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vi

Outline contents

1 Introduction 1
Catherine Barnard, Trinity College, University of Cambridge and Steve Peers,
University of Essex

2 Development of the EU 9
Paul Craig, St John’s College, University of Oxford

3 The EU’s political institutions 37

Steve Peers, University of Essex

4 Constitutionalism and the European Union 71

Robert Schütze, Durham University

5 Legislating in the European Union 97

Kieran St C Bradley, European Union Civil Service Tribunal

6 The effects of EU law in the national legal systems 143

Michal Bobek, Advocate General at the Court of Justice of the European Union

7 EU law: is it international law? 177

Bruno de Witte, Maastricht University

8 General principles of EU law and EU administrative law 198

Herwig C H Hofmann, University of Luxembourg

9 Fundamental rights in the European Union 227

Eleanor Spaventa, Durham University

10 Judicial protection before the Court of Justice of the European Union 262
Albertina Albors-​Llorens, St John’s College, University of Cambridge
11 The internal market and the philosophies of market integration 310
Jukka Snell, University of Turku and Swansea University

12 Free movement of goods 339

Peter Oliver, Visiting Professor, Université Libre de Bruxelles and Martín
Martínez Navarro, European Ombudsman

13 Free movement of natural persons and citizenship of the Union 369

Catherine Barnard, Trinity College, University of Cambridge

14 Free movement of legal persons and the provision of services 409

Catherine Barnard, Trinity College, University of Cambridge with Jukka Snell,
University of Turku and Swansea University

15 Free movement of capital 447

Leo Flynn, Legal Service of the European Commission
viii Outline contents

16 Exceptions to the free movement rules 477

Niamh Nic Shuibhne, University of Edinburgh

17 Competition law 509

Alison Jones, King’s College London and Christopher Townley,
King’s College London

18 Public services and EU law 543

Leigh Hancher, Tilburg University and Wolf Sauter, Tilburg University

19 Economic and Monetary Union 573

Alicia Hinarejos, Downing College, University of Cambridge

20 Labour and equality law 598

Mia Rönnmar, Lund University

21 EU health law 628

Tamara K Hervey, University of Sheffield

22 Environmental law 657

Elisa Morgera, University of Edinburgh

23 European consumer law 686

Geraint Howells, University of Manchester

24 EU external action 710

Geert De Baere, University of Leuven

25 EU criminal law 761

John R Spencer, University of Cambridge

26 Immigration and asylum 791

Steve Peers, University of Essex

27 Brexit: the Legal Dimension 815

Steve Peers, University of Essex and Darren Harvey, University of Cambridge

Index 837
Map of the European Union 860
ix

Detailed contents

Notes on contributors xxv

Table of abbreviations xxvii
Table of legislation xxx
Table of cases lviii

1 Introduction 1
1 Introduction 1
2 The development of EU law 2
3 Themes 4
3.1 Input legitimacy 5
3.2 Output legitimacy 6
4 Conclusion 8

2 Development of the EU 9
1 Introduction 9
2 Nationalism and the origins of the EU 12
3 From ECSC to EEC 13
3.1 European Coal and Steel Community: ECSC 13
3.2 European Defence Community and European Political Community:
EDC and EPC 13
3.3 European Economic Community: EEC 14
4 From EEC to the Single European Act 16
4.1 Tensions within the Community 16
4.2 Single European Act: SEA 18
5 From the SEA to the Nice Treaty 20
5.1 Maastricht Treaty: the Treaty on European Union 20
5.2 Treaty of Amsterdam 22
5.3 Treaty of Nice 24
5.4 Charter of Rights 25
6 From Nice to Lisbon 25
6.1 The Laeken Declaration 25
6.2 Constitutional Treaty 26
6.3 Lisbon Treaty 27
7 Recent challenges for the EU 30
7.1 The financial crisis 30
7.2 Brexit 31
7.3 Migration crisis 31
8 Theories of integration 32
8.1 Neofunctionalism 32
8.2 Liberal intergovernmentalism 33
x Detailed contents

8.3 Multi-​level governance 34

8.4 Rational choice institutionalism 34
8.5 Constructivism 35
9 Conclusion 35
Further reading 36

3 The EU’s political institutions 37

1 Introduction 37
2 The concept of representative democracy 38
2.1 Representative democracy and the EU 39
3 Commission 41
3.1 Introduction 41
3.2 Composition 41
3.3 Powers 46
3.4 Functioning 48
4 European Parliament 48
4.1 Introduction 48
4.2 Composition 49
4.3 Powers 51
4.4 Functioning 54
5 Council 55
5.1 Introduction 55
5.2 Composition 55
5.3 Powers 56
5.4 Functioning 57
6 European Council 63
6.1 Introduction 63
6.2 Composition 64
6.3 Powers 65
6.4 Functioning 68
7 Transparency of the EU’s political institutions 69
8 Conclusion 69
Further reading 70
Chapter acknowledgements 70

4 Constitutionalism and the European Union 71

1 Introduction: constitutionalism(s) 71
2 Formal constitutionalism: contested supremacy 72
2.1 Legal supremacy: two perspectives 74
2.2 Contested hierarchies: federalism and constitutional pluralism 76
3 Democratic constitutionalism I: popular sovereignty 78
3.1 Unitary constitutionalism: ‘We, the People’ 78
3.2 Federal constitutionalism: ‘We, the Peoples’ 79
4 Democratic constitutionalism II: popular representation 81
4.1 Democratic legitimacy and the Union legislature 81
4.2 Democratic legitimacy and the Union executive 84
 Detailed contents xi

5 Liberal constitutionalism I: separation of powers 86

5.1 The ‘classic’ separation of powers principle(s) 86
5.2 Separating ‘powers’ in the EU 88
6 Liberal constitutionalism II: fundamental rights 91
6.1 Fundamental rights as ‘general principles’ 92
6.2 The EU Charter of Fundamental Rights 94
7 Conclusion 94
Further reading 95

5 Legislating in the European Union 97

1 Introduction 97
2 Forms of legal act (including ‘soft law’) 99
2.1 Regulations 99
2.2 Directives 100
2.3 ‘Rule-​making decisions’ 101
2.4 International agreements 101
2.5 Interinstitutional agreements 101
2.6 Recommendations, opinions, and other non-​binding acts 102
3 Hierarchy of norms 103
4 Competences and conferral 105
4.1 ‘Competence’ as ability and ‘competence’ as power 105
4.2 Conferral 105
4.3 Grants of legislative power (‘legal bases’) 106
4.4 Classification of competences 107
5 Subsidiarity 111
5.1 The subsidiarity test 112
5.2 Protocol No 2: the ‘early warning mechanism’ 113
5.3 Scope of the early warning mechanism 114
5.4 Judicial review of compliance with the subsidiarity test 116
6 Proportionality 117
7 Decision-​making 119
7.1 Legislative and assimilated procedures 120
7.2 Special legislative procedures 123
7.3 Innominate non-​legislative procedures 124
7.4 Consultation and assimilated requirements 125
8 Derived normative measures: delegated and implementing acts 125
8.1 Delegated acts 126
8.2 Implementing acts 128
8.3 Borderline between delegated and implementing acts 132
9 Enhanced cooperation 135
10 Treaty revision 136
10.1 Simplified revision procedures 137
10.2 Ordinary revision procedures 138
10.3 Accession and withdrawal 138
11 The ‘democratic deficit’ 139
11.1 Case law references 139
xii Detailed contents

11.2 Reform of decision-​making procedures and principles 139

11.3 Treaty provisions on democratic principles 140
12 Conclusion 141
Further reading 142
Chapter acknowledgements 142

6 The effects of EU law in the national legal systems 143

1 Introduction 143
2 EU law in the Member States: institutions, procedures, principles 144
3 Direct effect 146
3.1 Van Gend en Loos 146
3.2 The conditions and the real test 147
3.3 Direct effect in action 149
3.4 Differentiation I: types of legal acts 150
3.5 Differentiation II: types of legal relationship 152
3.6 No horizontal direct effect of directives: the rule and the exception 154
4 Indirect effect 156
4.1 The notion 156
4.2 The scope 157
4.3 Interpretation unbounded? 159
4.4 Introducing some limits 160
5 Primacy 161
5.1 The Court’s view 161
5.2 The national views 165
6 National procedures for enforcing EU law rights in the Member States 167
6.1 The not-​so-​autonomous national procedural autonomy 169
6.2 From equivalence/​effectiveness to the principle of effective judicial protection 169
6.3 State liability 170
7 Connecting the dots: the interplay of the different principles 171
8 Conclusion 174
Further reading 175

7 EU law: is it international law? 177

1 Introduction 177
2 EU law as a sub-​system of international law 178
2.1 The EU as an international organization? 178
2.2 The international origins of the European integration process 179
2.3 The later evolution of the European Communities and the European Union 180
3 The specific features of EU law 185
3.1 The incomparability of the EU’s legal features 186
3.2 The primacy of EU law, a federal characteristic? 187
3.3 Finding a name to describe the EU’s specificity 190
3.4 The constitutional perspective on EU law 192
4 The EU as object and subject of international law 194
5 Conclusion 196
Further reading 197
 Detailed contents xiii

8 General principles of EU law and EU administrative law 198

1 Introduction 198
2 Organizational levels and the distribution of powers in implementing
EU law 199
2.1 Conferral of powers on the Union 199
2.2 Implementation of EU law by the Member States 200
2.3 Delegation of powers within the Union 202
3 Criteria for legality 204
3.1 Proportionality 205
3.2 Rule of law: transparency, legality, legal certainty, legitimate expectations 208
3.3 Good administration 214
3.4 Information-​related rights: freedom of information and data protection 219
3.5 The right to an effective judicial remedy and additional rights of defence 220
4 Conclusion 226
Further reading 226

9 Fundamental rights in the European Union 227

1 Introduction 227
2 Historical background and development of the case law 228
2.1 The development of the case law of the Court of Justice 229
2.2 The scope of application of fundamental rights as general principles 231
3 The response of the political institutions: from the 1977 Declaration to
the Lisbon Treaty 235
3.1 Article 7 TEU and the rule of law initiative 237
4 The Charter of Fundamental Rights 238
4.1 The drafting of the Charter 239
4.2 The structure of the Charter 240
4.3 The substantive provisions of the Charter 241
4.4 The horizontal provisions 243
4.5 Protocol No 30 on the application of the Charter to Poland and the UK 250
5 The EU and the ECHR 251
5.1 Background to accession 251
5.2 EU accession to the ECHR 254
5.3 Opinion 2/13: the special nature of EU law 258
6 Conclusion 259
Further reading 260

10 Judicial protection before the Court of Justice of the European Union 262
1 Introduction 262
2 The structure and jurisdiction of the Court of Justice of the
European Union at a glance 263
3 Direct actions 267
3.1 Infringement proceedings 268
3.2 The action for annulment 272
3.3 The action for failure to act 289
3.4 The plea of illegality 290
3.5 The action for damages 291
xiv Detailed contents

4 Preliminary references 293

4.1 What constitutes a ‘court or tribunal of a Member State’? 294
4.2 Types of preliminary references: references on the interpretation
and references on the validity of EU law 295
4.3 Discretion to refer and limits to this discretion 298
4.4 The duty to refer and the exceptions to this duty 300
4.5 Effects of a preliminary ruling 301
5 Interim relief 301
6 The relationship between the Treaty remedies 302
7 Conclusion 307
Further reading 308
Chapter acknowledgements 309

11 The internal market and the philosophies of market integration 310

1 Introduction 310
2 The nature of the internal market: three models 311
2.1 Three models of market integration 312
2.2 The implications of the different models 312
3 The nature of the internal market: the historical experience 317
3.1 The common market 317
3.2 The single market 319
3.3 Economic union? 323
4 The law of the internal market: the power to harmonize 329
4.1 The power 329
4.2 The exceptions 334
5 The law of the internal market: the types of harmonization 335
6 Conclusion 337
Further reading 338

12 Free movement of goods 339

1 Introduction 339
2 The customs union 340
2.1 The concept of a customs union 340
2.2 Goods originating in a Member State and goods in free circulation 341
3 The meaning of ‘goods’ 342
4 Nationality and residence 343
5 Customs duties and charges of equivalent effect 343
5.1 Customs duties 343
5.2 Charges of equivalent effect 343
5.3 Permissible charges 344
5.4 Charges imposed at the internal boundaries of Member States 345
5.5 Remedies 346
6 Quantitative restrictions and measures of equivalent effect 346
6.1 Quantitative restriction: imports and exports 346
 Detailed contents xv

6.2 Measures of equivalent effect: imports 348

6.3 Measures of equivalent effect: exports 353
6.4 Purely national measures 355
6.5 Justification under Article 36 and the mandatory requirements 355
6.6 Remedies 359
7 Internal taxation 360
7.1 Article 110(1) TFEU 360
7.2 Article 110(2) TFEU: competing products 362
7.3 The holistic approach to Article 110 TFEU 364
7.4 Justification 364
7.5 Remedies 365
8 The boundary between the provisions on free movement of goods 365
8.1 The two Danish cars judgments 366
8.2 CEEs and discriminatory internal taxation 366
8.3 What if there are two distinct, but closely linked measures? 367
9 Conclusion 367
Further reading 368
Chapter acknowledgements 368

13 Free movement of natural persons and citizenship of the Union 369

1 Introduction 369
2 Does EU law apply at all? 372
2.1 Introduction 372
2.2 EU nationality 373
2.3 The interstate element 373
2.4 Economic activity 375
3 Which Treaty provision is engaged? 376
3.1 Free movement of workers 377
3.2 Establishment 378
3.3 Services 378
3.4 Union citizens 380
4 Does the EU measure apply to this particular person or entity? 380
5 What rights do migrants enjoy? 381
5.1 Introduction 381
5.2 The right of residence for EU migrants and their family members, and
the principle of equal treatment 382
5.3 Other rights specifically attached to EU citizens qua citizens 392
6 What rules/​practices are prohibited by the Treaty? 395
6.1 Introduction 395
6.2 The shift to market access 396
6.3 The advantage of the market access approach 399
6.4 The criticisms of the market access approach 400
6.5 The response to the criticisms 401
7 Derogations and justifications 402
7.1 Express derogations 402
7.2 Public interest justifications 405
xvi Detailed contents

8 Effect of fundamental rights and proportionality 406

9 Conclusion 407
Further reading 408

14 Free movement of legal persons and the provision of services 409

1 Introduction 409
2 The Treaty requirements 410
2.1 The relevant Treaty provisions 410
2.2 The relationship between Articles 49, 56, and 63 TFEU 416
2.3 Who/what are the subjects of Articles 49 and 56 TFEU? 418
2.4 Establishing a breach 419
2.5 Derogations and justifications 426
3 Secondary legislation in the field of freedom of establishment and
the free movement of services 432
3.1 Introduction 432
3.2 The Services Directive 2006/​123 432
3.3 Financial services 436
3.4 EU company law 439
4 Conclusion 445
Further reading 446
Chapter acknowledgements 446

15 Free movement of capital 447

1 Introduction 447
2 The legal framework and its origins 448
2.1 The evolution of the original rules on capital 448
2.2 Overview of the current provisions 450
3 Material scope of the capital rules 451
3.1 Defining capital 451
3.2 Relationship with other Treaty freedoms 452
4 Personal and geographical scope of the capital rules 456
4.1 Against whom can the capital rules be invoked? 456
4.2 When can an EU national invoke the capital rules against their own
Member State? 457
4.3 Third countries 458
5 Restrictions 459
5.1 Equal treatment and non-​discrimination 459
5.2 What constitutes a restriction? 460
6 Exceptions and justifications 462
6.1 Treaty-​based limitations and exceptions 462
6.2 Justifying restrictions 465
6.3 Procedural requirements applied to justifications and exceptions 471
6.4 The limits of restrictions 471
7 Conclusion 475
Further reading 476
Chapter acknowledgements 476
 Detailed contents xvii

16 Exceptions to the free movement rules 477

1 Introduction 477
2 The Treaty framework: derogations 478
2.1 The role of derogation and the broader legal framework 478
2.2 Derogation and EU legislation 479
2.3 Overview of the Treaty-​based derogation grounds 480
3 The justification framework: public interest requirements 482
3.1 From ‘mandatory requirements’ to ‘overriding requirements in the
public interest’ 483
3.2 Discriminatory and non-​discriminatory restrictions 485
4 Application of the derogation and justification frameworks 487
4.1 General principles 488
4.2 The jurisdiction of the Court of Justice 493
4.3 The burden and standard of proof 494
4.4 Fundamental rights as limits to free movement 494
5 Proportionality 498
5.1 Overview of the proportionality test 498
5.2 Appropriateness 499
5.3 Necessity 499
5.4 Proportionality as a tool for mediating public interest 500
6 Derogating from the free movement of persons 502
6.1 Deportation and Directive 2004/​38: general principles 503
6.2 Deportation on economic grounds 506
7 Conclusion 507
Further reading 508

17 Competition law 509

1 Introduction 509
2 Overview of EU competition law 509
2.1 EU competition law 509
2.2 Objectives of EU competition law 510
3 Enforcement and consequences of infringement 512
3.1 Enforcement by the Commission and NCAs 513
3.2 Private enforcement through civil litigation in the national courts 514
4 Who do Articles 101 and 102 TFEU apply to and when do they apply? 514
4.1 Undertakings 514
4.2 May (appreciably) affect trade between Member States 517
4.3 Exclusions 518
5 Identifying anti-​competitive agreements and conduct 519
5.1 The use of economic analysis 519
5.2 Form and effects: type 1 and type 2 errors 520
6 Article 101 TFEU 521
6.1 Introduction 521
6.2 Agreements, concerted practices, and decisions 521
6.3 Identifying which agreements infringe Article 101 TFEU 523
7 Article 102 TFEU 532
7.1 Introduction 532
xviii Detailed contents

7.2 Dominance 532

7.3 Identifying conduct which infringes Article 102 535
8 Conclusion 542
Further reading 542

18 Public services and EU law 543

1 Introduction 543
2 Public services and SGEIs 544
2.1 What are public services? 544
2.2 Recognition of SGEIs by the Treaty 546
2.3 Conclusion 548
3 Commercial monopolies 549
4 State aid 550
4.1 Introduction 550
4.2 The State aid regime 551
5 Case studies 557
5.1 The utilities sectors 558
5.2 Social services 564
5.3 Health care 565
5.4 Lessons from the case studies 570
6 Conclusion 570
Further reading 571

19 Economic and Monetary Union 573

1 Introduction 573
2 History and design of EMU 574
3 The Stability and Growth Pact and measures of coordination
before the crisis 576
4 The euro area crisis and its relationship to EMU 577
5 Addressing the crisis 580
5.1 Stabilization: the ECB and bailouts 581
5.2 Budgetary and economic coordination measures 586
5.3 Financial regulation and banking union 590
6 The future of EMU 592
6.1 Democratic legitimacy 593
6.2 ‘Reserved domains’ and the disappearing state 594
7 Conclusion 596
Further reading 597

20 Labour and equality law 598

1 Introduction 598
2 The legal framework and evolution of EU labour and equality law 599
2.1 The evolution of EU labour and equality law and Treaty developments 599
2.2 Law-​making and legal sources in EU labour and equality law 601
 Detailed contents xix

2.3 The Charter of Fundamental Rights of the European Union and the
constitutionalization of EU labour and equality law 603
3 Labour law 604
3.1 Restructuring of enterprises and information, consultation, and worker
participation 604
3.2 Freedom to provide services, freedom of establishment, and national
collective labour law 608
3.3 Flexible work and working conditions 612
3.4 EU and national labour law in times of economic crisis 615
4 Equality law 617
4.1 Introduction to equality law 617
4.2 Gender equality 619
4.3 Comprehensive equality and protection against discrimination on
other grounds 623
5 Conclusion 626
Further reading 627

21 EU health law 628

1 Introduction 628
2 Patient mobility 629
2.1 Migrant workers: Coordination of health care systems 629
2.2 Freedom to receive health care services 630
2.3 The ‘Patients’ Rights Directive’ 635
3 Health care professionals 637
3.1 The ‘sectoral’ approach 637
3.2 The ‘general’ approach 638
3.3 Concerns about EU law on health professionals 639
3.4 Implications of Brexit 641
4 Health care institutions 641
4.1 Freedom of establishment/​freedom to provide services 642
4.2 Competition law 643
4.3 Assessment 645
5 Medical devices and pharmaceuticals 646
5.1 Medical devices 647
5.2 Pharmaceuticals 647
6 Blood, organs, and human tissue 649
6.1 Patient safety 649
6.2 Intellectual property 650
7 Public health 651
8 Global contexts 653
8.1 Health through the common commercial policy 654
8.2 Health through development cooperation 654
9 Conclusion 656
Further reading 656
xx Detailed contents

22 Environmental law 657

1 Introduction 657
2 The legal framework 658
2.1 Evolution of EU environmental law 658
2.2 Objectives of EU environmental policy 664
2.3 Principles of EU environmental policy 665
2.4 Environmental integration 668
2.5 Sustainable development 669
3 Nature protection 670
3.1 The Wild Birds Directive 670
3.2 The Habitats Directive 671
4 Water 674
4.1 The Water Framework Directive 674
4.2 The Common Implementation Strategy 676
5 Climate change 679
5.1 An overview of the 2009 Climate and Energy Package 679
5.2 Components of the package 680
5.3 International reach of the package 682
6 Conclusion 684
Further reading 685

23 European consumer law 686

1 Introduction 686
2 The negative impact of EU law on national consumer protection rules 687
3 Consumer protection and the internal market 688
3.1 Legal basis 688
3.2 EU consumer law as a driver for greater cross-​border trade 689
3.3 Legislative approach 691
4 Information policy 691
4.1 Information obligations 692
4.2 Information and behavioural economics 693
5 Right of withdrawal 693
5.1 Justification 693
5.2 Harmonization 694
5.3 Effective consumer protection? 694
6 Rules establishing consumer expectations 695
7 Product safety 696
7.1 Public law control and consumer protection 696
7.2 General Product Safety Directive 696
8 Product liability 697
9 Unfair terms 698
10 Sale of goods 699
11 General comments on substantive rights 700
11.1 Goods and services 700
11.2 General standards 700
11.3 Channelling of liability 701
 Detailed contents xxi

11.4 Minimum content 702

11.5 Extent of harmonization 704
11.6 Cross-​border-​only rules 705
12 Enforcement and redress 705
12.1 Methods of enforcement 706
12.2 Access to justice 706
12.3 Alternative dispute resolution 707
12.4 Collective redress 707
13 Conclusion 708
Further reading 709
Chapter acknowledgements 709

24 EU external action 710

1 Introduction 710
2 The foundations of EU external action 711
2.1 In search of consistency and effectiveness 711
2.2 The principle of conferral 712
2.3 The distinction between ordinary EU external action and the CFSP 713
2.4 The CFSP 714
3 The existence of EU external competences 717
3.1 The fundamentals 717
3.2 Implied competences 718
4 The nature of EU external competences 720
4.1 The fundamentals 720
4.2 Exclusive external competence on the basis of Article 3(2) TFEU 721
4.3 Consequences of exclusive competence 724
4.4 Non-​exclusive competences 726
5 Decision-​making in EU external action 729
5.1 The ordinary Union method 729
5.2 The CFSP 732
5.3 The High Representative and the European External Action Service 737
6 External representation and international agreements 738
6.1 External representation 738
6.2 International agreements 739
7 Managing the vertical division of EU external competences 745
7.1 Mixed agreements 746
7.2 Sincere cooperation 748
8 Managing the horizontal division of EU external competences 754
8.1 Pre-​Lisbon 754
8.2 Post-​Lisbon 755
9 Conclusion 758
10 Postscript 759
Further reading 760

25 EU criminal law 761

1 Introduction 761
xxii Detailed contents

2 What is EU criminal law? 761

2.1 Why does EU criminal law exist? 762
2.2 Tensions 763
2.3 Evolution and sources 765
3 Organs 771
3.1 OLAF 771
3.2 Europol 772
3.3 Eurojust 773
3.4 The European Public Prosecutor 774
4 Cooperation between law enforcement agencies 776
5 Mutual legal assistance and mutual recognition 778
5.1 What is mutual recognition? 778
5.2 The EAW: its origins, and its main features 779
5.3 Criticisms of the EAW 780
5.4 Mutual recognition: the UK’s current position 782
6 Harmonization of substantive criminal law 783
7 Harmonization of criminal procedure 785
8 Conclusion 790
Further reading 790

26 Immigration and asylum 791

1 Introduction 791
2 The legal framework 791
2.1 Prior to the Treaty of Amsterdam 792
2.2 The Treaty of Amsterdam 793
2.3 The Treaty of Lisbon 794
3 Visas and border control 795
3.1 Overview and legal framework 795
3.2 Border controls 795
3.3 Visa policy 797
4 Irregular migration 798
4.1 Overview and legal framework 798
4.2 Adopted legislation 799
5 Legal migration 803
5.1 Overview and legal framework 803
5.2 Legislation 804
5.3 Case law 804
6 Asylum 807
6.1 Overview and legal framework 807
6.2 Qualification for international protection 809
6.3 Reception conditions for asylum seekers 811
6.4 Asylum procedures 811
6.5 Responsibility for applications 812
7 Conclusion 813
Further reading 814
 Detailed contents xxiii

27 Brexit: the Legal Dimension 815

1 Introduction 815
2 Withdrawing from the EU pre-​Lisbon 815
2.1 Public international law 815
2.2 The European Union 817
3 Article 50 TEU: the decision to withdraw 819
3.1 Must Article 50 be used to withdraw? 819
3.2 ‘Constitutional requirements’ 820
3.3 Notifying the decision 823
3.4 Can notification be withdrawn? 825
4 Article 50: withdrawal negotiations 825
4.1 The Article 50 process 825
4.2 Scope of Article 50 830
4.3 Substantive issues 832
5 After Brexit 835
6 Conclusion 836
Further reading 836

Index 837
Map of the European Union 860
vxi
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perpetual health and natural playfulness.[239] The most
valuable lives are daily destroyed by diseases that it is
dangerous to palliate, and impossible to cure, by medicine.
How much longer will man continue to pimp for the gluttony
of Death—his most insidious, implacable, and eternal foe?”

Some time after the melancholy death of his first

wife, Shelley married Mary Wolstoncroft, the
daughter of William Godwin, author of Political
Justice—perhaps the most revolutionary of all pleas
for a change in the constitution of society that has
ever proceeded from a prosaic tradesman, such as,
in the ordinary intercourse of life and interchange of
ideas, his biography and correspondence (lately
published) prove him to have been. Her mother was
the celebrated and earliest advocate of the rights of
women. Previously, the lovers had travelled through
France and part of Germany, and an account of their
six weeks’ tour was afterwards printed by Mrs.
Shelley.
In 1815 appeared his Alastor; or the Spirit of
Solitude. In 1817 he again left England for Geneva.
While in Switzerland he made the acquaintance of
Byron, which was renewed during his stay in Italy. In
the same year he returned to this country and, after
a short sojourn with Leigh Hunt, he settled at Great
Marlow, one of the most picturesque parts of the
Thames. There, in spite of his own ill-health, he
showed the active benevolence of his character, not
only in the easier form of alms-giving but also in
frequent visits to the sick and destitute, at the risk of
aggravating symptoms of consumption now
alarmingly apparent. There, too, he composed the
Revolt of Islam, or, as it was originally more fitly
entitled, Laon and Cythna. In this poem, by the
mouth of Laone, he again expresses his
humanitarian convictions and sympathies. She calls
upon the enfranchised nations:—
“‘My brethren, we are free! The fruits are glowing
Beneath the stars, and the night-winds are flowing
O’er the ripe corn; the Birds and Beasts are dreaming—
Never again may blood of bird or beast
Stain with his venomous stream a human feast,
To the pure skies in accusation steaming.
Avenging poisons shall have ceased
To feed disease, and fear, and madness.
The dwellers of the earth and air
Shall throng around our steps in gladness,
Seeking their food or refuge there.
Our toil from Thought all glorious forms shall cul.
To make this earth, our home, more beautiful,
And Science, and her sister Poesy,
Shall clothe in light the fields and cities of the Free.
* * * * * * * *
“Their feast was such as Earth, the general Mother,
Pours from her fairest bosom, when she smiles
In the embrace of Autumn—to each other
As when some parent fondly reconciles
Her warring children, she their wrath beguiles
With her own sustenance; they, relenting, weep—
Such was this Festival, which, from their isles,
And continents, and winds, and oceans deep,
All shapes might throng to share, that fly, or walk, or creep:

“Might share in peace and innocence, for gore,

Or poison none this festal did pollute.
But, piled on high, an overflowing store
Of pomegranates, and citrons—fairest fruit,
Melons, and dates, and figs, and many a root
Sweet and sustaining, and bright grapes, ere yet
Accursed fire their mild juice could transmute
Into a mortal bane; and brown corn set
In baskets: with pure streams their thirsting lips they wet.”[240]
 While he was yet residing in Marlow, the Princess
Charlotte, daughter of the Prince of Wales
(afterwards George IV.,) died; and, since her
character had been in strong contrast with her
father’s and with royal persons’ in general, her early
death seems to have caused, not only ceremonial
mourning, but also genuine regret amongst all in the
community having any knowledge of her exceptional
amiability. The poet seized the opportunity of so
public an event, and published An Address to the
People on the Death of the Princess Charlotte. By the
Hermit of Marlow, in which he inscribed the motto
—“We pity the plumage, but forget the dying bird.”
In this pamphlet, while paying due tribute of regret
for the death of an amiable girl, and fully
appreciating the sorrow caused by death as well
among the destitute and obscure (with whom,
indeed, the too usual absence of the care and
sympathy of friends intensifies the sorrow) as among
the rich and powerful, he invited, in studiously
moderate language, attention to the many just
reasons for national mourning in the interests of the
poor no less than of princes; and, in particular,
invited the nation to express its indignant grief for
the fate of the Lancashire mechanics who, missing
the happier fate of their brethren slaughtered at
Peterloo, were subjected to an ignominious death by
a government which had, by its neglect, encouraged
the growth of a just discontent.
In 1818 Shelley left England never to return. At
this time was composed the principal part of his
masterpiece—Prometheus Unbound, the most
finished and carefully executed of all his poems.
While in Rome (1819) he published The Cenci, which
had been suggested to him by the famous picture of
Guido, until lately supposed to be that of Beatrice
Cenci, and by the traditions, current even in the
poet’s time, of the cruel fate of his heroine.
Shakspere’s four great dramas excepted, The Cenci
must take rank as the finest tragic drama since the
days of the Greek masters. It is worked up to a
degree of pathos unsurpassed by anything of the
kind in literature. “The Fifth Act,” remarks Mrs.
Shelley, his editor and commentator, “is a
masterpiece. Every character has a voice that echoes
truth in its tones.” The Cenci was followed in quick
succession by the Witch of Atlas, Adonais (an elegy
on the death of Keats), the most exquisite “In
Memoriam”—not excepting Milton’s or Tennyson’s—
ever written; and Hellas, which was inspired by his
strong sympathy with the Greeks, who were then
engaged in the war of independence.
Of his lesser productions, the Ode to the Skylark
is of an inspiration seldom equalled in its kind. With
the “blythe spirit,” whom he apostrophises, the poet
rises in rapt ecstasy “higher still and higher.” For the
rest of his productions (the Letters from Italy and
criticisms or rather eulogies on Greek art have an
especial interest) and for the other events in his brief
remaining existence we must refer our readers to the
complete edition of his works.[241] The last work upon
which he was engaged was his Triumph of Life, a
poem in the terza rima of the Divine Comedy. It
breaks off abruptly—it is peculiarly interesting to
note—with the significant words, “Then what is Life,
I cried?”
The manner of his death is well known. While
engaged in his usual recreation of boating he was
drowned in the bay of Spezia. His body was washed
on to the shore and, according to regulations then in
force by the Italian governments of the day, in
guarding against possible infection from the plague,
it was burned where it lay, in presence of his friends
Byron and Trelawney, and the ashes were entombed
in the Protestant cemetery in Rome—a not unfitting
disposal of the remains of one the most spiritualised
of human beings.
The following just estimate of the character of his
genius and writings, by a thoughtful critic, is worth
reproduction here:—“No man was more essentially a
poet—‘glancing from earth to heaven.’ He was,
indeed, ‘of imagination all compact.’ ... In all his
poems he uniformly denounces vice and immorality
in every form; and his descriptions of love, which are
numerous, are always refined and delicate, with even
less of sensuousness than in many of our most
admired writers. It is true that he decried marriage,
but not in favour of libertinism; and the evils he
depicts, or laments, are those arising from the
indissolubility of the bond, or from the opinions of
society as to its necessity—opinions to which he
himself submitted by marrying the woman to whom
he was attached.... His reputation as a poet has
gradually widened since his death, and has not yet
reached its culminating point. He was the poet of the
future—of an ideal futurity—and hence it was that his
own age could not entirely sympathise with him. He
has been called the ‘poet of poets,’ a proud title, and,
in some respects, deserved.”[242]
Of his creed, the article which he most firmly
held, and which, perhaps, most distinguishes him
from ordinary thinkers, was the Perfectibility of his
species, and his firm faith in the ultimate triumph of
Good. “He believed,” says the one authority who had
the best means of knowing his thought and feeling,
“that mankind had only to will that there should be
no evil, and there would be none. It is not my part in
these notes to criticise the arguments that have been
urged against this opinion, but to mention the fact
that he entertained it, and was, indeed, attached to
it with fervent enthusiasm. That man could be so
perfectionised as to be able to expel Evil from his
own nature, and from the greater part of the world,
was the cardinal point of his system. And the subject
he liked best to dwell upon was the image of One
warring with an evil principle, oppressed not only by
it but by all, even the good, who were deluded into
considering evil a necessary portion of humanity—a
victim full of gratitude and of hope and of the spirit
of triumph emanating from a reliance in the ultimate
omnipotence of Good.” Such was the conviction
which inspired his greatest poem The Prometheus
Unbound.
A principal charm of his poetry is that which
repels the common class of readers: “He loved to
idealise reality, and this is a task shared by few. We
are willing to have our passing whims exalted into
passions, for this gratifies our vanity. But few of us
understand or sympathise with the endeavour to ally
the love of abstract beauty and adoration of abstract
Good with sympathies with our own kind.”[243] Of so
rare a spirit it is peculiarly interesting to know
something of the outward form:—
 “His features [describes one of his biographers] were not
symmetrical—the mouth, perhaps, excepted. Yet the effect of
the whole was extremely powerful. They breathed an
animation, a fire, an enthusiasm, a vivid and preternatural
intelligence, that I never met with in any other countenance.
Nor was the moral expression less beautiful than the
intellectual: for there was a softness, a delicacy, a gentleness,
and especially (though this will surprise many) that air of
profound religious veneration that characterises the best
works, and chiefly the frescoes, of the great Masters of
Florence and of Rome.
“His eyes were blue, unfathomably dark and lustrous. His
hair was brown: but very early in life it became grey, while his
unwrinkled face retained to the last a look of wonderful
youth. It is admitted on all sides that no adequate picture was
ever painted of him. Mulready is reported to have said that he
was too beautiful to paint. And yet, although so singularly
lovely, he owed less of his charm to regularity of feature, or
to grace of movement, than to an indescribable personal
fascination.”

As to his voice, impressions varied:—

“Like all finely-tempered natures, he vibrated in harmony

with the subjects of his thought. Excitement made his
utterance shrill and sharp. Deep feeling, or the sense of
beauty, lowered its tone to richness; but the timbre was
always acute, in sympathy with his intense temperament. All
was of one piece in Shelley’s nature. This peculiar voice,
varying from moment to moment, and affecting different
sensibilities in diverse ways, corresponds to the high-strung
passion of his life, his finedrawn and ethereal fancies, and the
clear vibrations of his palpitating verse. Such a voice, far-
reaching, penetrating, and unearthly, befitted one who lived
 in rarest ether on the topmost heights of human
thought.”[244]

If the physical characteristics of a great Teacher

or of a sublime Genius excite a natural curiosity, it is
the principal moral characteristics which most
reasonably and profoundly interest us. To the
supremely amiable disposition of the creator of The
Cenci and Prometheus Unbound brief reference has
been made; and we shall fitly supplement this
imperfect sketch of his humanitarian career with the
vivid impressions left on the mind of the friend who
best knew him. Love of truth and hatred of falsehood
and injustice were not, in his case, limited to the
pages of a book, and forgotten in the too often
deadening influence of intercourse with the world—
they permeated his whole life and conversation.

“The qualities that struck any one newly introduced to

Shelley were, first, a gentle and cordial goodness that
animated his discourse with warm affection and helpful
sympathy; the other, the eagerness and ardour with which he
was attached to the cause of human happiness and
improvement, and the fervent eloquence with which he
discussed such subjects. His conversation was marked by its
happy abundance, and the beautiful language in which he
clothed his poetic ideas and philosophical notions. To defecate
life of its misery and its evil was the ruling passion of his soul;
he dedicated to it every power of his mind, every pulsation of
his heart. He looked on political freedom as the direct agent
to effect the happiness of mankind; and thus any new-sprung
hope of liberty inspired a joy and even exultation more
intense and wild than he could have felt for any personal
advantage. Those who have never experienced the workings
of passion on general and unselfish subjects cannot
understand this; and it must be difficult of comprehension to
the younger generation rising around, since they cannot
remember the scorn and hatred with which the partisans of
reform were regarded some few years ago, nor the
persecution to which they were exposed.
“Many advantages attended his birth; he spurned them all
when balanced with what he considered his duties. He was
generous to imprudence—devoted to heroism. These
characteristics breathe throughout his poetry. The struggle for
human weal; the resolution firm to martyrdom; the impetuous
pursuit; the glad triumph in good; the determination not to
despair.... Perfectly gentle and forbearing in manner, he
suffered a great deal of internal irritability, or rather
excitement, and his fortitude to bear was almost always on
the stretch; and thus, during a short life, he had gone
through more experience of sensation than many whose
existence is protracted. ‘If I die to-morrow,’ he said, on the
eve of unanticipated death, ‘I have lived to be older than my
father.’ The weight of thought and feeling burdened him
heavily. You read his sufferings in his attenuated frame, while
you perceived the mastery he held over them in his animated
countenance and brilliant eyes.
“He died, and the world showed no outward sigh; but his
influence over mankind, though slow in growth, is fast
augmenting; and in the ameliorations that have taken place in
the political state of his country we may trace, in part, the
operation of his arduous struggles.... He died, and his place
among those who knew him intimately has never been filled
up. He walked beside them like a spirit of good to comfort
and benefit—to enlighten the darkness of life with irradiations
of genius, to cheer with his sympathy and love.”[245]
 WITH the name of Shelley is usually connected
that of his more popular contemporary, Byron (1788–
1824). The brother poets, it already has been noted,
met in Switzerland; and, afterwards, they had some
intercourse in Italy during Shelley’s last years.
Excepting surpassing genius, and equal impatience
of conventional laws and usages they had little in
common. The one was first and above all a reformer,
the other a satirist. To assert, however, the author of
Childe Harold to have been inspired solely by cynical
contempt for his species is unjust. A large part of his
poems is pervaded apparently with an intense
conviction of the evils of life as produced by human
selfishness and folly. But what distinguishes the
author of Prometheus Unbound from his great rival
(if he may be so called) is the sure and certain hope
of a future of happiness for the world. Thus, that
belief in the all-importance of humane dietetics, as a
principal factor in the production of weal or woe on
earth, is far less apparent in Byron is matter of
course.
Yet, that in moments of better feeling, Byron
revolted from the gross materialism of the banquets,
of which, as he expresses it, England
 “Was wont to boast—as if a Glutton’s tray
Were something very glorious to behold.”[246]

and that, had he not been seduced by the dinner-

giving propensity of English society, he would have
retained his early preference for the refined diet, we
are glad to believe. In a letter to his mother, written
in his early youth, he announces that he had
determined upon relinquishment of flesh-eating, and
his clearer mental perceptions in consequence of his
reformed living;[247] and he seems even to have
advanced to the extreme frugality of living, at times,
upon biscuits and water only.
It would have been well for him had he, like
Shelley, abstained from gross eating and drinking
upon principle; and had he uniformly adhered to the
resolution formed in his earlier years, we should, in
that case, not have to lament his too notorious
sexual intemperance.
 XLII.
PHILLIPS. 1767–1840.
IT is an obvious truth—in vain demonstrated
seventeen centuries since by the best moral teachers
of non-Christian antiquity—that abolition of the
slaughter-house, with all the cruel barbarism directly
or indirectly associated with it, by a necessary and
logical corollary, involves abolition of every form of
injustice and cruelty. Of this truth the subject of the
present article is a conspicuous witness. During his
long and active career, in social and political as well
as in literary life, Sir Richard Phillips was a consistent
philanthropist; and few, in his position of influence,
have surpassed him in real beneficence. In the face
of rancorous obloquy and opposition from that too
numerous proportion of communities which
systematically resist all “innovation” and deviation
from the “ancient paths,” he fearlessly maintained
the cause of the oppressed; and, as a prison
reformer, he claims a place second only to that of
Howard.
 Of his life we have fuller record than we have of
some others of the prophets of dietetic reformation.
Yet there is uncertainty as to his birthplace. One
account represents him to have been born in
London, and to have been the son of a brewer.
Another statement, which appears to be more
authentic, reports his place of birth to have been in
the neighbourhood of Leicester, and his father to
have been a farmer. What is of more permanent
interest is the account preserved of the reason of his
first revolt from the practice of kreophagy. Disliking
the business of farming, it seems, while yet quite
young, not without the acquiescence of his parents,
he had adventurously sought his living, on his own
account, in the metropolis. What, if any, plans had
been formed by him is not known; but it is certain
that he soon found himself in imminent danger of
starvation, and, after brief trial, he gladly re-sought
his home. Upon his return to the farm, he found
awaiting him the welcome of the “Prodigal Son”—
although, happily, he had no just claim to the title of
that well-known character. A “fatted calf” was killed,
and the boy shared in the dish with the rest of the
family. It was not until after the feast that he learned
that the slaughtered calf had been his especial
favourite and playmate. So revolting to his keener
sensibility was the consciousness of this fact, that he
registered a vow never again to live upon the
products of slaughter. To this determination he
adhered during the remainder of his long life.[248]
His next venture, and first choice of a profession,
while he was still quite young, led him to engage in
teaching. As an advertisement he placed a flag at the
door of a house in which he rented a room, where he
gave elementary instruction to such children as were
entrusted to his tuition by the townspeople of
Leicester. The experiment proved not very successful,
and at the end of a twelvemonth he tried his fortune
elsewhere. He next turned to commerce—at first in a
humble fashion. His business prospered, and his next
important undertaking was the establishment of a
newspaper—the Leicester Herald. This journal was
what is now called a “Liberal” paper. Yet by those
who affected to identify the welfare of England with
the continued existence of rotten boroughs and other
corruptions, it was held up to opprobrium as
revolutionary and “incendiary.” Phillips himself had
the reputation of an able political writer; but the
chief support of the journal was the celebrated Dr.
Priestley, whose name and contributions gave it a
reputation it otherwise might not have gained. The
responsible editor did not escape the perils that then
environed the denouncers of legal or social iniquity,
and Phillips, convicted of a “misdemeanour,” was
sentenced to three years’ imprisonment in the
Leicester jail. During his imprisonment he displayed
the beneficence of his disposition in relieving the
miseries of some of his more wretched companions.
Upon his release, he sold his interest in the Leicester
Herald, and for some time confined himself
altogether to his business.
Leaving Leicester he migrated to London and set
up a hosiery establishment, which, however, he soon
converted into the more congenial bookshop. It was
the success of the Leicester Herald that, probably,
led him to think of starting a new periodical. Upon
consultation with Priestley and other friends he was
encouraged to proceed, and the Monthly Magazine
was the result. It commenced in July 1795 and
proved to be a most decided success. At first
conducted by Priestley, it was afterwards partly
under the editorship of Dr. Aikin, author of the
Country Around Manchester. The proprietors shared
in the management of the magazine, but to what
extent it is difficult to ascertain. Amongst the
contributors was “Peter Pindar,” so well known as the
author, amongst other satirical rhymes, of the verses
upon George III., perplexed by the celebrated “apple
dumpling.” The monthly receipts from the sale
amounted to £1,500. A quarrel with Aikin was
followed by the resignation of the editor. Increase of
business soon led to a removal of the publishing-
house from St. Paul’s Churchyard to a much larger
establishment in Blackfriars. His home was at
Hampstead where, in a beautiful neighbourhood and
in an elegant villa, the opulent publisher enjoyed the
refined pleasures which his humaneness of living, as
well as beneficent industry, had justly deserved. At
this time he began a correspondence with C. J. Fox,
on the subject of the History of James II., upon
which the famous Whig statesman was then
engaged. Four letters addressed to him by Fox have
been printed, but they have no special importance.
He was already married, and the story of his
courtship has more than the mere gossiping interest
of ordinary biography. Upon his first arrival in
London, he had taken lodgings in the house of a
milliner. One of her assistants was a Miss Griffiths, a
beautiful young Welsh girl, who, learning the
unconquerable aversion of their guest from the
common culinary barbarism, had amiably
volunteered to prepare his dishes on strictly anti-
kreophagist principles. This incident induced a
sympathy and friendship which speedily resulted in a
proposal of marriage. They were a handsome pair;
and a somewhat precipitate matrimonial alliance was
followed by many years of unmixed happiness for
both.
 In 1807 the “Livery” of London elected him to the
office of High Sheriff of the City and County of
Middlesex for the ensuing year. This responsible post
put to the proof the sincerity of his professions as a
reformer. Nor did he fail in the trial. During his term
of power he effected many improvements in the
treatment of the real or pretended criminals who, as
occupants of the jails, came under his jurisdiction.
No one who has read Howard’s State of the Prisons,
published thirty years before Phillips’ entrance upon
his office, or even general accounts of them, needs
to be told that they were the very nurseries of
disease, vice, misery, and crime of all kinds—one of
the many everlasting disgraces of the governments
and civilisation of the day. Nor had they been
appreciably improved during the interval of thirty
years.
The new Sheriff daily visited Newgate and the
Fleet prisons and, by personal inquiry, made himself
acquainted with the actual state of the occupants,
and in many ways was able to ameliorate their
condition. By his direction several collecting boxes
were conspicuously displayed, and the alms collected
were applied to the relief of the families of destitute
debtors. He further insisted that persons, whose
indictments had been ignored by the grand jury,
should not be detained in the foul and pestilential
atmosphere, as was then the case, but should be
immediately released.
In his admirable Letter to the Livery of London,
he begins with an appeal to the common sentiments
of humanity which ought to have some influence
with those in authority. He reminds his readers that:
—

“It is too much the fashion to exclude feeling from the

business of public life, and a total absence of it is considered
as a necessary qualification in a public man. Among
statesmen and politicians he is considered as weak and
incompetent who suffers natural affection to have any
influence on his political calculations.”

In a note to this passage he adds:—

“It appears to me that political errors of all kinds arise, in

a great degree, from the studied banishment of feeling from
the consideration of statesmen. Reasoning frequently fails us
from a false estimate of the premises on which our
deductions are founded. But feeling, which, in most respects,
is synonymous with conscience, is almost always right.
Statesmen are apt to view society as a machine, the several
parts of which must be made by them to perform their
respective functions for the success of the whole. The
comparison is often made, but the analogy is not perfect. The
parts of the social machine are made up of sensitive beings,
each of whom (though in the obscurest situation) is equal, in
all the affections of our nature, to those in the most
conspicuous places. The harmony and happiness of the whole
 will depend on the degree of feeling exercised by the
directors and prime movers.”

After this preliminary exhortation, he presents to

their contemplation an appalling revelation of the
stupid cruelties of the criminal law and its
administration. He gives a graphic account of the jail
of Newgate—both of the felons’ and the debtors’
division. The dimensions of the entire building were
105 yards by 40 yards, of which only one-fourth part
was used by the prisoners. Into this space were
crowded sometimes seven or eight hundred, never
less than four or five hundred, human beings of both
sexes and of all ages. “Felons” and debtors seem to
have fared pretty much the same, and filth, fever,
and starvation prevailed in all parts of the jail alike.
The women prisoners he describes as pressed
together so closely as, upon lying down, to leave no
atom of space between their bodies. As for the
results of this neglect on the part of the State, he
finds it impossible to draw an adequate picture of
them, and is at a loss to imagine how the whole city
is not carried off by a plague. By persevering energy
he obtained some reformation, although he failed in
his proposal for a new building.
As to the individual occupants of these pest-
houses, he found a large number whose offences
were comparatively of an innocent kind, but who
were herded with the most savage criminals. He
espoused the cause of several of these prisoners—
especially of the women—who, after some years of
incarceration, were frequently drifted off to Botany
Bay, which, besides its other terrors, was for almost
all of them a perpetual separation from their homes,
their husbands, and families. Twice he vainly
addressed a memorial to the Secretary of State (Lord
Hawkesbury) on their behalf. The traditions and
routine of office were too powerful even for his
persistent energy.
Romilly had lately introduced his measure for
amendment of the barbarous and bloody penal code
of this country. Sir Richard Phillips addressed to him
also a thoughtful letter, in which were pointed out
some of the more glaring abuses in the
administration of the laws, with which his official
experience as High Sheriff had made him familiar.
When Mansfield was Lord Chief Justice, and Thurlow
Lord Chancellor, the hangings were so numerous
that, as he informs us, on one “hanging holiday” he
saw nineteen persons on the gallows, the eldest of
whom was not twenty-two years of age. The larger
number, probably, had been sentenced to this
barbarous death for theft of various kinds. Three
hundred years had passed away since the
animadversions of More (before his accession to
office) in the Utopia, and some half-century since
Beccaria and Voltaire had protested against this
monstrous iniquity of criminal legislation, without
effect, in England, at least. As far as their
contemporaries and their successors for long
afterwards were concerned these philanthropists had
written wholly in vain.
In the letter to Romilly Phillips insists particularly
upon the following reforms: (1) No prisoner to be
placed in irons before trial. (2) None to be denied
free access of friends or legal advisers. (3) None to
be deprived of adequate means of subsistence—14
ounces of bread then being the maximum of
allowance of food. (4) Every prisoner to be
discharged as soon as the grand jury shall have
thrown out the bill of indictment. (5) Abolition of
payment to jailors by exactions forced from the most
destitute prisoners, and of various other exorbitant
or illegal fines and extortions. (6) Separation of
lunatic from other occupants of the jails. (7) That
counsel be provided for those too poor to pay for
themselves.
In 1811 Phillips published his Treatise on the
Powers and Duties of Juries, and on the Criminal
Laws of England. Three years later Golden Rules for
Jurymen, which he afterwards expanded into a book
entitled Golden Rules of Social Philosophy (1826), in
which he lays down rules of conduct for the ordinary
business of life—lawyers, clergymen, schoolmasters,
and others being the objects of his admonitions. It is
in this work that the civic dignitary—so “splendidly
false” to the habits of his class—sets forth at length
the principles upon which his unalterable faith in the
truth of humanitarian dietetics was founded. The
reasons of this “true confession” are fully and
perspicuously specified, and the first forms the key-
note of the rest:—[249]

“1. Because, being mortal himself, and holding his life on

the same uncertain and precarious tenure as all other
sensitive beings, he does not find himself justified by any
supposed superiority or inequality of condition in destroying
the enjoyment of existence of any other mortal, except in the
necessary defence of his own life.
“2. Because the desire of life is so paramount, and so
affectingly cherished in all sensitive beings, that he cannot
reconcile it to his feelings to destroy or become a voluntary
party in the destruction of any innocent living being, however
much in his power, or apparently insignificant.
“3. Because he feels the same abhorrence from devouring
flesh in general that he hears carnivorous men express
against eating human flesh, or the flesh of Horses, Dogs,
Cats, or other animals which, in some countries, it is not
customary for carnivorous men to devour.
“4. Because Nature seems to have made a superabundant
provision for the nourishment of [frugivorous] animals in the
saccharine matter of Roots and Fruits, in the farinaceous
matter of Grain, Seed, and Pulse, and in the oleaginous
matter of the Stalks, Leaves, and Pericarps of numerous
vegetables.
“5. Because he feels an utter and unconquerable
repugnance against receiving into his stomach the flesh or
juices of deceased animal organisation.
“6. Because the destruction of the mechanical organisation
of vegetables inflicts no sensible suffering, nor violates any
moral feeling, while vegetables serve to sustain his health,
strength, and spirits above those of most carnivorous men.
“7. Because during thirty years of rigid abstinence from
the flesh and juices of deceased sensitive beings, he finds
that he has not suffered a day’s serious illness, that his
animal strength and vigour have been equal or superior to
that of other men, and that his mind has been fully equal to
numerous shocks which he has had to encounter from malice,
envy, and various acts of turpitude in his fellow-men.
“8. Because observing that carnivorous propensities
among animals are accompanied by a total want of
sympathetic feelings and gentle sentiments—as in the
Hyæna, the Tiger, the Vulture, the Eagle, the Crocodile, and
the Shark—he conceives that the practice of these
carnivorous tyrants affords no worthy example for the
imitation or justification of rational, reflecting, and
conscientious beings.
“9. Because he observes that carnivorous men,
unrestrained by reflection or sentiment, even refine on the
most cruel practices of the most savage animals [of other
species], and apply their resources of mind and art to prolong
the miseries of the victims of their appetites—bleeding,
skinning, roasting, and boiling animals alive, and torturing
them without reservation or remorse, if they thereby add to
the variety or the delicacy of their carnivorous gluttony.
 “10. Because the natural sentiments and sympathies of
human beings, in regard to the killing of other animals, are
generally so averse from the practice that few men or women
could devour the animals whom they might be obliged
themselves to kill; and yet they forget, or affect to forget, the
living endearments or dying sufferings of the being, while
they are wantoning over his remains.
“11. Because the human stomach appears to be naturally
so averse from receiving the remains of animals, that few
could partake of them if they were not disguised and
flavoured by culinary preparation; yet rational beings ought to
feel that the prepared substances are not the less what they
truly are, and that no disguise of food, in itself loathsome,
ought to delude the unsophisticated perceptions of a
considerate mind.
“12. Because the forty-seven millions of acres in England
and Wales would maintain in abundance as many human
inhabitants, if they lived wholly on grain, fruits, and
vegetables; but they sustain only twelve millions [in 1811]
scantily, while animal food is made the basis of human
subsistence.
“13. Because animals do not present or contain the
substance of food in mass, like vegetables; every part of their
economy being subservient to their mere existence, and their
entire frames being solely composed of blood necessary for
life, of bones for strength, of muscles for motion, and of
nerves for sensation.
“14. Because the practice of killing and devouring animals
can be justified by no moral plea, by no physical benefit, nor
by any just allegation of necessity in countries where there is
abundance of vegetable food, and where the arts of
gardening and husbandry are favoured by social protection,
and by the genial character of the soil and climate.
 “15. Because wherever the number and hostility of
predatory land animals might so tend to prevent the
cultivation of vegetable food as to render it necessary to
destroy and, perhaps, to eat them, there could in that case
exist no necessity for destroying the animated existences of
the distinct elements of air and water; and, as in most
civilised countries, there exist no land animals besides those
which are properly bred for slaughter or luxury, of course the
destruction of mammals and birds in such countries must be
ascribed either to unthinking wantonness or to carnivorous
gluttony.
“16. Because the stomachs of locomotive beings appear to
have been provided for the purpose of conveying about with
the moving animal nutritive substances, analogous in effect to
the soil in which are fixed the roots of plants and, therefore,
nothing ought to be introduced into the stomach for digestion
and for absorption by the lacteals, or roots of the animal
system, but the natural bases of simple nutrition—as the
saccharine, the oleaginous, and the farinaceous matter of the
vegetable kingdom.”[250]

Perhaps his most entertaining book is his Morning

Walk from London to Kew (1817). In it he avails
himself of the various objects on his road for
instructive moralising—as, for example, when he
meets with a mutilated soldier, on the frightful waste
and cruelty of war; or with a horse struggling up a
precipitous hill in agony of suffering from the torture
of the bearing-rein, on the common forms of selfish
cruelty; or again, when he deplores the incalculable
waste of food resources, by the careless
indifferentism of owners of land and of the State in
allowing the country to remain encumbered with
useless, or comparatively useless, timber, in place of
planting it with valuable fruit trees of various sorts
according to the nature of the soil.
His next publication of importance was his Million
of Facts and Correct Data and Elementary Constants
in the entire Circle of the Sciences, and on all
Subjects of Speculation and Practice (1832) 8vo. It is
this work by which, perhaps, Phillips is now most
known—an immense collection and, although many
of the “Constants” may be open to criticism or have
already become obsolete, it may still be examined
with interest. The plan of the work is that of a
classified collection of scraps of information on all the
arts and sciences. It was so popular that five large
editions were published in seven years. His preface
to the stereotyped edition is dated 1839. He remarks
that “his pretensions for such a task are a prolonged
and uninterrupted intercourse with books and men of
letters. He has, for forty-nine years, been occupied
as the literary conductor of various public journals of
reputation; he has superintended the press in the
printing of many hundred books in every branch of
human pursuit, and he has been intimately
associated with men celebrated for their attainments
in each of them.” In the facts concerning anatomy
and physiology will be found references to scientific
and other authorities upon the subject of flesh-
eating.
Occasionally we meet with biographical facts of
special interest. Thus, he says that, early in 1825, he
suggested the first idea of the Society for the
Diffusion of Useful Knowledge to Dr. Birkbeck and
then, by his advice, to Lord Brougham. His idea was
the establishment of a fund for selling or giving away
books and tracts, after the manner of the Religious
Tract Society. As regards his astronomic paradoxes,
his theory, in opposition to the Newtonian, that the
phenomena attributed to gravitation are, in reality,
the “proximate effects of the orbicular and rotatory
motions of the earth” (for which he was severely
criticised by Professor De Morgan), exhibits at least
the various activity, if not the invariable infallibility, of
his mental powers.
A work of equal interest with a Million of Facts is
his next compilation—A Dictionary of the Arts of Life
and Civilisation (1833). Under the article Diet he well
remarks:—

“Some regard it as a purely egotistical question whether

men live on flesh or on vegetables. But others mix with it
moral feelings towards animals. If theory prescribed human
flesh, the former party would lie in wait to devour their
brethren; but the latter, regarding the value of life to all that
breathe, consider that, even in a balance of argument,
 feelings of sympathy ought to turn the scale.... We see all the
best animal and social qualities in mere vegetable-feeders....
Beasts of prey are necessarily solitary and fearful, even of
one another. Physiologists, themselves carnivorous, differ on
the subject, but they never take into account moral
considerations.
“Though it is known that the Hindus and other Eastern
peoples live wholly on rice—that the Irish and Scotch
peasantry subsist on potatoes and oatmeal—and that the
labouring poor of all countries live on the food, of which an
acre yields one hundred times more than of flesh, while they
enjoy unabated health and long life—yet an endless play of
sophistry is maintained about the alleged necessity of killing
and devouring animals.
“At twelve years of age the author of this volume was
struck with such horror in accidentally seeing the barbarities
of a London slaughter-house, that since that hour he has
never eaten anything but vegetables. He persevered, in spite
of vulgar forebodings, with unabated vigorous health; and at
sixty-six finds himself more able to undergo any fatigue of
mind and body than any other person of his age. He quotes
himself because the case, in so carnivorous a country, is
uncommon—especially in the grades of society in which he
has been accustomed to live.... On principle he does not
abstain from any vegetable luxuries or from fermented
liquors; but any indulgence in the latter requires (he hastens
to add) the correction of carbonate of soda. He is always in
better health when water is his sole beverage; and such is the
case with all who have imitated his practice.”[251]

Under the article “Farming,” he observes that “a

man who eats 1lb. of flesh eats the exact equivalent
of 6lbs. of wheat, and 128lbs. of potatoes.” That is,
that he, in such proportion, wastes the national
resources of a country.
The High Sheriff, on the occasion of some petition
to the King, had been knighted, (to the affected
scandal of his political enemies, who, apparently,
wished to reserve all titular or other recognition for
their own party), and the conspicuous beneficence of
his career, while in office, had gained for him an
honourable popularity. But fortune, so long
favourable, now for a time showed itself adverse. In
1809 his affairs became embarrassed, and recourse
to the bankruptcy court inevitable. Happily his friends
aided him in saving from the general wreck the
copyright of the Monthly Magazine. Its management
was a chief occupation of his remaining years; and
his own contributions, under the signature of
“Common Sense,” attracted marked attention. In his
publishing career, the most curious incident was the
refusal of the MSS. of Waverley. The author’s
demands seem to have been in excess of the value
placed upon the novel by the publisher. It had been
advertised in the first instance (he tells us) as the
production of Mr. W. Scott. The name was then
withdrawn, and the famous novel came before the
world anonymously.
Besides the writings already noticed, Phillips
compiled or edited a large number of school books.
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