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Ebook Ebook PDF Public Law Text Cases and Materials 4th Edition PDF
Ebook Ebook PDF Public Law Text Cases and Materials 4th Edition PDF
Ebook Ebook PDF Public Law Text Cases and Materials 4th Edition PDF
Public law is amongst the most fast-moving, contentious, and exciting areas of law to study.
This edition of the book has been written during a period of unprecedented change and de-
bate around constitutional issues, most particularly involving Brexit. As we write this Preface
we remain unsure about the United Kingdom’s future relationship with the European Union
following the referendum in June 2016, when 52 per cent of voters chose to ‘leave’ the EU. This
book, however, assumes that the UK will cease to be a member state of the EU in 2019.
There is much written on public law and an ever-growing range of key texts for university
courses on the subject, including on constitutional and administrative law, as it is often re-
ferred to: the big textbooks, shorter works, and a number of ‘text, cases, and materials’ books.
For us, it is this latter type which provides an ideal medium for an account of the legal aspects
of the United Kingdom constitution. There are three main reasons. First, it gives students a
chance to read at first hand the analysis and arguments of academics and participants in the
constitution, most aspects of which are contested: the extracts convey the debates and dis-
agreements most effectively. In selecting the materials for use in this book and adding our
commentaries we have attempted to focus on subjects that are in the mainstream of the ma-
jority of public law or constitutional and administrative law courses in the United Kingdom.
We have focused on legal aspects of the constitution, not least because most users of the book
will be studying public law as a core area of their undergraduate law studies, but we hope that
non-lawyers will also find the book of value.
A second reason for a text, cases, and materials approach is that it is good for presenting
case studies that breathe life into the law. In this book, we look at a variety of constitutional
issues and episodes, including troop deployment powers (Chapter 11); relations between the
House of Commons and House of Lords (Chapter 15); and in relation to the Human Rights
Act 1998, the interaction of school uniform policies and rights to manifest religion, and recent
anti-terrorism legislation in the United Kingdom (both in Chapter 20). The case studies are
designed to encourage readers to ‘drill down’ into specific constitutional goings-on to see how
general principles and processes operate in a particular context and to gain an understanding
of the law that is difficult to achieve when using other types of book.
A third reason is that the text, cases, and materials approach provides students with access
to key sources of law and other materials. This book, for example, provides readers with a care-
fully selected range of extracts from important statutes and leading judgments, as well as from
materials drawn from a wide range of official reports. In our commentary we explain these
extracts and seek to place them in their context.
The best way to learn about constitutional law is to become engaged in the issues.
Recognizing that this cannot be done passively, throughout the book we pose questions that
are intended to prompt readers to check their understanding and to critically reflect on what
they are reading. In this way we hope that the book will be a valuable resource that will com-
plement the work of lecturers and teachers.
Any book of this length requires an organized structure, although we do not assume that all
readers will use the chapters in the order in which they are presented. Because this edition has
been written assuming that the UK will be leaving the EU, the structure of this edition differs
somewhat to that of previous editions.
viii | Preface
Chapters have been renumbered so that the previous ‘Introductions’ to each Part of the
book are now, for ease of reference, treated as a chapter.
In Part II (Executive Functions) Chapter 10 on Prerogative Powers includes a case study on
the Miller case in which the courts held that the Government could not rely on its prerogative
powers to serve notice of the UK’s intention to withdraw from the EU. Chapter 11 is now a
stand-alone case study on the deployment of armed forces abroad.
Chapters on the EU that were previously integrated throughout the book have been moved
and updated to form a new Part V; this contains chapters on the institutions of the European
Union (Chapter 21); joining and leaving the European Union (Chapter 22); and European
Law in the United Kingdom courts (Chapter 23).
The book was finalized in May 2019. The online resources that accompany this book will
enable us to provide regular updates for students studying our changing constitution.
Andrew Le Sueur
Maurice Sunkin
Jo Eric Khushal Murkens
May 2019
NEW TO THIS EDITION
The whole text has been updated to include the principal developments since the 3rd edition,
and in particular to take account of Brexit. As indicated in the Preface, this edition has been
written on the assumption that the UK is leaving the European Union. In addition the fol-
lowing changes have been introduced.
• The chapters have been renumbered so that the previous ‘Introductions’ to each Part of the
book are now, for ease of reference, treated as a chapter.
• Chapter 1 (Introduction to Constitutional Fundamentals) has a new section which pro-
vides an overview of the legal and political developments related to Brexit up to May 2019.
• Chapter 7 (Protecting Rights) considers the Charter of Fundamental Rights in light of the
UK’s withdrawal from the EU.
• Chapter 10 (Prerogative Powers) includes a case study on R (Miller) v Secretary of State for
Exiting the European Union [2017] UKSC 5.
• Chapter 11 is now a stand-alone case study on the deployment of armed forces abroad.
• Chapter 14 (Delegated Legislation) includes discussion of the Public Law Project’s chal-
lenge to the government over access to legal aid (R (on the application of the Public Law
Project) v Lord Chancellor [2016] UKSC 39), as well as a case study on the European Union
(Withdrawal) Bill 2017–18.
• Chapter 17 (The Judiciary) incorporates discussion of the Miller case and the independence
of the judiciary, the duties of the Lord Chancellor, and the freedom of the media.
• Chapter 18 (Administrative Justice: Tribunals and Ombuds) contains discussion of admin-
istrative justice and decision-making, as well as the digitalization of tribunals.
• Chapter 19 (Judicial Review) includes updated figures on the scale of judicial review
and discussion of the recent Privacy International case (R (on the application of Privacy
International) v Investigatory Powers Tribunal and others) [2019] UKSC 22).
• The chapters on the EU (previously Chapters 8, 12, and 18) have been rewritten to take
account of recent developments and have been brought together in a new Part V The
European Union.
ACKNOWLEDGEMENTS
As with the previous three editions, this book is a team effort. We thank those whose words
we have extracted and curated in our efforts to paint a picture of the UK Constitution as
a dynamic and contested system. The whole OUP team have been superbly supportive; in
particular, we thank Emily Cunningham for her enthusiasm and encouragement and all the
production team for their patience while we have navigated the uncertain constitutional ter-
rain in producing this edition. We are grateful to Marie Gill for her work as copy editor, and
to those, including our students, who have provided us with feedback and suggestions for
improving the book. We owe special thanks to Carolin Ott and Lee Marsons for research help
and to Mario Mendez who read and commented in detail on the chapters in Part V. We thank
our partners, families, and friends who were generous with their patience. We are, of course,
responsible for any errors and omissions in the book.
SOURCE ACKNOWLEDGEMENTS
Grateful acknowledgement is made to all the authors and publishers of copyright material
which appears in this book, and in particular to the following for permission to reprint ma-
terial from the sources indicated:
Crown copyright material is reproduced under Class Licence Number C2006010631 with
the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Parliamentary
copyright material is reproduced with the permission of the Controller of Her Majesty’s
Stationary Office on behalf of Parliament.
Cambridge University Press: extracts from N.W. Barber, ‘Prelude to the Separation
of Powers’ [2001] Cambridge Law Journal 59, 71–2; Christopher Forsyth, ‘Of fig leaves
and fairy tales: The ultra vires doctrine, the sovereignty of Parliament and judicial review’
[1996] Cambridge Law Journal 122, 134–40; Paul Craig, ‘Ultra Vires and the Foundations of
Judicial Review’ [1999] Cambridge Law Journal 63, 86–9; H.W.R. Wade, ‘The Basis of Legal
Sovereignty’ [1955] Cambridge Law Journal 172, 174, 187–8; C.J.S. Knight, ‘Bi-polar sover-
eignty restated’ [2009] Cambridge Law Journal 361, 362, 365–6.
European Parliament: Figure 21.2 Turnout in European Parliamentary elections; Box 21.5
Turnout for European Parliament elections by country 1979–2014; Figure 21.6 Presentation
of the OLP.
Financial Times: Figure 22.3 The backstop, Alex Barker [2018] A visual guide to the Brexit
border conundrum from: Why the Irish border backstop could sink a Brexit deal, FT.COM, 15
October 2018. Used under licence from the Financial Times. All Rights Reserved.
Frankfurter Allgemeine Zeitung: Figure 21.1 EU Chart, redrawn from an original first pub-
lished in Frankfurter Allgemeine Zeitung, 1 December 2009.
Graham Gee: extracts from G. Gee, ‘A Tale of Two Constitutional Duties: Liz Truss, Lady
Hale, and Miller’ [2016] Policy Exchange.
The Hansard Society: extract from Hansard Society Commission on the Legislative Process,
Making the Law (1992), pp. 64–5.
House of Lords Reports: extracts are Parliamentary copyright and are reproduced by per-
mission of the Controller of HMSO on behalf of Parliament.
ICLR: extracts from R v Secretary of State for the Home Department, ex parte Pierson [1998]
AC 539, 587–8, Ungoed-Thomas J; Thoburn v Sunderland City Council [2002] EWHC 195
(Admin), Laws LJ, Laws J; Burmah Oil Company v Lord Advocate [1965] AC 75, 99–100; R
v Secretary of State for the Home Department, ex parte the Fire Brigades Union [1995] 2 AC
513, 551–2; R v Secretary of State for the Home Department ex parte Fire Brigades Union and
others [1995] 2 AC 513, 546, 550, Lord Reid; Padfield v Ministry of Agriculture, Fisheries and
Food [1968] AC 997, 1030–3; Blackburn v Attorney General [1971] 1 WLR 1037, 1039–40,
Lord Denning; Anisminic v Foreign Compensation Commission [1969] 2 AC 147; Pickstone v
Freemans Plc [1989] AC 66, 111–12, 123, 125–8; R v North and East Devon Health Authority,
ex parte Coughlan (Secretary of State for Health and anor) [2001] QB 213.
JUSTICE: extracts from A British Bill of Rights: Informing the Debate—The Report of the
JUSTICE Constitution Committee (2008, London: JUSTICE), pp. 55–6; Ann Abraham, The
Parliamentary Ombudsman and Administrative Justice: Shaping the Next 50 Years, JUSTICE,
Tom Sargant Memorial Annual Lecture, October 2011.
xiv | Source Acknowledgements
MIT Press Journals: extract from Andrew Moravcsik, ‘The Origins of Human Rights
Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organisation
217 at 238.
Oxford University Press: extracts from Andrew Le Sueur, ‘Accountability’ in P. Cane
and J. Conaghan (eds) The New Oxford Companion to Law (2008, Oxford: OUP), pp. 7–
8; Ronald Dworkin, ‘Political Judges and the Rule of Law’ in A Matter of Principle (1985,
Oxford: OUP), ch. 1, pp. 11–12; Gary Marks and Liesbet Hooghe, ‘Contrasting Visions of
Multi-level Governance’ in Ian Bache and Matthew Flinders (eds) Multilevel Governance
(2004, Oxford: OUP), ch. 2, pp. 15–16; Anthony King, The British Constitution (2007,
Oxford: OUP), pp. 129–30; Mark Janis, Richard Kay and Anthony Bradley, European Human
Rights Law (2008, Oxford: OUP), pp. 5–8; Anthony Lester QC, ‘Human Rights and the British
Constitution’ in J. Jowell and D. Oliver (eds) The Changing Constitution, 7th edn (2011,
Oxford: OUP), ch. 3, pp. 75–6; Richard Clayton and Hugh Tomlinson, The Law of Human
Rights (2000, Oxford: OUP), pp. 59–61; Maurice Sunkin, ‘Crown’ in P. Cane and J. Conaghan
(eds), The New Oxford Companion to Law (2008, Oxford: OUP), pp. 286–7; I. Bache, S. George,
S. Bulmer, and O. Parker, The Politics in the European Union, 4th edn (2015, Oxford: OUP),
pp. 238–9; M. Shackleton, ‘The European Parliament’, in D. Hodson and J. Peterson (eds)
The Institutions of the European Union, 4th edn (2017, Oxford: OUP), pp. 145-146, 155-156 .
Reproduced with permission of the Licensor through PLSclear.
Oxford University Press Journals: extracts from Jo Murkens, ‘The Quest for Constitutionalism
in UK Public Law Discourse’ (2009) 29 OJLS 3, 430–2, 454–5; Aileen Kavanagh, ‘The Role of
Parliamentary Intention in Adjudication under the Human Rights Act 1998’ [2006] Oxford
Journal of Legal Studies 26(1): 179; P. P. Craig, ‘Sovereignty of the United Kingdom Parliament
after Factortame’ (1991) 11 Yearbook of European Law 221, 250–1; G. Phillipson, ‘EU Law
as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the
European Union’ (2017) 36(1) Yearbook of European Law pp.46–93, 81-83.
Palgrave Macmillan: extracts from A.V. Dicey, Introduction to the Study of the Law of
the Constitution (1885; 10th edn 1959, London: Macmillan & Co), pp. 406–10 (Chapter
XIII ‘Relation between Parliamentary Sovereignty and the Rule of Law’). Parliamentary &
Health Service Ombudsman: extracts from some of the main investigations undertaken
by the Parliamentary ombudsman and reproduced from a timeline published to mark the
Parliamentary and Health Service Ombudsman’s 40th anniversary in 2007.
Public Law Project: extracts from R. Thomas and J. Tomlinson, ‘The Digitalisation of
Tribunals: What we know and what we need to know’ [2018] Public Law Project.
RELX (UK) Limited, trading as LexisNexis: extracts from Macarthy’s v Smith [1979] 3 All
ER 325, 328–31.
Scotland Office: extract from Commission on Scottish Devolution, Serving Scotland
Better: Scotland and the United Kingdom in the 21st Century (2009).
Scottish Council of Law Reporting: extracts from Whaley v Lord Watson Of Invergowrie
[2000] SC 340, Lord President.
Springer Nature BV: extracts from S.L. Greer, ‘Whitehall’, in R. Hazell (ed.) Constitutional
Futures Revisited: Britain’s Constitution to 2020 (2008, Basingstoke: Palgrave Macmillan), ch.
8, p. 125. Reproduced with permission of the Licensor through PLSclear.
Thomson Reuters (Professional) UK Limited: extracts from N.W. Barber, ‘Laws and
constitutional conventions’ (2009) 125 Law Quarterly Review 294, 294; Richard Rawlings,
‘Concordats of the Constitution’ (2000) 116 Law Quarterly Review 257, 258, 279; Jeffrey Jowell,
‘Parliamentary sovereignty under the new constitutional hypothesis’ [2006] Public Law 562,
578; Eric Barendt, ‘Separation of powers and constitutional government’ [1995] Public Law
Source Acknowledgements | xv
599, 603–4; Elizabeth Wicks, ‘A new constitution for a new state? The 1707 Union of England
and Scotland’ (2001) 117 Law Quarterly Review 109, 117–20; Harry Woolf, Jeffrey Jowell and
Andrew Le Sueur, de Smith’s Judicial Review (2007, London: Sweet & Maxwell), paras 5-044–
5-045; Rodney Brazier, ‘ “Monarchy and the Personal Prerogatives”: a personal response to
Professor Blackburn’ [2005] Public Law 45, 45–6; Mark Elliott and Amanda Perreau-Saussine,
‘Pyrrhic Public Law: Bancoult and the Sources, status and content of common law limitations
on Prerogative Power’ [2009] Public Law 697–722, 705–6; Robert Hazell, ‘Time for a new
convention: parliamentary scrutiny of constitutional bills 1997–2005’ [2006] Public Law 247,
246; D. Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006]
Public Law 219, 219–20, 226–7; David Feldman, ‘Parliamentary Scrutiny of Legislation and
Human Rights’ [2002] Public Law 323, 324–7; Alison L. Young, ‘Hunting sovereignty: Jackson
v Her Majesty’s Attorney-General’ [2006] Public Law 187, 194–5; Jeffrey Jowell, ‘Parliamentary
sovereignty under the new constitutional hypothesis’ [2006] Public Law 562, 578; Genevra
Richardson and Hazel Genn, ‘Tribunals in Transition: resolution or adjudication?’ [2007]
Public Law 116, 128–32 (footnote numbering has been changed and some footnotes in the
original are omitted); Ann Abraham, ‘The ombudsman and “paths to justice”: a just alterna-
tive or just an alternative?’[2008] Public Law 1, 2–3; Nick O’Brien, ‘Ombudsmen and social
rights adjudication’ [2009] Public Law 466, 468–9; Richard Kirkham, Brian Thompson and
Trevor Buck, ‘When Putting Things Right Goes Wrong: Enforcing the Recommendations of
the Ombudsman’ [2008] Public Law 510, 521–30; Lord Steyn, ‘Deference; a tangled story’
[2005] Public Law 346–59; Robert Thomas, ‘Administrative Justice, Better Decisions, and
Organisational Learning’ [2015] Public Law, 111, at 112-114 and 131-133. Reproduced with
permission of the Licensor through PLSclear.
University of London Press: extracts from Sir Ivor Jennings, The Law and the Constitution,
5th edn (1959, London: University of London Press), pp. 134– 5, 137– 8, 148, 152–4,
310–11, 314.
John Wiley & Sons: extracts from Gavin Little, ‘Scotland and parliamentary sovereignty’
(2004) 24 Legal Studies 540, 543–4.
Every effort has been made to trace and contact copyright holders prior to publication. If noti-
fied, the publisher will undertake to rectify any errors or omissions at the earliest opportunity.
GUIDE TO THE ONLINE RESOURCES
www.oup.com/uk/lesueur4e/
Oxford University Press’s online resources are developed to provide lecturers and students with
ready-to-use teaching and learning resources. They are free of charge, designed specifically to
complement the textbook, and offer additional materials which are suited to electronic delivery.
Updates
The online resources provide you with up-to-date information and details of the latest legisla-
tion following publication to ensure that you remain informed of the newest developments in
a constantly changing and dynamic area of law.
Multiple-choice questions
This selection of questions enables you to test your understanding as you work through each
chapter of the book. Offering versatile testing tailored specifically to this book, each answer is
accompanied by feedback to explain why your answer is correct or incorrect and where in this
book you can find further information.
OUTLINE TABLE OF CONTENTS
1 INTRODUCTION TO CONSTITUTIONAL
FUNDAMENTALS 3
1 What This Book is About 3
2 What is a Constitution? 4
3 British Exceptionalism 12
8 INTRODUCTION TO EXECUTIVE
FUNCTIONS 241
1 Facts and Themes 241
2 Governments at a Glance 244
12 INTRODUCTION TO LEGISLATIVE
FUNCTIONS 357
1 Introduction 357
2 Definitions 358
3 The Importance of Legislation 361
4 Skills 365
5 Legislatures 367
6 The Executive and Legislation 375
7 The Judiciary and Legislation 376
8 Where to Go From Here 377
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botanical work on the grasses; he was employed by Dr. Duncan in
arranging the plates of a botanical work belonging to the university
library; and, we have been told, that at one time he entertained
serious thoughts of becoming a lecturer on British botany. We know
that he was enthusiastically attached to this study, and oftener than
once we have accompanied him when he went on botanical
excursions. He not only attended the natural history class in the
university of Edinburgh, so ably taught by Professor Jameson, but he
became likewise a member of the Wernerian Natural History Society,
which, under the auspices of the same professor, has long held a
conspicuous place among the scientific associations of the country.
It is a singular circumstance in the feelings and character of Dr.
Oudney, that although the sedateness of his disposition and the
benevolence of his heart made him enjoy the quietness and the
comfort of home, and the interchange of the kind affections with his
relations and friends around the domestic hearth, with a peculiar
degree of satisfaction; although his steadiness and attention, joined
to his professional experience and skill, were fast procuring for him
an extensive medical practice; and although he could have formed a
matrimonial alliance both agreeable to his feelings and
advantageous to his prosperous establishment in life: yet, such was
his love of distinction as a scientific traveller, and so strong was his
desire of exploring distant, and of discovering unknown regions, that
he was willing, for a while, to forego every other consideration for the
sake of gratifying this master-passion of his mind. The hope of
having it in his power of visiting foreign countries, and of extending
the boundaries of physical knowledge, stimulated him to persevere
in those scientific pursuits which were especially fitted to qualify him
for accomplishing this purpose on which he had so steadfastly set
his heart; and caused him to make his sentiments on this subject
known to such individuals as he supposed had influence sufficient to
promote the object which he had in view. For this end, he would
have had no objections to have resumed his public services as a
naval surgeon, trusting that he might be sent to some station
favourable for prosecuting the inquiries which he was so anxious to
make. But the interior of Africa was the field of investigation on which
his own wishes were bent. The considerations, that the climate of
that country had been fatal to so many former travellers, and that its
inhabitants had showed themselves averse to have it traversed by
strangers, were unable to exert an influence over his mind
sufficiently strong to deter him from engaging in the enterprise if he
should have it in his power to make the attempt. He felt that his
constitution was vigorous; he had already acquired some knowledge
of tropical climates; and he trusted that he possessed prudence and
precaution sufficient to enable him to surmount every opposing
obstacle, and to conduct any expedition on which he might be sent
to a favourable and satisfactory issue. And sooner, we believe, than
he expected, he had an opportunity of putting his sanguine
anticipations to the test of experiment.
When it was known that government had resolved to send a new
expedition to explore the central parts of Africa, and especially to
trace the course, and endeavour to ascertain the termination of the
Niger, Dr. Oudney, through the influence of Professor Jameson,
along with Major Denham, and Captain Clapperton, was, greatly to
his own satisfaction, appointed on this interesting mission. He had
no fears of losing his health by travelling, was very sanguine that his
labours would be crowned with success, and, being amply provided
with instructions, by his friend Professor Jameson, how to prosecute
his inquiries, and to collect and preserve specimens of the natural
productions of the countries he was about to visit, he took farewell of
his friends in Scotland and went to London in the summer of the year
1821. And we are peculiarly happy, that by means of a regular series
of letters to his eldest sister, and to some other of his
correspondents, we are enabled not only to make him give a
luminous account of the rest of his career, but also to impart much
new and valuable information respecting the countries in which he
travelled. The first of the Doctor’s letters from which we shall take an
extract, is one which he sent to his friend Mr. James Kay, surgeon of
the Royal Navy, from London, on the eve of his setting out on his
expedition.
“Here I am actively engaged in business of one kind or another.
But I expect to finish and arrange every thing to day; for it is probable
Clapperton and I shall depart to-morrow morning, unless the mail be
detained a few days, a thing which I understand often happens. I
have found every thing very agreeable here. Those with whom I
have had to deal have been exceedingly polite, and in most respects
have forwarded my views as far as possible. Our worthy friend
Clapperton gets on amazingly well. I am in high spirits respecting my
mission; from all that I have been able to learn, very little danger, and
scarcely any impediments, are to be apprehended. We have got
excellent fowling-pieces and pistols, and a most valuable assortment
of philosophical instruments. The former, I hope, except for the
purposes of natural history, will scarcely be required—an agreement
exists between the British government and the pasha of Tripoli
respecting the conveying of travellers safe to Bornou, therefore, so
far as he is concerned, all is safe.”
The next letter in the series from which we shall quote is
addressed to his eldest sister, and is dated “Malta, October 17,
1821.”
“This is certainly a curious island, it was originally a barren rock,
but the labour of man has done wonders. Soil has been transported
from different places, on which many gardens have been formed.
The town is a strong fortress, celebrated in history for the noble
stand which it made against the whole power of the infidels. You can
have no idea of the houses from any thing you see in Edinburgh.
The roofs are all flat, and well fitted for a warm climate. The entrance
is capacious and gloomy, not unlike that of ancient baronial castles.
The rooms are lofty, the floors of which are paved with stone; and
the walls are generally decorated with large paintings. There is one
very fine church, St. John’s, the floors of which are all of the finest
marble, with some fine specimens of mosaic work, and the walls are
adorned with beautiful paintings and well executed sculpture. There
are, however, many marks of decay on the exterior of the building,
which, by the bye, does not present that grand appearance that one
would expect.”
The two letters which follow in the series are both dated “Tripoli,
October 24, 1821,” and relate principally to what occurred on the
passage from England to Africa.
“We are here at last, and a pretty place it is; so built, however, that
three can scarcely walk a-breast in the streets: every few yards a
house is in ruins, for there exists among the Moors a strange dislike
to repair any thing, particularly houses. Whether that arises from
indolence or superstitious notions, I cannot tell, but the fact is evident
to the most superficial observer. Our passage to Malta was
exceedingly agreeable—long certainly, but pleasant company
prevented tedium. I visited the galleries at Gibraltar, and was highly
pleased with the grandeur of the design. Your favourite fort, Malta,
excited very little interest in my mind, not that the place is deficient in
interest, but we were fretful from experiencing great harassment
from individuals who ought to have forwarded our views, so that a
disinclination to enjoy any thing was induced. On our arrival here, we
found matters far beyond our expectation; far to the south of Bornou
is open to us, and almost entirely subject to the pasha of Tripoli. All
our route is clear and free from danger. The pasha’s word is a law
not to be disobeyed, and he has pledged himself to protect us fifty-
seven days’ journey beyond Bornou. On our landing, that favourable
intelligence made us leap for joy. The Mahometans here are a most
liberal sort of men, and tolerate people of every religious persuasion
—a circumstance almost unknown in any other Mahometan country.
The police is admirable, so that a stranger may traverse every part of
the city without the least apprehension. As to the moral condition of
the people, I can say but little, as I have had very imperfect
opportunities of observing them.
“I must now describe to you my introduction to the pasha. The
court-yard was filled with people of very different complexions,
mostly the servants, guards, and relations of the pasha. The group
had a most motely appearance; many were superbly dressed, others
were in rags and filthy in the extreme. The room in which his
Highness was seated was decent, with nothing gaudy. He sat at the
farther end of the room, and his two sons sat on chairs at the other
end of it; while many of his guards and ministers stood in different
positions round the chamber. He was grave, and his muscles were
as motionless as those of a statue, so much so that I was several
times inclined to laugh. The gravity, however, ceased after a little
conversation, and then a scene was displayed far from being
disagreeable. He conversed with apparent pleasure on the success
of his arms, and on the great distance to which he could convey the
mission in perfect safety. That, you may be assured, was agreeable
intelligence to us, and inspired us with hopes of almost certain
success. I had to prescribe for him, for no sooner had I entered the
room than my advice was requested. The two sons present were
tolerably good-looking men; the elder of them was corpulent and
very like his father; and the younger of them tall, slender, and, upon
the whole, a good-looking young man. The pasha’s dress was clean,
plain and neat. I hope we shall be able to set off early in December
—a fine season for travelling—and expect to eat our new yearday’s
dinner in Mourzuk. We travel in European dresses, and in this
respect we shall be different from most of the former travellers in this
part of Africa. The pasha approves of our resolution, and the consul
is highly delighted with it. Indeed, on reflecting seriously on the
matter, I think the plan is by far the most judicious. Hypocrisy almost
always engenders suspicions; and the people well know that our
pretensions to be of their religion are only feigned.”
With regard to the last-mentioned statement of the above letter,
we know that Dr. Oudney was resolute in his determination not to
travel under an assumed name and character. He was too sincere
and conscientious a Christian ever to venture to lay aside the
avowed practice of its duties for the attainment of any purpose
whatsoever. He was strongly urged by some of his scientific friends
to endeavour to control his scruples on this subject, and, like his
predecessors in the same scheme of exploring Africa, to travel as an
Arab and a disciple of Mahomet, but without success; and he
declared that he would far rather abandon the enterprise to which he
had been appointed, than even in appearance to renounce his faith.
It so happened that the humour of the pasha of Tripoli, and the
circumstances of his dominions at the time they were traversed by
the mission to which Dr. Oudney was attached, favoured his design.
It is quite clear neither Dr. Oudney nor his companions could have
travelled in Africa as Mahometans, from their comparative ignorance
of the languages of the east, and of the rites of the religion of the
Arabian prophet. None of them had the preparatory training previous
to the commencement of their journey as was enjoyed by Burckhardt
and others; so that they must have been quickly detected as
impostors had they assumed the profession of Islamism; and it is
very true, as the Doctor remarks, that an exposed hypocrite is an
odious character in any country. It is quite obvious, however, that the
more familiar travellers are with the language of the people among
whom they travel, and the better acquainted they are with their
manners and customs, and their religious tenets and ceremonies,
they will thereby best secure their confidence, and be the better
enabled to adapt themselves to all circumstances, persons, and
seasons, which they may meet with, as well as greatly increase their
means of obtaining the knowledge of which they are in search. But
whether Dr. Oudney’s declared resolution to travel as an Englishman
and a Christian be approved of or not; or whether his conduct in this
respect may or may not be imitated by others, every one must
admire the honest sincerity of heart, and the unbending integrity of
principle which his resolution manifested. There is another letter to
his sister of the same date as the preceding, which likewise contains
some facts worthy of being published.
“Tripoli, October 24, 1821.
“It is with the sincerest joy I communicate to you my safe arrival
here. Every thing smiles and promises complete success to our
enterprise. Accounts arrived here a few days ago, that the pasha’s
army had penetrated to fifty-seven days’ journey beyond Bornou—a
circumstance exceedingly favourable to us, as no danger need be
apprehended the greater part of the way we design to take. This
town has a very indifferent appearance. I expected to see numerous
domes and gilded minarets, but such is not the case; a few ill-
shaped plain minarets are the only objects that relieve the eye. The
houses are clumsily built, with windows looking into a square court.
The roofs are all flat, and on them the Moors enjoy themselves in the
evenings, smoking their pipes. The streets are narrow, and, from the
deficiency of windows, have a very sombre effect. The inhabitants
consist of Moors, Jews, Christians, and Negroes; and although most
of them are poor and filthy, and live in miserable dwellings, yet they
may be regarded as happy; for there is here more toleration than in
any other Mahometan country.
“I have been presented to the pasha. He was sitting, with great
dignity, on his couch, in the manner of eastern princes, and with a
slight nod returned our salutations: he appeared to be about the
middle size—very corpulent—and apparently about forty years of
age. He was grave—a necessary part of the ceremony, I suppose—
for it vanished considerably when he began to converse. He
promised us every protection through all his dominions, which
extend far to the south, and said he should astonish Britain by the
distance he could conduct us all in safety into the interior of the
country. The castle he inhabits is far from being neat and clean, and
many of his attendants present a very shabby appearance. The
neighbouring country has nothing prepossessing; a few date and
other trees line the outskirts of the town; but for many miles beyond
this there is nothing but sand. In a few days we intend to make an
excursion with a party into the mountains, and to the remains of an
ancient Roman city. In my next, I shall give you some particulars of
the excursion.”
None of the letters in our possession contain any thing relative to
the mountains or the antiquities in the neighbourhood of Tripoli; but
we remember to have heard extracts of a letter from Dr. Oudney to
one of his friends in Edinburgh, dated Tripoli, 30th of October 1821,
in the Wernerian Natural History Society; and these extracts formed
the result of the excursion which he tells his sister he intended to
make to the mountains of Tripoli and to the ruins of a Roman city. His
next letter to his sister is dated Tripoli, December 10th, 1821, in
which he says—
“I am busy making preparations for my journey, which I expect to
commence about a fortnight hence. Every thing goes on well, and
the prospects of success are of the most promising kind. The climate
here is delightful, neither too hot nor too cold, but a just medium. A
considerable degree of cold, however, may be expected during the
time of part of our journey; but it is easier to remedy cold than heat.
My health is excellent, and I hope it will continue so.”
TO THE SAME.
TO THE SAME.
TO THE SAME.
“Mourzuk, May 12, 1822.
“Here I am, thank God, well and happy. The climate is hot, but I
have not experienced it very disagreeable. My health, indeed, has
been better since I left home than it was for a long time before.
Clapperton and I have been visiting a number of different places,
and intend spending our time in that way for the next two months,
when I hope we shall be able to proceed to Bornou. The soil is
sandy, and we have no other tree but that of the date. There is,
however, abundance of this sort, and its fruit forms the principal
sustenance of many thousands of the people. Without this tree, the
whole country, from this place to Bornou, would be a dreary waste.
You perhaps know that no rain falls here; on that account corn fields
and gardens are not to be expected. At the expense, however, of
much labour and care, as the ground requires to be continually
watered by streams from the wells, we have many of both. We have
always plenty of good water, at all times, a circumstance which, in a
country destitute of rain, you will be apt to think is rather singular and
curious, but it is one which you cannot be expected to understand
were I to enter into any explanation of it. All the places in Fezzan
exhibit a sameness of aspect. The towns are formed of mud houses,
generally of one flat; they have, for the most part, an old ruined
castle in the centre; and all of them are surrounded by walls. On the
outside of the towns, and in some places within the walls, a few
abodes are constructed of the leaves of the palm. The people are
really a fine race, and have uniformly treated us with the greatest
kindness. Wherever I go, and every day that I remain in this town, I
have numerous applications for medicines. Some of the applicants
have very curious complaints, which, were I to state them to you,
would make you laugh heartily. Many of them, however, are real, and
for which I can in general prescribe something for their relief. We are
much better here than we could have been in Tripoli. We meet every
day with persons from the country we are going to visit, and from
those through which we have to pass. We thus make friends that
may be of considerable service to us in our future investigations. We
are all living comfortably, in a tolerably good house in the castle; and
often in the mornings, about sunrise, take a ride round the town. It is
not safe to go out much in the sun; we, therefore, in this respect,
follow the example of the natives, and stop within during the heat of
the day.”
TO PROFESSOR JAMESON.
TO HIS SISTER.
TO THE SAME.
TO THE SAME.
TO THE SAME.