Introduction to the Study of the Law of the Constitution. A. V. Dicey

       X. Martial Law in England during Time of War or Insurrection

       XI. Constitution of the Tribunal des Conflits

       XII. Proceedings Against the Crown

       XIII. Parliament Act, 1911

       Index

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PUBLISHER’S NOTE

      A. V. Dicey’s Introduction to the Study of the Law of the Constitution was first published in 1885 in London by Macmillan and Co. New editions were issued by the same publisher in 1886, 1889, 1893, 1897, 1902, and 1908. In each of these editions, Dicey attempted to reflect such constitutional changes as he believed had occurred since the previous edition.

      When he prepared an eighth edition in 1914 (the eighth edition was published in 1915, but Dicey dated his preface in 1914, Dicey left the text as it had been in the seventh edition of 1908 but added a long introduction in which he discussed both actual changes in the British Constitution and various changes that were then under discussion.

      In 1939, a ninth edition was prepared under the editorship of E. C. S. Wade. In this edition, a long introduction by Wade was substituted for Dicey’s introduction to the eighth edition, and Dicey’s appendix was omitted in favor of one by Wade. This edition was reprinted several times.

      This Liberty Fund edition is based on the eighth edition, published in 1915, since this was the last edition that Dicey himself prepared.

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FOREWORD

      Very few jurists ever put forward doctrines of constitutional law which become not merely classic but which remain alive as standards. A year after the publication of Albert Venn Dicey’s Law of the Constitution in 1885, Gladstone already was reading it aloud in Parliament, citing it as an authority. Half a century later these doctrines were still regarded so essential and fundamental that a special inquiry was necessary to determine whether more recent constitutional changes did not infringe on them. The Donoughmore Committee, whose Report of the Committee on Ministers’ Powers appeared in 1932, endorsed those principles as a guide to further practice. Now, nearly a century later, Britain in large measure is still on the Dicey standard and so, too, is the United States. The doctrines, and even the names by which they are designated, remain part of the equipment of the student of public law. Dicey’s analysis of legislative power and constitutional conventions must still be considered by anyone who desires to deal with the foundations of Anglo-American constitutional law simply because Dicey analyzed those foundations and enunciated principles, with a power and clarity never before or since attained that make those foundations intelligible.

      I

      Albert Venn Dicey was born 4 February 1835 at Claybrook Hall in Leicestershire, England, and he died in London 7 April 1922. He was

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      the third son of Thomas Edward Dicey, a leading journalist of his time, by his wife Anne Mary, younger daughter of James Stephen, master in chancery. The Venn family name was given to him in honor of John Venn, the leader of the Clapham Evangelicals, whose daugher Jane married Sir James Stephen, Mrs. Dicey’s brother and the elder Dicey’s closest friend. The well-known Victorian scholars and publicists Sir Leslie Stephen and Sir James FitzJames Stephen were Albert Dicey’s cousins. The Venns were linked by marriage to the Wedgwoods and the Darwins. Through the marriage of his parents Albert Dicey was born into what Lord Annan has called the Victorian intellectual aristocracy.

      Even though Albert Dicey’s parents had wed in 1814, just before the final defeat of Napoleon at Waterloo, there were no children born of the marriage until 1831. His parents, for reasons never publicly disclosed by them or their children, took the step, somewhat unusual for a middle class family, of educating their children at home; but Dicey in an “Autobiographical Fragment” surmised

      that among Whigs and especially among Whigs who, as was the case with my parents, combined a firm belief in the political principles of the Whig party with an equally firm belief in the best and most tolerant Evangelicism in matters of religion, there had grown up a suspicion that the public school system of England was marked by some very strong defects which the salutary influence of education at home might easily correct.

      The results of this tuition at home were in every way fortunate.

      His father had graduated from Trinity College, Cambridge as a senior wrangler in mathematics in 1811, whereupon he assumed full editorial control of the Northampton Mercury, one of the oldest newspapers in the country and the basis of the family’s publishing business. His mother was gifted in languages. Besides training him in English composition, she taught him Greek and Latin as well as French and German, which was unusual even at that time and in that circle of austere devotion to intellectual things. Dicey recounts a story about his mother that bears retelling: it reveals something of his mother’s intellectual power and influence as well as conveying an insight into Dicey’s extreme modesty.

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      My mother had been reading with me [in 1848] the First Book of the Iliad. She dined on that evening at a house of good friends, among whom, naturally enough, an expression from that book, which we had noticed in the morning, was cited in Greek. My mother told me, when she came home, her amusement at hearing the words quoted, over which we had puzzled ourselves. But she added at once, “of course I did not let anyone perceive that I understood what the words meant.”

      An obstetrical error at the time of Dicey’s premature birth left him with a muscular weakness that he bore all his life. The severity of the disorder is hard to judge, but at times it was so marked that he could not write at all; most of his life he could not write without taking frequent pauses. The affliction was severe enough to make him something of a physical oddity and to raise the question whether he would be strong enough to leave home before the age of seventeen, when he was sent to King’s College School in London.

      In 1854, after two years at King’s College School, Dicey matriculated at Balliol College, Oxford, where he became a pupil of Benjamin Jowett. Under Jowett’s personal supervision, which was kind but stringent, Dicey flourished and received a first class in classical moderations in 1856 and in literae humaniores in 1858. His own intellectual fervor and the reforming spirit of Jowett led Dicey, encouraged by this academic distinction, to join with other Balliol men, under the leadership of John Nichol, to form a literary society—the Old Mortality Society. This society, which has attracted considerable scholarly interest because of the later fame of many of its members, was a forum in which serious undergraduates could sharpen their intellects on questions that might lie outside their normal course of study by presenting papers which were followed by rigorous discussion. Membership and activity in the Old Mortality Society was especially important for Dicey because it gave him self-confidence in public speaking, at which, by all accounts, he became a master. In 1859 he was elected president of the Oxford Union. Although the presentations and discussions of the Old Mortality were academic, theoretical, and speculative, removed from the conditions of the real world, it bears mention that from time to time, particularly at the prodding of T.H. Green, the society did take up contemporary questions, political,

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      social,