United Kingdom was together the nation or Ireland was a nation alone. The propositions were identical but exclusive and a certain fatal political unwillingness to face up to this hard reality was to be the source of much trouble to come.

  Dicey understood the psyche of nationalism but he certainly could not foresee what proved to be the great trauma of his life. He, no more than anyone else, at the time or since, could anticipate the William Gladstone of early 1880s coercion becoming, in short order, the William Gladstone of mid-1880s Home Rule. A policy universally excoriated by almost all British politicians suddenly and without minimal explanation became the policy of the British Liberal Party. This was a policy which, as Dicey was always at pains to point out, meant the end of that particular state.

  There was nothing in Ireland which led to Dicey’s unionism. There was no ancestral tie, no lure, no pull. His wife was a Bonham Carter there were no encumbered estates or fond childhood memories. Dicey was a unionist because he thought that unionism provided the best context and dispensation for everyone and that any change to it of the sort encompassed by Home Rule could only leave everyone worse off. He noted too the contrast between, on the one hand, this Anglo-Irish dispute and, on the other, political disputes as they worked themselves out in other states. This was one of the key elements to Home Rule. It happened in Britain. Had what Irish nationalists proposed, sundering the state in which they unhappily found themselves, been proposed anywhere else, it would have met with a pointedly non-British response. The British did not give the answer the United States gave to the Confederates or which the unified Germans gave to the Bavarians or Hanoverians. These disputes had happened within recent decades and must have influenced Dicey. Germany, the United States and Italy had all pressed themselves together mere years before Charles Stewart Parnell proposed that Dicey’s country should be undone and they had spilled a good deal of blood in the process. His reaction, eminently constitutional as it was, is also entirely understandable.

  William Gladstone adopted Home Rule in 1885, in part to gain the support of the Irish Parliamentary Party in the Commons and so preserve his government, and the price for this support for Home Rule was a split in his Liberal Party. He lost the support both of what could still be termed the ‘Whig’ element of the party under Hartington, the future eighth Duke of Devonshire, and of many of the radicals clustered round Joseph Chamberlain. Dicey went too. He and his fellow Liberal Unionists found that this was not a c
risis of their making. It had been forced on them by Gladstone. There are shades here of Peel’s dealing with his Conservative Party, for these disparate Liberals together took the view that they had not stood for election or supported the party with Home Rule remotely in sight as a Liberal objective. It was not a policy they could follow, so they were obliged to step back from the party they loved. It is worth noting at this point that James Bryce, his Belfast birth notwithstanding, remained loyal to Gladstone at this tense time and that he and Dicey managed to remain friends through all the years of Home Rule tumult still to come.

  Upon his departure from the Liberal Party, Dicey immediately joined the Liberal Committee for the Maintenance of the Union. In due course, after nearly thirty years of separate but fused existence, the Liberal Unionists and Conservatives would formally merge in 1912 as the Conservative and Unionist Party but this was far into the future. Now, and for the first years of their existence apart from the Liberals, the Liberal Unionists excited every reaction from fury to comedy. Oscar Wilde caught something of this peculiar moment in British history in The Importance of Being Earnest:

  LADY BRACKNELL: [Sternly] What are your politics?

  JACK: Well, I am afraid I really have none. I am a Liberal Unionist.

  LADY BRACKNELL: Oh, they count as Tories. They dine with us. Or come in the evening, at any rate.

  Hartington and Chamberlain were, in their very different ways, professional parliamentarians but Dicey, the adornment of Oxford, was not. Alistair Cooke and John Vincent in their classic study of the period, The Governing Passion, go too far when they lift Dicey into that cadre of ‘chiefly underemployed journalists, academics and members of the upper classes whom for one reason or another life had excluded from a political role’. Such a cadre did indeed become a feature of late Victorian life but it is unduly harsh to include the Vinerian Professor in their number. Dicey emphatically had a political role in the life of Victorian Britain. He wisely stepped out of the cloistered politics of the university precisely so that he could take his place in the public square, where he was more than welcomed by the leaders of political unionism. They benefited from his partisanship, his intellect and his constitutional expertise. His was valuable support to have.