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Rh circumstances and juvenile whipping, in general, only as a device to keep the juvenile out of prison.

The structure and content of Chapter 3 suggests a two-stage enquiry. The first stage is concerned with establishing whether there is a violation of a right sought to be protected by the Constitution; this has been answered in the affirmative. The second leg of the enquiry deals with the question whether the violation constitutes a permissible limitation of the right in question. Section 33(1) of the Constitution provides:

"The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation —

shall be permissible only to the extent that it is —

reasonable; and justifiable in an open and democratic society based on freedom and equality; and

shall not negate the essential content of the right in question, and provided further that any limitation to — a right entrenched in section 10, 11 … shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary."

Applicants contended firstly, that the rights at issue were not capable of limitation and that section 33(1) of the Constitution was therefore not applicable. The implication of this proposition was that no further enquiry was called for once a violation of the right had been proved.

This argument raises an issue which this Court may have to confront in the future and that is the tension between threshold requirements and requirements of limitation. The issue has been raised in argument in other cases which have come before us. It is, however, not an issue which needs to be resolved in this case. In S v Makwanyane (supra) this court dealt with section 11(2) of the Constitution on the basis that section 33(1) is applicable to

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Rh breaches of that section. I follow the same approach in the present case.

Applicants claimed further that even if the right was subject to limitation, juvenile whipping provisions failed to satisfy the requirements of section 33(1) of the Constitution. The attitude of the State was that juvenile whipping was neither cruel nor inhuman and it was no more degrading than other acceptable punishments; it was contended that to the extent that the punishment could be said to be in some way humiliating or degrading, it was within permissible constitutional limits because of the provisions of section 33(1) of the Constitution.

The enquiry involves testing the measures adopted against the objective sought to be achieved. The gist of it, put in the context and the language of section 33(1), really amounts initially to three questions, namely: (a) whether the means used are reasonable; (b) whether they are justifiable in the context of the civilized society we hope we are or which we, through this Constitution, are aspiring to be; and (c) whether they are necessary to attain the objective. The test relies on proportionality, a process of weighing up the individual's right which the State wishes to limit against the objective which the State seeks to achieve by such limitation.

This evaluation must necessarily take place against the backdrop of the values of South African society as articulated in the Constitution and in other legislation, in the decisions of our courts and generally against our own experiences as a people.

In State v Makwanyane and Mchunu Chaskalson P deals with the "proportionality" test which is also implicit in the limitation of rights in Canada and the European Court. As a general conclusion he notes that the limitation of constitutional rights for a purpose that is necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. He points out how the German Constitutional Court applies the proportionality test in dealing with limitations authorised

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Page:S v Williams and Others.djvu/22


text: While the Billy Boils/Catalogue of Books


text:
A Secret (Coates)

 * "A Secret" in Harper's Magazine (November 1913).
 * "A Secret" in Poems II (1916)

title: A Secret (Coates)


text:
Page:The Holy Bible, containing the Old & New Testament & the Apocrypha.djvu/948

Rh dealeth very subtilly. See therefore, and take knowledge of all the lurking places where he hideth himself, and come ye again to me with the certainty, and I will go with you: and it shall come to pass, if he be in the land, that I will search him out throughout all the thousands of Judah. And they arose, and went to Ziph before Saul: but David and his men were in the wilderness of Maon, in the plain on the south of Jeshimon. Saul also and his men went to seek him. And they told David: wherefore he came down into a rock, and abode in the wilderness of Maon. And when Saul heard that, he pursued after David in the wilderness of Maon. And Saul went on this side of the mountain, and David and his men on that side of the mountain: and David made haste to get away for fear of Saul; for Saul and his men compassed David and his men round about to take them.

But there came a messenger unto Saul, saying, Haste thee, and come; for the Philistines have invaded the land. Wherefore Saul returned from pursuing after David, and went against the Philistines: therefore they called that place Sela-hammahlekoth.

And David went up from thence, and dwelt in strong holds at En-gedi.

it came to pass, when Saul was returned from following the Philistines, that it was told him, saying,


text:
To Hope

 * "To Hope", a poem by Mathilde Blind (Oh come, thou power divine)
 * "To Hope", a poem by Felicia Dorothea Browne (Fair enchantress gaily kind)
 * "To Hope", a poem by Florence Earle Coates (Giver and Gift!)
 * "To Hope", a poem by John Keats (When by my solitary hearth I sit)

title: To Hope


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XXIV] Behold, David is in the wilderness of En-gedi. Then Saul took three thousand chosen men out ot all Israel, and went to seek David and his men upon the rocks of the wild goats. And he came to the sheepcotes by the way, where was a cave; and Saul went in to cover his feet: and David and his men remained in the sides of the cave. And the men of David said unto him, Behold the day of which the Lord said unto thee, Behold, I will deliver thine enemy into thine hand, that thou mayest do to him as it shall seem good unto thee. Then David arose, and cut off the skirt of Saul's robe privily. And it came to pass afterward, that David's heart smote him, because he had cut off Saul's skirt. And he said unto his men. The Lord forbid that I should do this thing unto my master, the Lord's anointed, to stretch forth mine hand against him, seeing he is the anointed of the Lord. So David stayed his servants with these words, and suffered them not to rise against Saul. But Saul rose up out of the cave, and went on his way. David also arose afterward, and went out of the cave, and cried after Saul, saying, My lord the king. And when Saul looked behind him, David stooped with his face to the earth, and bowed himself.

And David said to Saul, Wherefore hearest thou men's words, saying, Behold, David seeketh thy hurt? Behold, this day thine eyes have seen how that the


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Rh Saxon can make no improvement on the style of architecture in its suitability to the climate and the exclusive lives of the people. But there is often seen a free admixture of every known order of architecture, for in a newly finished building we saw the Doric, Corinthian, Pompeian, Romanesque, and Spanish. The interior decorations were exclusively in the gorgeous Pompeian.

To the stranger the most attractive points in the prevailing architecture

are the portales, those inviting retreats along the sidewalks, and the aqueducts, which may be seen for miles, with their high, massive arches, through which one catches glimpses of blue sky, lofty mountain peaks, and peaceful valleys, animated with charming pastoral scenes.

The city has stately proportions and attractions that are peculiar


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Page:The Holy Bible, containing the Old & New Testament & the Apocrypha.djvu/950

Rh Lord had delivered thee to day into mine hand in the cave: and some bade me kill thee: but mine eye spared thee; and I said, I will not put forth mine hand against my lord; for he is the Lord's anointed. Moreover, my father, see, yea, see the skirt of thy robe in my hand: for in that I cut off the skirt of thy robe, and killed thee not, know thou and see that there is neither evil nor transgression in mine hand, and I have not sinned against thee; yet thou huntest my soul to take it. The Lord judge between me and thee, and the Lord avenge me of thee: but mine hand shall not be upon thee. As saith the proverb of the ancients. Wickedness proceedeth from the wicked: but mine hand shall not be upon thee. After whom is the king of Israel come out? after whom dost thou pursue? after a dead dog, after a flea. The Lord therefore be judge, and judge between me and thee, and see, and plead my cause, and deliver me out of thine hand.

And it came to pass, when David had made an end of speaking these words unto Saul, that Saul said. Is this thy voice, my son David? And Saul lifted up his voice, and wept. And he said to David, Thou art more righteous than I: for thou hast rewarded me good, whereas I have rewarded thee evil. And thou hast shewed this day how that thou hast dealt well with me: forasmuch as when the Lord had delivered me


text:
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XXV] into thine hand, thou killedst me not. For if a man find his enemy, will he let him go well away? wherefore the Lord reward thee good for that thou hast done unto me this day. And now, behold, I know well that thou shalt surely be king, and that the kingdom of Israel shall be established in thine hand. Swear now therefore unto me by the Lord, that thou wilt not cut off my seed after me, and that thou wilt not destroy my name out of my father's house. And David sware unto Saul. And Saul went home; but David and his men gat them up unto the hold. And Samuel died; and all the Israelites were gathered together, and lamented him, and buried him in his house at Ramah. And David arose, and went down to the wilderness of Paran. And there was a man in Maon, whose possessions were in Carmel; and the man was very great, and he had three thousand sheep, and a thousand goats: and he was shearing his sheep in Carmel. Now the name of the man was Nabal; and the name of his wife Abigail: and she was a woman of good understanding, and of a beautiful countenance: but the man was churlish and evil in his doings; and he was of the house of Caleb.

And David heard in the wilderness that Nabal did shear his sheep. And David sent out ten young men, and David said unto the young men. Get you


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Page:While the Billy Boils, 1913.djvu/349

chaps in the bar of Stiffner's Shanty were talking about Macquarie, an absent shearer,―who seemed, from their conversation, to be better known than liked by them.

'I ain't seen Macquarie for ever so long,' remarked Box-o'-Tricks, after a pause. 'Wonder where he could 'a' got to?'

'Gaol, p'r'aps―or hell,' growled Barcoo. 'He ain't much loss, any road.'

'My oath, yer right, Barcoo!' interposed 'Sally' Thompson. 'But, now I come to think of it, Old Awful Example there was a mate of his one time. Bless'd if the old soaker ain't comin' to life again!'

A shaky, rag-and-dirt-covered framework of a big man rose uncertainly from a corner of the room, and, staggering forward, brushed the staring thatch back from his forehead with one hand, reached blindly for the edge of the bar with the other, and drooped heavily.

'Well, Awful Example,' demanded the shanty-keeper. 'What's up with you now?'

The drunkard lifted his head and glared wildly round with bloodshot eyes.

317!


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 346 lost. He was five times president, and was the means of deposing, probably, twenty rulers. As a commander of men, his resources and ability were remarkable. After the most disastrous defeat he generally managed to retire from the scene still holding the confidence of his ragged, half-starved army, increasing it materially while on the move.

From 1822 to 1855 he was the most conspicuous figure in public life. If deposed, he withdrew to his beautiful hacienda of Manga de Clavo, near Jalapa.

If exiled, he went without remonstrance, confident that his lucky star would again lead him to the front, and with fertile brain every ready to plan a revolution or arrange a coup d'état. But it may be truly said that in either case he was punctual to respond whenever his country demanded his services.

When the war with the United States came on, Santa Anna had shortly before returned from exile. He at once took command of an army of 20,000 men. He first met with a heavy defeat by General Taylor at Buena Vista, then at Cerro Gordo by General Scott, and when he retreated to defend the capital, defeat still followed him, and


text:
Sleep (Coates)

 * Coates, Florence Earle (1914), "Sleep" in The Athenaeum (26 December 1914).
 * Coates, Florence Earle (1916), "Sleep" in Poems II.

title: Sleep (Coates)


text:
Page:The Holy Bible, containing the Old & New Testament & the Apocrypha.djvu/952

Rh up to Carmel, and go to Nabal, and greet him in my name: and thus shall ye say to him that liveth in prosperity, Peace be both to thee, and peace be to thine house, and peace be unto all that thou hast. And now I have heard that thou hast shearers: now thy shepherds which were with us, we hurt them not, neither was there ought missing unto them, all the while they were in Carmel. Ask thy young men, and the will shew thee. Wherefore let the young men find favour in thine eyes: for we come in a good day: give, I pray thee, whatsoever cometh to thine hand unto thy servants, and to thy son David. And when David's young men came, they spake to Nabal according to all those words in the name of David, and ceased.

And Nabal answered David's servants, and said, Who is David? and who is the son of Jesse? there be many servants now a days that break away every man from his master. Shall I then take my bread, and my water, and my flesh that I have killed for my shearers, and give it unto men, whom I know not whence they be? So David's young men turned their way, and went again, and came and told him all those sayings. And David said unto his men, Gird ye on every man his sword. And they girded on every man his sword; and David also girded on his sword: and there went up after David about four hundred men; and two hun-


text:
Page:The Holy Bible, containing the Old & New Testament & the Apocrypha.djvu/953

XXV] dred abode by the stuff.

But one of the young men told Abigail, Nabal's wife, saying, Behold, David sent messengers out of the wilderness to salute our master; and he railed on them. But the men were very good unto us, and we were not hurt, neither missed we any thing, as long as we were conversant with them, when we were in the fields: they were a wall unto us both by night and day, all the while we were with them keeping the sheep. Now therefore know and consider what thou wilt do; for evil is determined against our master, and against all his household: for he is such a son of Belial, that a man cannot speak to him.

Then Abigail made haste, and took two hundred loaves, and two bottles of wine, and five sheep ready dressed, and five measures of parched corn, and an hundred clusters of raisins, and two hundred cakes of figs, and laid them on asses. And she said unto her servants, Go on before me; behold, I come after you. But she told not her husband Nabal. And it was so, as she rode on the ass, that she came down by the covert of the hill, and, behold, David and his men came down against her; and she met them. Now David had said, Surely in vain have I kept all that this fellow hath in the wilderness, so that nothing was missed of all that pertained unto him: and he hath re-


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 'Don't you―don't you talk about him! Drop it, I say! it!'

'What the devil's the matter with you now, anyway?' growled the barman. 'Got 'em again? Hey?'

'Don't you―don't you talk about Macquarie! He's a mate of mine! Here! Gimme a drink!'

'Well, what if he is a mate of yours?' sneered Barcoo. 'It don't reflec' much credit on you―nor him neither.'

The logic contained in the last three words was unanswerable, and Awful Example was still fairly reasonable, even when rum oozed out of him at every pore. He gripped the edge of the bar with both hands, let his ruined head fall forward until it was on a level with his temporarily rigid arms, and stared blindly at the dirty floor; then he straightened himself up, still keeping his hold on the bar.

'Some of you chaps' he said huskily; 'One of you chaps, in this bar to-day, called Macquarie a scoundrel, and a loafer, and a blackguard, and―and a sneak and a liar.'

'Well, what if we did?' said Barcoo, defiantly. 'He's all that, and a cheat into the bargain. And, now, what are you going to do about it?'

The old man swung sideways to the bar, rested his elbow on it, and his head on his hand.

'Macquarie wasn't a sneak and he wasn't a liar,' he said, in a quiet, tired tone; 'and Macquarie wasn't a cheat!'

'Well, old man, you needn't get your rag out about it,' said Sally Thompson, soothingly. 'P'r'aps we was a bit too hard on him; and it isn't altogether


text:
Page:The Holy Bible, containing the Old & New Testament & the Apocrypha.djvu/954

Rh quited me evil for good. So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall. And when Abigail saw David, she hasted, and lighted off the ass, and fell before David on her face, and bowed herself to the ground, and fell at his feet, and said. Upon me, my lord, upon me let this iniquity be: and let thine handmaid, I pray thee, speak in thine audience, and hear the words of thine handmaid. Let not my lord, I pray thee, regard this man of Belial, even Nabal: for as his name is, so is he; Nabal is his name, and folly is with him: but I thine handmaid saw not the young men of my lord, whom thou didst send. Now therefore, my lord, as the Lord liveth, and as thy soul liveth, seeing the Lord hath withholden thee from coming to shed blood, and from avenging thyself with thine own hand, now let thine enemies, and they that seek evil to my lord, be as Nabal. And now this blessing which thine handmaid hath brought unto my lord, let it even be given unto the young men that follow my lord. I pray thee, forgive the trespass of thine handmaid: for the Lord will certainly make my lord a sure house; because my lord fighteth the battles of the Lord, and evil hath not been found in thee all thy days. Yet a man is risen to pursue thee, and to seek thy soul: but the soul of


text:
Page:The roamer and other poems (1920).djvu/19

Rh Ay me! but what avails to nurse the soul,

And will the better world, that heaven delays?

When hath it come? Soon gathered round his heart—

O, too familiar to this clouded breast—

Immortal dread, awe of the alien powers

In this dark sphere,—these vague infinities

Of matter round the solitude of mind

With menace, this dull crush of monstrous force

Crumbling the dense compàct, this far-strown world,

Abysmal being without mete or bound,

With endless shadows roved; whence thought, alarmed,

Strains in its orbit and its casing frame,

Ranges the vast, and calls from star to star,

With question of this cold eternity.

O striving Stress, O everlasting Might,

In every atom spawning energy

And cradling life in every blowing germ,

Storm of the world, swift drift and surge of time

That lifts the swimmer to the rushing flood

One moment's space, and thrusts him down to hell,

And rolls the next aloft, while, age on age,


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 right, chaps, considerin' he's not here. But, then, you know, Awful, he might have acted straight to you that was his mate. The meanest blank―if he is a a man at all―will do that.'

'Oh, to blazes with the old sot!' shouted Barcoo. 'I gave my opinion about Macquarie, and, what's more, I'll stand to it.'

'I've got―I've got a point for the defence,' the old man went on, without heeding the interruptions. 'I've got a point or two for the defence.'

'Well, let's have it,' said Stiffner.

'In the first place―in the first place, Macquarie never talked about no man behind his back.'

There was an uneasy movement, and a painful silence. Barcoo reached for his drink and drank it slowly; he needed time to think―Box-o'-Tricks studied his boots―Sally Thompson looked out at the weather―the shanty-keeper wiped the top of the bar very hard―and the rest shifted round and 's'posed they'd try a game er cards.'

Barcoo set his glass down very softly, pocketed his hands deeply and defiantly, and said:

'Well, what of that? Macquarie was as strong as a bull, and the greatest bully on the river into the bargain. He could call a man a liar to his face―and smash his face afterwards. And he did it often, too, and with smaller men than himself.'

There was a breath of relief in the bar.

'Do you want to make out that I'm talking about a man behind his back?' continued Barcoo, threateningly, to Awful Example. 'You'd best take care, old man.'


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 'Macquarie wasn't a coward,' remonstrated the drunkard, softly, but in an injured tone.

'What's up with you, anyway?' yelled the publican. 'What yer growling at? D'ye want a row? Get out if yer can't be agreeable!'

The boozer swung his back to the bar, hooked himself on by his elbows, and looked vacantly out of the door.

'I've got―another point for the defence,' he muttered. 'It's always best―it's always best to keep the last point to―the last.'

'Oh, Lord! Well, out with it! Out with it!' 'Macquarie's dead! That's―that's what it is!'

Everyone moved uneasily: Sally Thompson turned the other side to the bar, crossed one leg behind the other, and looked down over his hip at the sole and heel of his elastic-side―the barman rinsed the glasses vigorously―Longbones shuffled and dealt on the top of a cask, and some of the others gathered round him and got interested―Barcoo thought he heard his horse breaking away, and went out to see to it, followed by Box-o'-Tricks and a couple more, who thought that it might be one of their horses.

Someone―a tall, gaunt, determined-looking bushman, with square features and haggard grey eyes―had ridden in unnoticed through the scrub to the back of the shanty and dismounted by the window.

When Barcoo and the others re-entered the bar it soon became evident that Sally Thompson had been thinking, for presently he came to the general rescue as follows:―

'There's a blessed lot of tommy rot about dead


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 people in this world―a lot of damned old woman nonsense. There's more sympathy wasted over dead and rotten skunks than there is justice done to straight, honest-livin' chaps. I don't b'lieve in this gory sentiment about the dead at the expense of the living. I b'lieve in justice for the livin'―and the dead too, for that matter―but justice for the livin'. Macquarie was a bad egg, and it don't alter the case if he was dead a thousand times.'

There was another breath of relief in the bar, and presently somebody said: 'Yer right, Sally!'

'Good for you, Sally, old man!' cried Box-o'-Tricks, taking it up. 'An', besides, I don't b'lieve Macquarie is dead at all. He's always dyin', or being reported dead, and then turnin' up again. Where did you hear about it, Awful?'

The Example ruefully rubbed a corner of his roof with the palm of his hand.

'There's―there's a lot in what you say, Sally Thompson,' he admitted slowly, totally ignoring Box-o-Tricks. 'But―but'

'Oh, we've had enough of the old fool,' yelled Barcoo. 'Macquarie was a spieler, and any man that ud be his mate ain't much better.'

'Here, take a drink and dry up, yer ole hass!' said the man behind the bar, pushing a bottle and glass towards the drunkard. 'D'ye want a row?'

The old man took the bottle and glass in his shaking hands and painfully poured out a drink.

'There's a lot in what Sally Thompson says,' he went on, obstinately, 'but―but,' he added in a strained tone 'there's another point that I near forgot, and W


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 none of you seemed to think of it―not even Sally Thompson nor―nor Box-o'-Tricks there.'

Stiffner turned his back, and Barcoo spat viciously and impatiently.

'Yes,' drivelled the drunkard, 'I've got another point for―for the defence―of my mate, Macquarie'

'Oh, out with it! Spit it out, for God's sake, or you'll bust!' roared Stiffner. 'What the blazes is it?'

'!' yelled the old man. 'Macquarie's mate's alive! That's what it is!'

He reeled back from the bar, dashed his glass and hat to the boards, gave his pants a hitch by the waistband that almost lifted him off his feet, and tore at his shirt-sleeves.

'Make a ring, boys,' he shouted. 'His mate's alive! Put up your hands, Barcoo! By God, his mate's alive!'

Someone had turned his horse loose at the rear and had been standing by the back door for the last five minutes. Now he slipped quietly in.

'Keep the old fool off, or he'll get hurt,'' snarled Barcoo.

Stiffner jumped the counter. There were loud, hurried words of remonstrance, then some stump-splitting oaths and a scuffle, consequent upon an attempt to chuck the old man out. Then a crash. Stiffner and Box-o'-Tricks were down, two others were holding Barcoo back, and someone had pinned Awful Example by the shoulders from behind.

'Let me go!' he yelled, too blind with passion to notice the movements of surprise among the men


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Rh by the German Constitution:

"It has regard to the purpose of the limiting legislation, whether the legislation in fact achieves that purpose, whether it is necessary therefor, and whether a proper balance has been achieved between the value enhanced by the limitation, and the fundamental right that has been limited."

The grounds on which the State sought to justify juvenile whipping were, firstly, that it made good practical sense to have juvenile whipping as a sentencing option. The practice had advantages for both the offender and the State, particularly in view of a shortage of resources and the infrastructure required for the implementation of other sentencing options for juveniles. Secondly, it was suggested that juvenile whipping was a deterrent.

The purpose of section 294 of the Act is to provide a sentencing option for the punishment of juvenile offenders. What must be addressed is whether it is reasonable, justifiable and necessary to resort to juvenile whipping, notwithstanding the fact that it "constitutes a severe assault upon not only the person of the recipient, but upon his dignity as a human being." The primary argument advanced in favour of juvenile whipping was that it constitutes a better alternative to imprisonment, particularly in the so-called "grey area" crimes. This was a reference to instances where a court has to deal with an offence which is not so serious as to merit a custodial sentence but is serious enough to render inappropriate the use of "softer" sentences.

It was argued that sentencing alternatives for juveniles were limited and that this country did not have a sufficiently well-established physical and human resource base which was capable of supporting the imposition of alternative punishments. This is of course an argument based on pragmatism rather than principle. It is a problem which must be taken seriously nevertheless. It seems to me, however, to be another way of saying that our society has not yet established mechanisms to deal with juveniles who find themselves in conflict with the law; that the price to be paid for this state of unreadiness is to subject juveniles to punishment that is cruel, inhuman or degrading. The proposition is untenable.

title: Page:S v Williams and Others.djvu/23


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Page:EB1911 - Volume 02.djvu/238

 nor will it relieve where a power to appoint by will is purported to be exercised by deed. A power of appointment if exercised must be exercised bona fide, otherwise it will be void as fraudulent; thus it has been frequently decided that where a father, having a limited power of appointment among his children, appoints the whole fund to an infant child, who is in no need of the appointment and who is ill, in the expectation of the death of the child whereby the fund will come to him as next of kin, such appointment is void as a fraud upon the power. Where an execution is partly fraudulent and partly valid the court will, if possible, separate the two and only revoke that which is fraudulent; if, however, the two parts are not separable the whole is void. The same rule is applied in cases of excessive execution where the power is exercised in favour of persons some of whom are and some of whom are not objects of the power. The doctrine of (q.v.) applies to appointments under powers, but there must be a gift of free and disposable property to the persons entitled in default of appointment.

The appointment must in law be read into the instrument creating the power in lieu of the power itself. Thus an appointor under a limited power cannot appoint to any person to whom the donor could not have appointed by reason of the rule against perpetuities, but this is not so in the case of a general power, for there the appointor is virtually owner of the property appointed. In applying this rule to appointments a distinction arises between powers created by deed and will, for a deed speaks from the date of its execution but a will from the death of the testator, and so limitations bad when the will was made may have become good when it comes into operation. Since the Conveyancing Act 1881 all powers may be released by the donees thereof, unless the power is coupled with a trust in respect of which there is a duty cast on the donee to exercise it; and this is so even though the donee gets a benefit by such release as one entitled in default of appointment, for this is not a fraud upon the power.

APPOMATTOX COURT HOUSE, a village of Appomattox county, Virginia, U.S.A., 25 m. E. of Lynchburg, in the S. part of the state. It is served by the Norfolk & Western railway. The village was the scene of the surrender of the Confederate Army of Northern Virginia under General Robert E. Lee to the Federal forces under Lieutenant-General U. S. Grant on Sunday the 9th of April 1865. The terms were: “the officers to give their individual paroles not to take up arms against the government of the United States until properly exchanged, and each company or regimental commander to sign a like parole for the men of their commands,” neither “side arms of the officers nor their private horses or baggage” to be surrendered; and, as many privates in the Confederate Army owned horses and mules, all horses and mules claimed by men in the Confederate Army to be left in their possession. APPONYI, ALBERT, (1846–), Hungarian statesman, the most distinguished member of an ancient noble family, dating back to the 13th century, and son of the chancellor György Apponyi (1808–1899) and the accomplished and saintly Countess Julia Sztáray, was born at Pesth on the 29th of May 1846. Educated at the Jesuit seminary at Kalksburg and at the universities of Vienna and Pesth, a long foreign tour completed his curriculum, and at Paris he made the acquaintance of Montalembert, a kindred spirit, whose influence on the young Apponyi was permanent. He entered parliament in 1872 as a liberal Catholic, attaching himself at first to the Deák party; but the feudal and ultramontane traditions of his family circle profoundly modified, though they could never destroy, his popular ideals. On the break up of the Deák party he attached himself to the conservative group which followed Baron Pál Senynyey (1824–1888) and eventually became its leader. Until 1905 Count Albert was constantly in opposition, but in May of that year he consented to take office in the second Wekerle ministry. A lofty and magnetic orator, his speeches were published at Budapest in 1896; and he is the author of an interesting dissertation, Esthetics and Politics, the Artist and the Statesman (Hung.) (Budapest, 1895). APPORTIONMENT (Fr. apportionement; Med. Lat. apportionamentum; derived from Lat. portio, share), distribution or allotment in proper shares; a term used in law in a variety of senses, (1) Sometimes it is employed roughly and with no technical meaning to indicate the distribution of a benefit (e.g. salvage or damages under the Fatal Accidents Act 1846, § 2), or liability (e.g. general average contributions, or tithe rent-charge), or the incidence of a duty (e.g. obligations as to the maintenance of highways). (2) In its strict legal interpretation apportionment falls into two classes, “apportionment in respect of estate” and “apportionment in respect of time.”

1. Apportionment in respect of Estate may result either from the act of the parties or from the operation of law. Where a lessee is evicted from, or surrenders or forfeits possession of part of the property leased to him, he becomes liable at common law to pay only a rent apportioned to the value of the interest which he still retains. So where the person entitled to the reversion of an estate assigns part of it, the right to an apportioned part of the rent incident to the whole reversion passes to his assignee. The lessee is not bound, however, by an apportionment of rent made upon the grant of part of the reversion unless it is made either with his consent or by the verdict of a jury. The assignee of the reversion of part of demised premises could not, at common law, re-enter for breach of a condition, inasmuch as a condition of re-entry in a lease could not at common law be apportioned. But this has now been altered by statute both in England (Law of Property Amendment Act 1859, § 3; Conveyancing Act 1881, § 12) and in many of the British colonies (e.g. Ontario, Rev. Stats., 1897, c. 170, § 9; Barbados, No. 12 of 1891, § 9). In the cases just mentioned there is apportionment in respect of estate by act of the parties.

2. Apportionment in respect of Time.—At common law, there was no apportionment of rent in respect of time. Such apportionment was, however, in certain cases allowed in England by the Distress for Rent Act 1737, and the Apportionment Act 1834, and is now allowed generally under the Apportionment Act 1870. Under that statute (§ 2) all rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day and to be apportionable in respect of time accordingly. It is provided, however, that the apportioned part of such rents, &c., shall only be payable or recoverable in the case of a continuing payment, when the entire portion of which it forms part itself becomes payable, and, in the case of a payment determined by re-entry, death or otherwise, only when the next entire portion would have been payable if it had not so determined (§ 3). Persons entitled to apportioned parts of rent have the same remedies for recovering them when payable as they would have had in respect of the entire rent; but a lessee is not to be liable for any apportioned part specifically. The rent is recoverable by the heir or other person who would, but for the apportionment, be entitled to the entire rent, and he holds it subject to distribution (§ 4). The Apportionment Act 1870 extends to payments not made under any instrument in writing (§ 2), but not to annual sums made payable in policies of insurance (§ 6). Apportionment under the act can be excluded by express stipulation.

The apportionment created by this statute is “apportionment in respect of time.” The cases to which it applies are mainly cases of either (A) apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies, or some other alteration in the position of parties occurs; or (B) apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest

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Rh It is diametrically opposed to the values that fuel our progress towards being a more humane and caring society. It would be a negation of those values precisely where we should be laying a strong foundation for them, in the young; the future custodians of this fledgeling democracy.

We nevertheless need to examine available resources to determine whether there are indeed appropriate sentencing options. It has to be borne in mind that the presence of various options in a number of legislative provisions may not always reflect practical realities. It is important that resources should be made available and that they should be utilised properly, so that the values expressed in the Constitution may be upheld and maintained. It bears mentioning that although changes in the criminal justice system have been occurring, albeit at a painfully slow pace, there has been a perceptible shift in approach and attitude towards punishment. I mention three aspects of this process:

(a) There has been a shift of emphasis with regard to the overall aims of punishment. There is a general acceptance, as observed by Schreiner JA in R v Karg, that the retributive aspect has tended to give way to the aspects of prevention and correction. New and innovative systems and procedures have been introduced and some of them have been incorporated into legislation. The traditional objectives of punishment, namely, prevention, retribution, deterrence and rehabilitation, are no doubt still applicable. Still applicable, albeit in modified form, are the remarks of Holmes JA that:

"Punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy … the element of mercy, a hallmark of civilised and enlightened administration, should not be overlooked, lest the Court be in danger of reducing itself to the plane of the criminal …"

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Rh While those principles have remained eternal truths with regard to the purposes of punishment, the justice and penal systems have been evolving towards a more enlightened and humane implementation of those principles. In keeping with international trends, there has been a gradual shift of emphasis away from the idea of sentencing being predominantly the arena where society wreaks its vengeance on wrongdoers. Sentences have been passed with rehabilitation in mind.

The introduction of correctional supervision with its prime focus on rehabilitation, through section 276 of the Act, was a milestone in the process of "humanising" the criminal justice system. It brought along with it the possibility of several imaginative sentencing measures including, but not limited to, house arrest, monitoring, community service and placement in employment. This assisted in the shift of emphasis from retribution to rehabilitation. This development was recognised and hailed by Kriegler AJA in S v R as being the introduction of a new phase in our criminal justice system allowing for the imposition of finely-tuned sentences without resorting to imprisonment with all its known disadvantages for both the prisoner and the broader community.

The development of this process must not be seen as a weakness, as the justice system having "gone soft." What it entails is the application of appropriate and effective sentences. An enlightened society will punish offenders, but will do so without sacrificing decency and human dignity.

(b) There is growing interest in moves to develop a new juvenile justice system. This impacts directly on the availability of sentencing options for juveniles. It has been a matter of comment that juveniles were being sentenced to whipping on the basis that it was the only alternative to a prison sentence. Judges have, in the past, indicated their distaste for juvenile whipping; they have, however, tolerated and confirmed the sentences purely as a device to avoid imprisoning juvenile offenders.

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 before him. 'Let me go! I'll smash―any man―that―that says a word again' a mate of mine behind his back. Barcoo, I'll have your blood! Let me go! I'll, I'll, I'll Who's holdin' me? You―you'

'It's Macquarie, old mate!' said a quiet voice.

Barcoo thought he heard his horse again, and went out in a hurry. Perhaps he thought that the horse would get impatient and break loose if he left it any longer, for he jumped into the saddle and rode off.


text: 1911 Encyclopædia Britannica/Appointment, Power of


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10 Millions of men innumerably spread,

Faces along the illimitable wave,

Float up, and look, and sink,—O star-cold Space,

When hast thou answered, unto whom, or where!

O, sudden sprang in him the formless fear,

And swift the dark assault began to mount,

Motions of sorrow, instincts of despair!

Before my boyhood done, such darkness came—

Night in the soul; and heaviest on him,

Who most was born to be the child of trust,

Heaviest on him and earliest, sank the stroke.

Then, O, too early chosen, his tender heart

Broke into voice and mingled tears and vows.

He stares into the waste; nought else he sees;

Base if he go not, if he go then rash,

Yet must he go; for such a soul He made

Who made him man, and set him yet a child

Among his enemies exposed and left,

And gave his naked bosom to the sword,

His heart unfortified to sure defeat,

And his pure spirit to the bond of sin;

For high designs stern counsel; not with men

Who wheel with day and night, and think 'tis fate,

His journey lies; O, sent not seldom here,

Too mortal is he born whom God doth choose!


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Rh In S v Maseti Conradie J observed that the view that whipping should be imposed as a device to keep juveniles out of prison was fallacious:

"… [r]egsbeamptes laat jong mans slaan omdat daar met ons beperkte middele, infrastrukture en vonnisopsies, net geen ander raad met hulle is nie … Maar dat die veroorsaking van pyn en leed 'n onbevredigende vonnisopsie is, weet ons algar lankal."

Noting that new sentencing options had been introduced into the criminal justice system, he voiced the hope that they would be creatively and effectively used.

Juvenile whipping, however, has not invariably met with judicial disapproval. In S v Vakalisa, Mitchell J referred to remarks in S v V en 'n Ander in which MT Steyn JA dealt at length with the undesirability of corporal punishment and described it as "extremely humiliating and physically painful." Mitchell J went on to observe:

"Whatever may be the South African view of this kind of punishment [juvenile whipping], the Transkeian lawgiver has taken a different view of the desirability of corporal punishment in respect of juveniles even, as I have mentioned, specifically providing for the whipping of female juveniles, a sentence which is frequently applied in various magisterial districts of Transkei. I would have thought that it is far more important to keep juveniles out of gaol where the appropriate circumstances exist, to save them the association with adult convicted criminals, than to shy away from the imposition of a 'juvenile whipping'. This is particularly true in Transkei when, if a juvenile

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Rh is sent to prison, he cannot be sent to one for first offenders only, or to one where juveniles are effectively kept apart from adult criminals, for no such facilities yet exist in this country."

Apart from drawing attention to the distressing fact that some legislation still permitted the whipping of females, Mitchell J's remarks in fact summarised what turned out to be the central argument proffered by the State in favour of the retention of juvenile whipping. If the option of corporal punishment is taken away, so we were warned, many juveniles who would not otherwise have been sent to gaol would now have to be imprisoned. 86

Pickering J's approach in S v Sikunyana appears to be more helpful in that it gives implicit recognition to alternative correctional supervision sentencing options and the need for courts not to be "unduly hamstrung" by administrative and other difficulties in implementing community service orders. It would therefore seem that notwithstanding the daunting problems highlighted by Mitchell J in 1990, the prospects for more enlightened sentencing options have improved.

To the extent that facilities and physical resources may not always be adequate, it seems to me that the new dynamic should be regarded as a timely challenge to the State to ensure the provision and execution of an effective juvenile justice system. The wider range of penalties now provided for in the Act permits a more flexible but effective approach in dealing with juvenile offenders.

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text: 1911 Encyclopædia Britannica/Appomattox Court House


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Rh There is indeed much room for new creative methods to deal with the problem of juvenile justice. During argument, we were informed that interesting sentencing options were being increasingly applied in the Western Cape and that Conradie J's suggestion to magistrates was a further encouragement to the process. There are, for instance, community service orders which are linked to suspended or postponed sentences. These are structured in such a way that they meet the punitive element of sentencing while allowing for the education and rehabilitation of the offender. There is also the victim-offender mediation process in terms of which the victim is enabled to participate in the justice process, receive restitution while the offender is assisted to rehabilitate. There are sentences which are suspended on condition that the offender attends a juvenile offender school for a specific purpose. These orders are structured in such a way that they yield benefits to the victim of the crime, the offender and to the community. Doubtless these processes, still in their infancy, can be developed through involvement by State and non-governmental agencies and institutions which are involved in juvenile justice projects.

(c) The enactment of the Constitution has created a framework within which significant changes can be brought about in the criminal justice system. The rights entrenched in Chapter 3 are available to "every person"; that includes children and adults, women and men, prisoners and detainees. The Constitution clearly places a very high premium on human dignity and the protection against punishments that are cruel, inhuman or degrading; very stringent requirements would have to be met by the State before these rights can be limited.

In addressing itself specifically to punishment, the Constitution ensures that the sentencing of offenders must conform to standards of decency recognised throughout the civilised word. Thus it sets a norm; measures that assail the dignity and self esteem of an individual will need to be justified; there is no place for brutal and dehumanising treatment and punishment. The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those

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Rh rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavours to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilised societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that "… even the vilest criminal remains a human being possessed of common human dignity."

The State sought to strengthen its argument by pointing out the comparative convenience of juvenile whipping as a punishment: it satisfied criteria for punishment, while at the same time affording the courts a reasonable sentencing option; it was not too harsh for young offenders, but it enabled them to "get it over and done with" quickly. In this context, we were informed that parents often asked for this punishment to be imposed.

While there are obvious advantages to "quick" justice, society's greater concern must be the form such punishment takes. The solutions we adopt in dealing with young offenders have to be part of a greater context and must be consistent with the promotion of the values which are reflected in the Constitution. It cannot be reasonable and in keeping with these values to imply, through the punishments we impose, that the infliction of violence is an acceptable option in the solution of problems. In any event, this consideration falls far short of the justification required to entitle the State to override the prohibition against the infliction of cruel, inhuman or degrading punishment. Its implications for the dignity of the individual are also far too serious.

The State stressed the deterrent nature of juvenile whipping. Deterrence is, obviously, a legitimate objective which the State may pursue. We live in a crime-ridden society; the courts and other relevant organs of the State have a duty to make crime unattractive to those who are inclined to embark on that course. The concerns which the provision seeks to address are indeed pressing and they are substantial. But, as already stated, the means employed must be reasonable and demonstrably justifiable. No clear evidence has been

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Rh Ah, yet must fall on him the heavier change,

Which who knows not, his soul hath never known

The wandering sea that moans and mourns in man

The melancholy load and charge of song,

Voices rebellions, dismal wailing loss

The pæan of the long betrayal flung

Up from the sounding flood to sun and stars—

And souls like waves move there, each with its cry—

The sea of life; he felt from world-wide woe,

Vague breaking upon vague, the life-song rise,

Blind music, wandering o'er the face of things,

Heard in his heart, and heard creation through.

But when the treason was, that worked so sore,

And in himself he knew the doom begun,

And felt the blood of man, is dark to me;

Only he made him friends with night and storm,

The sad woods roved, and paced the passionate shore,

And ever on the desert's border hung,

Disturbed, distressful, watched by rising stars.

Deep in his breast the iron entered in,

Savage and sudden, thrust and stroke unseen,

And life went ebbing from his every wound.

Then by the stream that girds the world he sat,

Looking on night, and felt within him fear


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Rh advanced that juvenile whipping is a more effective deterrent than other available forms of punishment.

In 1960 the Advisory Council on the Treatment of Offenders reviewed the decision abolishing corporal punishment in the United Kingdom, which had been taken pursuant to the Cadogan Report of 1938. The Council pointed out that "[t]here is no evidence that corporal punishment is an especially effective deterrent either to those who have received it or to others." It therefore arrived at the unanimous conclusion that judicial corporal punishment should not be re-introduced. In S v Motsoesoana Page J, in an exhaustive analysis of the law in relation to corporal punishment, arrived at the conclusion that corporal punishment serves no useful deterrent function, on the contrary, "its effect is likely to be coarsening and degrading rather than rehabilitative." In his judgment he also referred to an article by Professor Kahn on Crime and Punishment 1910–1960:

"Even making the utmost allowances for extraneous factors such as changes in population and in the efficiency of the police force and prosecuting authorities, it seems reasonable to conclude that the deterrent effect of compulsory whipping is nowhere to be seen. If this is so, its retention can only be atributed to some spirit of retribution or revenge."

It may be relevant to observe that three of the applicants in this matter had previous convictions for which they had received strokes; one of them, Witbooi, had in fact received five strokes a mere five months before the present sentence. Some of the co-accused had a variety of previous convictions for which they had received sentences which included strokes. One of them, namely Thomas, had already received a total of sixteen strokes. The previous punishment has obviously failed to act as a sufficient deterrent in these cases.

I am, however, prepared to accept that there is some deterrent value in juvenile whippings. As Milne JP observed in S v Kumalo and Others it could be expected that:

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, squarish face, curly auburn wig, bushy grey eyebrows and moustache, and grizzly stubble―eyes that reminded one of Dampier the actor. He was a squatter of the old order―new chum, swagman, drover, shearer, super, pioneer, cocky, squatter, and finally bank victim. He had been through it all, and knew all about it.

He had been in Parliament, and wanted to go again; but the men mistrusted him as Thompson, M.P., though they swore by him as old Baldy Thompson the squatter. His hobby was politics, and his politics were badly boxed. When he wasn't cursing the banks and government he cursed the country. He cursed the labour leaders at intervals, and seemed to think that he could run the Unions better than they could. Also, he seemed to think that he could run Parliament better than any Premier. He was generally voted a hard case, which term is mostly used in a kindly sense out back.

He was always grumbling about the country. If a shearer or rouseabout was good at argument, and a bit of a politician, he hadn't to slave much at Thompson's shed, for Baldy would argue with him all day and pay for it.

324


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Rh "… the thought of a severe whipping, whether as a result of experience or only of an act of imagination, could well have deterred very many, although it is all too evident that very many have not thereby been deterred."

What has not been shown is that such deterrent value as might exist is sufficiently significant to enable the State to override a right entrenched in the Constitution. All indications are to the contrary. While juvenile whipping has a brutalising effect, it has not been shown that it has the capacity to deter more than other punishments would do. Moreover, I agree with the remarks of Fannin J in S v Kumalo and Others:

"Within comparatively recent times corporal punishment of quite horrifying severity were inflicted for a great number of offences, and I, for one do not believe that the general deterrent effect of such punishments justified the suffering and indignity which were inflicted upon those who were so punished. I am of the opinion that a whipping is a punishment of a particularly severe kind. It is brutal in its nature and constitutes a severe assault upon not only the person of the recipient but upon his dignity as a human being. The severity of the punishment depends, to a very large extent, upon the personality of the officer charged with the duty of inflicting it, and over that the court ordering the punishment can have little, if any, control."

Howie AJA, quite correctly in my view, warned against the idea that the accused should be sacrificed on the altar of deterrence. To this I would add that this is even more so when the court is dealing with a youthful offender.

If, as I have found, the deterrence value is so marginal that it does not justify the imposition of this special punishment, involving as it does the deliberate infliction of physical pain, one has to conclude that the sole reason for retaining it is to satisfy society's need for retribution. While retribution is, in itself, a legitimate element of punishment, it is not the only one; it should not be the overriding one. It cannot, on its own, justify the existence of

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12 Rise like a mist that blotteth out the stars.

Dark was the mind, the heart within was dark,

And all his soul was sunk in memory.

What then he was he knows whose heavy head

The passionless stupor of despair bows down

In solitary places that he loved!

So mute among the moveless stones he sat,

And hid his face within the sea's gray robe,

And heard obscure the roaring of the deep;

Till in the East the red and ragged moon

Across the hollow waters and the night

Struck on his eyes and he once more was man.

O, sharp the eternal pain began to gnaw!

Hoarse the incessant trampling of the surf

Beat up the wind; athwart the western stars,

Crag-like, hung storm, and all its heights were fire;

And midway of the waste, 'twixt tossing seas

And those dark pastures of the roving flame,

No life but his,—and his a life bereft,

Brooding, and tranced, and full of fantasy.

The black marsh and the mounded sand stood still;

Old willows whispered near; the beach-grass sighed,

In the low moonshine rustling its thin blades,


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 'I can't put on any more men,' he'd say to travellers were after 'stragglers.' 'I can't put on a lot of men to make big cheques when there's no money in the bank to pay 'em―and I've got all I can do to get tucker for the family. I shore nothing but burrs and grass-seed last season, and it didn't pay carriage. I'm just sending away a flock of sheep now, and I won't make threepence a head on 'em. I had twenty thousand in the bank season before last, and now I can't count on one. I'll have to roll up my swag and go on the track myself next.'

'All right, Baldy,' they'd say, 'git out your blooming swag and come along with us, old man; we'll stick to you and see you through.'

'I swear I'd show you round first,' he'd reply. 'Go up to the store and get what rations you want. You can camp in the huts to-night, and I'll see you in the morning.'

But most likely he'd find his way over after tea, and sit on his heels in the cool outside the hut, and argue with the swagmen about Unionism and politics. And he'd argue all night if he met his match.

The track by Baldy Thompson's was reckoned as a good tucker track, especially when a dissolution of Parliament was threatened. Then the guileless traveller would casually let Baldy know that he'd got his name on the electoral list, and show some interest in Baldy's political opinions, and oppose them at first, and finally agree with them and see a lot in them―be led round to Baldy's way of thinking, in fact; and ultimately depart, rejoicing, with a full nose-bag, and a quiet grin for his mate.


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Rh the punishment.

It needs to be stressed that it is in the interests of justice that crime should be punished. As pointed out by Schreiner JA in R v Karg:

"It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands."

However, punishment that is excessive serves neither the interests of justice nor those of society. According to Brennan J, punishment is excessive if it is unnecessary, and it is unnecessary "if there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted." In Gregg v Georgia, Stewart J, described the unnecessary and wanton infliction of pain as an aspect of excessiveness.

Finally, the perceived advantages or benefits of juvenile whipping must be weighed against the rights which the provision seeks to limit. Corporal punishment involves the intentional infliction of physical pain on a human being by another human being at the instigation of the State. This is the key feature distinguishing it from other punishments. The degree of pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The court merely directs the number of strokes to be imposed. The objective must be to penetrate the levels of tolerance to pain; the result must be a cringing fear, a terror of expectation before the whipping and acute distress which often draws involuntary screams during the infliction. There is no dignity in the act itself; the recipient might struggle against himself to maintain a semblance of dignified suffering or even unconcern; there is no dignity even in the person delivering the

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text: 1911 Encyclopædia Britannica/Apponyi, Albert


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Rh punishment. It is a practice which debases everyone involved in it.

I have already referred to the dictionary meaning of the words "cruel, inhuman or degrading." Conduct which fits any one of the adjectives is therefore hit by the prohibition. I however do not see any compelling reason to confine the conduct impugned to one adjective only. The deliberate infliction of pain with a cane on a tender part of the body as well as the institutionalised nature of the procedure involves an element of cruelty in the system that sanctions it. The activity is planned beforehand, it is deliberate. Whether the person administering the strokes has a cruel streak or not is beside the point. It could hardly be claimed, in a physical sense at least, that the act pains him more than his victim. The act is impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being. As pointed out in Jackson v Bishop:

"… irrespective of any precautionary conditions which may be imposed, [it] offends contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess…"

No compelling interest has been proved which can justify the practice. It has not been shown that there are no other punishments which are adequate to achieve the purposes for which it is imposed. Nor has it been shown to be a significantly effective deterrent. On the other hand, as observed by Page J in S v Motsoesoana, its effect is likely to be coarsening and degrading rather than rehabilitative. It is moreover also unnecessary. Many countries in the civilised world abolished it long ago; there are enough sentencing options in our justice system to conclude that whipping does not have to be resorted to. Thus, whether one looks at the adjectives disjunctively or regards the phrase as a "compendious expression of a norm", it is my view that at this time, so close to the dawn of the 21st century, juvenile whipping is cruel, it is inhuman and it is degrading. It cannot, moreover, be justified in terms of section 33(1) of the Constitution.

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 There are many camp-fire yarns about old Baldy Thompson.

One New Year the shearers―shearing stragglers―roused him in the dead of night and told him that the shed was on fire. He came out in his shirt and without his wig. He sacked them all there and then, but of course they went to work as usual next morning. There is something sad and pathetic about that old practical joke―as indeed there is with all bush jokes. There seems a quiet sort of sadness always running through out-back humour―whether alleged or otherwise.

There's the usual yarn about a jackeroo mistaking Thompson for a brother rouser, and asking him whether old Baldy was about anywhere, and Baldy said:

'Why, are you looking for a job?'

'Yes, do you think I stand any show? What sort of a boss is Baldy?'

'You'd tramp from here to Adelaide,' said Baldy, 'and north to the Gulf country, and would'nt find a worse. He's the meanest squatter in Australia. The damned old crawler! I grafted like a nigger for him for over fifty years'―Baldy was over sixty―'and now the old skunk won't even pay me the last two cheques he owes me―says the bank has got everything he had―that's an old cry of his, the damned old sneak; seems to expect me to go short to keep his wife and family and relations in comfort, and by God I've done it for the last thirty or forty years, and I might go on the track to-morrow worse off than the meanest old whaler that ever humped bluey. Don't you


text:
Page:While the Billy Boils, 1913.djvu/361

 have anything to do with Scabby Thompson, or you'll be sorry for it. Better tramp to hell than take a job from him.'

'Well, I think I'll move on. Would I stand any show for some tucker?'

'Him! He wouldn't give a dog a crust, and like as not he'd get you run in for trespass if he caught you camping on the run. But come along to the store and I'll give you enough tucker to carry you on.'

He patronised literature and arts, too, though in an awkward, furtive way. We remember how we once turned up at the station hard up and short of tucker, and how we entertained Baldy with some of his own ideas as ours―having been posted beforehand by our mate―and how he told us to get some rations and camp in the hut and see him in the morning.

And we saw him in the morning, had another yarn with him, agreed and sympathised with him some more, were convinced on one or two questions which we had failed to see at first, cursed things in chorus with him, and casually mentioned that we expected soon to get some work on a political paper.

And at last he went inside and brought out a sovereign.

'Wrap this in a piece of paper and put it in your pocket, and don't lose it,' he said.

But we learnt afterwards that the best way to get along with Baldy, and secure his good will, was to disagree with him on every possible point.


text:
Page:S v Williams and Others.djvu/34

Rh I accordingly find that the provisions of section 294 of the Act violate the provisions of sections 10 and 11(2) of the Constitution and that they cannot be saved by the operation of section 33(1) of the Constitution. Although the provision concerned is a law of general application, the limitation it imposes on the rights in question is, in the light of all the circumstances, not reasonable, not justifiable and it is furthermore not necessary. The provisions are therefore unconstitutional.

It becomes unnecessary to embark on an investigation to determine whether or not the provision in fact negates the essential content of any of the rights involved.

In the light of this finding, I do not find it necessary to debate the issue whether section 294 of the Act also infringes the other provisions of the Constitution, namely sections 8 and 30.

There may well be cases where juveniles have been sentenced in terms of section 294 of the Act but where the sentences have, for some reason or other, not yet been carried out. It follows from the finding of this Court that such sentences will have to be set aside by the courts having jurisdiction to do so and new sentences substituted.

The following order is accordingly made:

The following provisions of the Criminal Procedure Act No. 51 of 1977 (as amended) are inconsistent with the RepbulicRepublic [sic] of South Africa Constitution Act No. 200 of 1993 (as amended) and are, with effect from the date of this order, declared to be invalid and of no force and effect:

section 294 in its entirety; and the words "or a whipping" in section 290(2).

In terms of section 98(7) of the Constitution, it is ordered that with effect from the date of this order, no sentences imposed in terms of section 294 of the Criminal Procedure Act No. 51 of 1977, shall be carried out.

title: Page:S v Williams and Others.djvu/34


text:
Page:S v Williams and Others.djvu/35

Rh The matter of State v Williams (Review No. 53/94) is referred back to the Cape of Good Hope Provincial Division for an appropriate order.

P N Langa Judge of the Constitutional Court

Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala J, Mahomed J, Mokgoro J, O'Regan J and Sachs J all concur in the judgment of Langa J.

title: Page:S v Williams and Others.djvu/35


text:
Page:S v Williams and Others.djvu/36

 {|
 * -valign=top
 * CASE NUMBER:
 * CCT/20/94
 * -valign=top
 * COUNSEL ON BEHALF OF THE ACCUSED:
 * L J Bozalek P Hathorn
 * -valign=top
 * INSTRUCTED BY:
 * S P Kahanovitz Legal Resources Centre, Cape Town
 * -valign=top
 * COUNSEL FOR THE STATE:
 * J Slabbert
 * -valign=top
 * DATE OF HEARING:
 * 24 March 1995
 * -valign=top
 * DATE OF JUDGMENT:
 * 9 June 1995
 * }

title: Page:S v Williams and Others.djvu/36


text:
Page:While the Billy Boils, 1913.djvu/383

 THE AUSTRALIAN BIRTHDAY BOOK.

"The poetical quotations form a choice anthology of Australian verse…The book should have a special claim for Australian use."

"A dainty little volume…The selections have been carefully made, and the little book is a collection of poetic flowers of the soil as well as an autograph album."

DOT AND THE KANGAROO.

"'Dot and the Kangaroo' is without doubt one of the most charming books that could be put into the hands of a child. It is admirably illustrated by Frank P. Mahony, who seems to have entered thoroughly into the animal world of Australia. The story is altogether Australian.…It is told so simply, and yet so artistically, that even the 'grown-ups' amongst us must enjoy it."

HISTORY OF AUSTRALIAN BUSHRANGING.

"The bushrangers have long since left the stage of Australian history, but their evil deeds live after them, and are likely to do so for many years to come. Having collected all the published details relating to the career of the Tasmanian as well as the Australian gangs, Mr. White has reduced them to a very readable narrative, which may fairly be termed a history. In this shape it forms a valuable contribution to the general history of the country, especially as a picture of social life in the past."


text:
Page:Ruffhead - The Statutes at Large, 1763.djvu/64

18 it be certified by the Assise, that the Plaintiffs have sufficient Pasture, with Ingress and Egress, as before is said, let the other make their Profit of the residue, and go quit of that Assise.

 Ikewise it is provided and granted by the King, that from henceforth Usuries shall not run against any being within Age, from the time of the Death of his Ancestor (whose Heir he is) unto his lawful Age; so nevertheless, that the Payment of the principal Debt, with the Usury that was before the Death of his Ancestor (whose Heir he is) shall not remain.

F Heirs that be led way, and withholden, or married by their Parents, or by other, with Force against our Peace, thus it isConcerning Heirs who are taken away by force, or detained by their parents, or by others, it is thus [sic] provided, That whatsoever Layman be convict thereof, that he hath so withholden any Child, led away, or marriedthat he by such Means married any Child [sic], he shall yield to the Loser the Value of the Marriage; and for the Offence his Body shall be taken and imprisoned until he hath recompensed the Loser, if the Child be married; and further, until he hath satisfied the King for the Trespass. And this must be done of an Heir being within the Age of fourteen Years.  And touching an Heir being fourteen Years old, or above unto his full Age, if he marry without Licence of his Lord to defraud him of the Marriage, and his Lord offer him reasonable ⟨and convenient⟩ Marriage (without Disparagement) then his Lord shall hold his Land beyond the Term of his Age, that is to say, of One and twenty Years, so long that he may receive the double Value of the Marriage after the Estimation of lawful men, or after as it hath been offered beforeaccording to what he had been offered before for the said Marriage [sic], without fraud or Collusion, and after as it may be proved in the King's Court.  And as touching Lords, which marry those that they have in ward to Villains, or other, as Burgesses, where they be disparaged, if any such an Heir be within the Age of fourteen Years, and of such Age, that he cannot consent to Marriage, then, if his Friends complain of the same Lord, the Lord shall lose the Wardship unto the Age of the Heir; and all the Profit, that thereof shall be taken, shall be converted to the Use of the Heir being within Age, after the Disposition and Provision of his Friends, for the Shame done to him; but if he be fourteen Years, and above, so that he may consent, and do consent to such Marriage, no Pain shall follow.


text:
Response to We the People Petition on the Sea of Japan Naming Issue

Thank you for using the "We the People" platform to express your views on the usage of the term "Sea of Japan."

It is longstanding United States policy to refer to each sea or ocean by a single name. This policy applies to all seas, including those bordered by multiple countries that may each have their own names for such bodies of water. Concerning the body of water between the Japanese archipelago and the Korean peninsula, longstanding U.S. policy is to refer to it as the "Sea of Japan." We are aware the Republic of Korea refers to the body of water as the "East Sea," and the United States is not asking the Republic of Korea to change its nomenclature. U.S. usage of the "Sea of Japan" in no way implies an opinion regarding any issue related to sovereignty.

We understand that this naming issue is an important and sensitive one for both the Republic of Korea and Japan. I assure you the United States remains committed to our deep and indispensable alliances with the Republic of Korea and Japan, relationships based on shared values and mutual trust. We will continue to work with the Republic of Korea and Japan to address regional and global challenges together.

Kurt M. Campbell is Assistant Secretary of State for East Asian and Pacific Affairs

日本海命名問題に関する人民陳情に対する回答


text: Author talk:John Le Gay Brereton

title: Author talk:John Le Gay Brereton


text:
Page:EB1911 - Volume 02.djvu/239

 determines at a time between the date when such income became due.

The Apportionment Act 1870 extends to Scotland and Ireland. It has been followed in many of the British colonies (e.g. Ontario, Rev. Stats., 1897, c. 170, §§ 4-8; New Zealand, No. 4 of 1886; Tasmania, No. 8 of 1871; Barbados, No. 12 of 1891, §§ 9-12). Similar legislation has been adopted in many of the states of the American Union, where, as in England, rent was not, at common law, apportionable as to time (Kent, Comm. iii. 469-472).

An equitable apportionment, apart from statute law, arises where property is bequeathed on trust to pay the income to a tenant for life and the reversion to others, and the realization of the property in the form of a fund capable of producing income is postponed for the benefit of the estate. In such cases there is an ultimate apportionment between the persons entitled to the income and those entitled to the capital of the accumulations for the period of such postponement. The rule followed is this: the proceeds, when realized, are apportionable between capital and income by ascertaining the sum which, put out and accumulated at 3% per annum from the day of the testator’s death (with yearly rents and deducting income tax) would have produced at the day of receipt the sum actually received. The sum so ascertained should be treated as capital and the residue as income. (In re Earl of Chesterfield’s Trusts, 1883, 24 Ch.D. 643; In re Goodenough, 1895, 2 Ch. 537; Rowlls v. Bebb, 1900, 2 Ch. 107.)

APPORTIONMENT BILL, an act passed by the Congress of the United States after each decennial census to determine the number of members which each state shall send to the House of Representatives. The ratio of representation fixed by the original constitution was 1 to 30,000 of the free population, and the number of the members of the first House was 65. As the House would, at this ratio, have become unmanageably large, the ratio, which is first settled by Congress before apportionment, has been raised after each census, as will be seen from the accompanying table.

The same term is applied to the acts passed by the state legislatures for correcting and redistributing the representation of the counties. Such acts are usually passed at decennial intervals, more often after the federal census, but the dates may vary in different states. The state representatives are usually apportioned among the several counties according to population and not by geographical position. The electoral districts so formed are expected to be equal in proportion to the number of inhabitants; but this method has led to much abuse in the past, through the making of unequal districts for partisan purposes. (See .)

If a state has received an increase in the number of its representatives and its legislature does not pass an apportionment bill before the next congressional election, the votes of the whole state elect the additional members on a general ticket and they are called “congressmen-at-large.” APPRAISER (from Lat. appretiare, to value), one who sets a value upon property, real or personal. In England the business of an appraiser is usually combined with that of an auctioneer, while the word itself has given place, to a great extent, to that of “valuer.” (See the articles, and .)

In the United States appraiser is a term often used to describe a person specially appointed by a judicial or quasi-judicial authority to put a valuation on property, e.g. on the items of an inventory of the estate of a deceased person or on land taken for public purposes by the right of eminent domain. Appraisers of imported goods and boards of general appraisers have extensive functions in administering the customs laws of the United States. Merchant appraisers are sometimes appointed temporarily under the revenue laws to value where there is no resident appraiser without holding the office of appraiser (U.S. Rev. Stats. § 2609). APPREHENSION (Lat. ad, to; prehendere, to seize), in psychology, a term applied to a mode of consciousness in which nothing is affirmed or denied of the object in question, but the mind is merely aware of (“seizes”) it. “Judgment” (says Reid, ed. Hamilton, i. p. 414) “is an act of the mind specifically different from simple apprehension or the bare conception of a thing”; and again, “Simple apprehension or conception can neither be true nor false.” This distinction provides for the large class of mental acts in which we are simply aware of or “take in” a number of familiar objects, about which we in general make no judgment unless our attention is suddenly called by a new feature. Or again two alternatives may be apprehended without any resultant judgment as to their respective merits. Similarly G. F. Stout points out that while we have a very vivid idea of a character or an incident in a work of fiction, we can hardly be said in any real sense to have any belief or to make any judgment as to its existence or truth. With this mental state may be compared the purely aesthetic contemplation of music, wherein apart from, say, a false note, the faculty of judgment is for the time inoperative. To these examples may be added the fact that one can fully understand an argument in all its bearings without in any way judging its validity.

Without going into the question fully, it may be pointed out that the distinction between judgment and apprehension is relative. In every kind of thought there is judgment of some sort in a greater or less degree of prominence. Judgment and thought are in fact psychologically distinguishable merely as different, though correlative, activities of consciousness. Professor Stout further investigates the phenomena of apprehension, and comes to the conclusion that “it is possible to distinguish and identify a whole without apprehending any of its constituent details.” On the other hand, if the attention

title: Page:EB1911 - Volume 02.djvu/239


text: 1911 Encyclopædia Britannica/Apportionment


text:
Author:Bertha Marie Louise Lawson

Works

 * My Henry Lawson. (1943)

title: Author:Bertha Marie Louise Lawson


text: 1911 Encyclopædia Britannica/Apportionment Bill


text: Author talk:Bertha Marie Louise Lawson

title: Author talk:Bertha Marie Louise Lawson


text:
Page:While the Billy Boils, 1913.djvu/384

 TO-MORROW:

"Must be pronounced the first Australian play of literary worth."

"In this very clever dramatic sketch Mr. Brereton has given evidence of the possession of a true capacity for play-writing."

(London): "A remarkable and genuinely poetic play."

THE OLD BUSH SONGS.

"Rude and rugged these old bush songs are, but they carry in their vigorous lines the very impress of their origin and of their genuineness…Mr. Paterson has done his work like an artist."}}

COOKERY BOOK OF GOOD AND TRIED RECEIPTSRECIPES [sic].

"The young and inexperienced housekeeper need have no fear of failure provided she follows carefully the directions given, as the aim of this book has always been, not only to provide wholesome and economical receipesrecipes [sic] for capable housewives, but to help those who have not had the benefit of maternal guidance and home training. It is significant that many discerning women have made a habit of giving a copy of the 'Presbyterian Cookery Book' to every new bride of their acquaintance."


text:
Author:John Le Gay Brereton

Works

 * Perdita, A Sonnet Record (1896)
 * The Song of Brotherhood and Other Verses (1896)
 * Sweetheart Mine: Lyrics of Love and Friendship (1897)
 * Landlopers (1899)
 * Sea and Sky (1908)
 * Elizabethan Drama Notes and Studies (1909)
 * To-Morrow: A Dramatic Sketch of the Character and Environment of Robert Greene (1910)
 * Lust's Dominion (1914-misplaced; eventually published 1931)
 * The Burning Marl (1919)
 * Swags Up (1928)
 * Knocking Round (1930)
 * Henry Lawson, by His Mates (1931, editor, along with Henry's wife: Mrs. Bertha Lawson and daughter: Miss Bertha Lawson.)

Individual poems

 * "July" (1908)
 * "Buffalo Creek" (1913)
 * "The Robe of Grass" (1913)

title: Author:John Le Gay Brereton


text:
Author:Bertha Louisa Lawson

Works

 * Henry Lawson, by His Mates. (1931, editor, along with her mother: Bertha Marie Louise Lawson and John Le Gay Brereton.)

title: Author:Bertha Louisa Lawson


text:
User:RichardTaylorAPP

Welcome to my Wikisource page.

Chair, American Patriot Party.CC http://www.americanpatriotparty.cc

title: User:RichardTaylorAPP


text: Author talk:John Quick

title: Author talk:John Quick


text:
Author:John Quick

Works

 * History of Land Tenure in Victoria
 * The Annotated Constitution of the Australian Commonwealth (1901, with Robert Randolph Garran)

title: Author:John Quick


text:
Page:Historical Essays and Studies.djvu/393

Rh Victoria, was allotted to Pauli. Reluctance to compete with Ranke had led him to abandon his former work, and in the stronger currents of his own country he drifted from his English moorings. In the last year of his life he was thinking of a compendium embracing his thirty years' study of every part of the history of England in one or two volumes. His book on the nineteenth century suffers by comparison with the powerful mixture prepared by Mr. Cory for the patient Asiatic, and is not equal to the Spanish or Russian histories in the same collection.

Bernhardi's Russia carries us from the unrealities of scholastic history, from the complacency of satisfied philosophers and the adoration of Bonus Eventus, to the most penetrating and relentless censure of the thoughts and deeds of men. The author combines what was never combined before by a writer of history, long and intimate initiation in secrets of state, with military science and the knowledge of an original and profound economist. He represses the inclination to think that what is explained is excused, that all ideas are reasonable and all events opportune, and gives a prominence, suggesting early contact with the dissatisfied Heidelbergers, to the imponderable and unaccountable elements of human weakness and folly. His principal work is oddly diversified with episodes on the British constitution and on Adam Smith, besides a slight sketch of universal history; and it is time that his account of 1815, composed without the papers of Talleyrand and Metternich for the congress, or of Gneisenau and Grouchy for the campaign, should be rewritten. Bernhardi is the ablest of the German writers on Napoleon. The affinity that may be discovered between the first consul in the plenitude of his own ideas, before the peace of Amiens, and much that is peculiarly Prussian, does not disarm this admirer of Frederic and friend of Moltke, and he dispels even the illusion of the war in Champagne. He also gives literary expression to the judgment of the Prussian staff on Wellington. At Vienna the duke departed from the policy of Castlereagh, joined Talleyrand in pleading the Saxon cause, and


text:
Author:Robert Randolph Garran

Works

 * The Annotated Constitution of the Australian Commonwealth (1901, with Sir John Quick)

title: Author:Robert Randolph Garran


text:
Page:Historical Essays and Studies.djvu/394

382 assured Metternich that Prussia was likely to become the most dangerous Power in Europe. Talleyrand recorded the scene twenty years later with satisfaction tempered with surprise at so gross a mistake. This was the feeling which Wellington took with him to Belgium; and Gneisenau informed the officer sent to attend him that he was an excellent commander, but as false as the wiliest Hindoo. From that day until his administration in 1830, it was a standing maxim at the Berlin foreign office that the duke might always be counted upon to desert a friend.

Probably there is no considerable group less in harmony with our sentiments in approaching the study of history than that which is mainly represented by Sybel, Droysen, and Treitschke, with Mommsen and Gneist, Bernhardi and Duncker on the flank. Up to this moment it is the best found and the most energetic of all; and as there is no symptom of declining favour and authority, it is important to understand along what lines of reasoning men so eminent, so quick to inquire into every new thing, have adhered to maxims which it has cost the world much effort to reverse. The theory of the political historian is distinct from the plea of the partisan. The historian displays the laws governing human life: it is not his duty to expound a private view, or to explain, like the wise Castilian, how much better the universe would be contrived if he had been consulted in time. He attends to the ship's course, not to the passengers. The forces to be reckoned are those which, in the long-run, prevail. The historian justifies only that which is just by the judgment of experience. It is the heresy of history to choose a side that seems good in our eyes, to reject the appointed course and the dominion of law, in order to degrade the life of nations under the anarchy of casual and disconnected causes. Consistency in the powers that direct the world is the supreme acquisition of all German thought. It is not partiality, but renunciation of party feeling and personal preference, to hold that the world works well, that what lives permanently in the light and


text:
Author:Colin George Watt Davidson

Works

 * The Law of Landlord and Tenant in New South Wales. (1906, with John Harold Hammond)

title: Author:Colin George Watt Davidson


text: Author talk:Colin George Watt Davidson

title: Author talk:Colin George Watt Davidson


text: Page:Face to Face With the Mexicans.djvu/403


text: Page:Face to Face With the Mexicans.djvu/404


text: Author talk:John Harold Hammond

title: Author talk:John Harold Hammond


text:
Author:John Harold Hammond

Works

 * The Law of Landlord and Tenant in New South Wales. (1906, with Colin George Watt Davidson)

title: Author:John Harold Hammond


text: Popular Science Monthly/Volume 51/May 1897/Korean Interviews


text: User talk:204.83.240.102

title: User talk:204.83.240.102


text:
Page:Face to Face With the Mexicans.djvu/465

 Rh the base of the pyramid of Teotihuacan. The Pyramid of Asychis, the largest known of the Egyptians, has a base of 800 feet, and is, like that of Cholula, built of brick. The Cathedral of Strasbourg is eight feet, and the cross of St. Peter's at Rome forty-one feet, lower than the top of the Pyramid of Cheops.

"Pyramids exist throughout Mexico—in the forests of Papantla, at a short distance above the level of the sea; on the plains of Cholula

and of Teotihuacan, at an elevation which exceeds those of the passes of the Alps.

"In the most widely different nations and in climates the most different, man seems to have adopted the same style of construction, the same ornaments, the same customs, and to have placed himself under the government of the same political institutions."

A contemplation of this pyramid naturally led us to think of those other wondrous structures, Papantla, Misantla, and Mapilca, erected by the Totonacs, and situated between Jalapa and the Gulf coast; and also Xochicalco, Uxmal, Palenque, and others in other parts of the republic.


text:
Author:Daniel Stephen

Works

 * The Justices' Manual and Police Guide. (1905)

title: Author:Daniel Stephen


text: Popular Science Monthly/Volume 51/May 1897/Reversions in Modern Industrial Life II


text: Author talk:Octavius Charles Beale

title: Author talk:Octavius Charles Beale


text:
Author:Octavius Charles Beale

Works

 * Racial Decay: A Compilation of Evidence from World Sources. (1911)

title: Author:Octavius Charles Beale


text:
Page:While the Billy Boils, 1913.djvu/385

 THE ANNOTATED CONSTITUTION OF THE AUSTRALIAN COMMONWEALTH.

"A monument of industry."

THE LAW OF LANDLORD AND TENANT IN NEW SOUTH WALES.

"A valuable contribution to legal literature."

THE JUSTICES' MANUAL AND POLICE GUIDE.

, reviewing the second edition (1906): "Justices of the Peace and others concerned in the administration of the law will find the value of this admirably-arranged work…We had nothing but praise for the first edition, and the second edition is better than the first."

RACIAL DECAY:


text:
Page:History of England (Froude) Vol 2.djvu/481

1536.] she found so true to its creed, but spreading like contagion, and bringing to confusion the entire communion of the faithful (and this is no conjectural danger: it is even now come—it is among us; already, in England, to be a friend to the old customs of the Church is fraught with deadly peril)—finally, if in this matter there be every motive which ought to affect a prince who loves the name of Christ—then—then she does entreat you not to delay longer in hastening to deliverance of the Christian commonwealth, because it happens that the common cause is her cause—because Ferdinand of Spain was her father—because Isabella was her mother—because she is your own aunt—because her most ruthless enemies have never dared to hint that in word or deed she has been unworthy of her ancestors, or of the noble realm from which she sprang.

''She implores you, if God has given you strength to defy so powerful an enemy as the Turk, in that case, not to shrink from marching against a foe more malignant than the Turk, where the peril is nothing, and victory is sure. By the ties of blood, which are so close between you and her—by the honour of Spain, which is compromised—by the welfare of Christendom, which ought to be so dear to us all—she beseeches you, on her knees, that you will permit no mean object to divert you from so holy, so grand, so brilliant an enterprise, when you can vindicate at once the honour of your family and the glory of that realm which has made you famous by so many victories, and simultaneously you can shield


text: Popular Science Monthly/Volume 51/May 1897/The Bubonic Plague


text:
Page:History of England (Froude) Vol 2.djvu/482

462 the Christian commonwealth from the worst disasters which have menaced it for centuries.''

Here terminated this grand apostrophe, too exquisite a composition to be lost—too useful when hereafter it was to be thrown out as a firebrand into Europe, although Catherine, happily for herself, had passed away before her chivalrous knight flung down his cartel for her. A few more words were, however, in reserve for Henry.

'I have spoken of Cæsar,' he turned and said to him; 'I might have spoken of all Christian princes. Do you seriously think that the King of France will refuse obedience when the Pope bids him make peace with the Emperor, and undertake your chastisement? He will obey, doubt it not; and when you are trampled down under their feet there will be more joy in Christendom than if the Turks were driven from Constantinople. What will you do? What will become of your subjects when the ports of the Continent are closed, as closed they will be, against them and their commerce? How will they loathe you then! How will you be cast out among the curses of mankind! When you die you shall have no lawful burial, and what will happen to your soul I forbear to say. Man is against you; God is against you; the universe is against you. What can you look for but destruction?'

The hurricane had reached its height; it spent its fury in its last gusts. The note changed, the threats


text:
Page:History of England (Froude) Vol 2.djvu/483

1536.] ceased, and the beauty of humiliation and the promises of forgiveness to the penitent closed the volume.

Thus wrote an English subject to his sovereign, and professed afterwards to be overwhelmed with astonishment when he learnt that his behaviour was considered unbecoming. As Samuel to Saul, as Nathan to David, as Elijah to Ahab, so was Reginald Pole to Henry the Eighth, the immediate messenger of Heaven, making, however, one central and serious assumption; that whereas between Henry the Eighth and the Papacy there lay to be contended for, on the one side, liberty, light, and justice—on the other, tyranny, darkness, and iniquity, the Pope was God's champion, and Henry was the devil's. Facts answered otherwise. No pit opened its mouth to swallow the English bishops; no civil wars wrecked the prosperity of the country; no foreign power overwhelmed it; no dishonour touched its arms, except in the short interval when Catherine's daughter restored the authority of the Papacy, and Pole was Archbishop of Canterbury, and the last relic of the empire of the Plantagenets in France was lost for ever. He was pleased with his composition, however. He determined, in spite of Contarini, to send it. He expected the English council to believe him when he declared that he had 110 sinister intention, that he seriously imagined that a monarch who had taken the Pope by the beard and hurled him out of the kingdom, would be frightened by the lectures and threats of a petulant youth.

On the 27th of May the book was despatched to England by a messenger from Venice, and with it Pole


text:
Page:History of England (Froude) Vol 2.djvu/484

464 sent two letters, one to the King, the other to his friend Cuthbert Tunstall, the Bishop of Durham. The first contained little more than the credentials of the bearer. The letter to Tunstall, as well as a verbal message by which it was accompanied, was to the effect, that the book was long, too long for the King himself to read; he desired his friend to undertake, and the King to permit him to undertake, the first perusal. The contents were to be looked upon as a secret communication between himself and his Majesty; no eye had seen more than a small portion of what he had written, and that against his own will. The addresses and apostrophes inserted here and there, which might seem at first sight questionable, were dramatically introduced only to give effect to his argument. These statements seem somewhat adventurous when we think of the correspondence with Cardinal Contarini, and of Pole's assertion that he was writing less for the King than to undeceive the English people; nor do we readily acquiesce in the belief that the invocation to Charles was not intended for Charles's eyes, when the writer very soon after submitted it to those eyes, and devoted the energies of years to bring the Spaniards into England.

The messenger arrived early in June. Parliament had just met to receive the report of the Queen's crimes and execution, and the King, occupied


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Page:History of England (Froude) Vol 2.djvu/485

1536.] with other business, gladly complied with Pole's request, and left to others the examination of so bulky a volume. It was placed in the hands of Tunstall and Starkey. Whether Henry ever read it is not certain. If he saw it at all, it was at a later period. At once, if any hope or thought had existed of a return to communion with the Papacy, that hope was at an end. Written from Italy, the book was accepted as representing the feeling if not dictated by the instructions of the Ultra-Catholics; and in such a mood they could only be treated as enemies. So much of its character as was necessary was laid before Henry, and, on the 14th of June, within a day or two therefore of its receipt, a courier was despatched with replies both from Henry himself, from the Bishop of Durham, Starkey, and Cromwell. If Pole expected to be regarded as a formidable person his vanity was seriously mortified. The substance of what he had written was seen to be sufficiently venomous, but the writer himself was treated rather as foolish than as wicked, and by the King was regarded with some kind of pity. Henry wrote (it would seem briefly) commanding him on his allegiance, all excuses set apart, to return to England and explain himself.