VOLUME I
Our English heritage necessarily encompasses much that many of us take for granted, including language, literature, culture and philosophy. For those of us not of English stock, however, such a heritage may be of questionable significance. Yet there are aspects of the heritage which inevitably have an appreciable significance for every citizen and resident of Australia. Chief among those is the system of law and government. It is the purpose of this article to demonstrate that, though not unerring(1), this system is animated and nourished by a Christian tradition.
We may take as our starling point the rule of law, which has been defined(2) as meaning that the exercise of powers of government shall be conditioned by law and that the subject shall not be exposed to the arbitrary will of the ruler. As expanded by the great constitutionalist Professor A.V. Dicey(3), it means "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government" so that "a man may be punished for a breach of the law, but he can be punished for nothing else". Secondly, it means "equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts"(4). It has, thirdly, the implication that the rules which in some countries form part of a constitutional code "are not the source but the consequence of the rights of individuals"(5). Each of these aspects of the rule of law will repay some further attention.
To speak of the supremacy of law is to deny to government supremacy over the law. As Henry of Bracton said(6), the King is under God and the law. With this accords the requirement of the Word of God, as set forth in Deuteronomy 17:18-19:
"And it shall be, when he [i.e. the king] sitteth upon the throne of his kingdom, that he shall write him a copy of this law in a book out of that which is before the priests the Levites: And it shall be with him, and he shall read therein all the days of his life: that he may learn to fear the Lord his God, to keep all the words of this law and these statutes, to do them."
As has been said, the rule of law excludes arbitrariness. This exclusion flows naturally from the subjection of government to law. Otherwise, it would be doctrine that the government, being above law, enjoyed exemption from liability; such a doctrine would necessarily place those who suffered at its hands beyond the law's protection. This exclusion of arbitrariness has a Biblical foundation, evident in Ezekiel 18:19-20:
"... doth not the son bear the iniquity of the father? When the son hath done that which is lawful and right, and hath kept all my statutes, and hath done them, he shall surely live. The soul that sinneth, it shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him."
Two principles emerge here, the principle that punishment shall be for sin, defined in I John 3:4 as a transgression of the law, and its corollary that punishment shall not be inflicted without personal guilt. Lest these principles be lightly esteemed, we need to remember that it was but a few hundred years ago, in an era in which the translation of the Bible that many of us are still accustomed to read was made, that it was commonly asserted that the king's power was incapable of legal limitation and that all law was a mere concession of his will(7). Now, to be sure, there is imperfection in the modern legal expression of the rule of law. Thus, the sovereign is not normally bound by statutes(8) and in theory cannot be sued in the courts without consent(9); again, an increasing amount of legislation invests government officials with wide discretionary powers. But, for all this, it has been recognized that relations between government and subject must be regulated by law, not whim. Even discretionary powers must have been lawfully conferred and their arbitrary or capricious exercise will afford the aggrieved subject a remedy. (l 0)
The principle of equality before the law, in turn, flows from the exclusion of arbitrariness. To deny to a ruler the prerogative of acting capriciously is to deny to him the power to subject to penalty a person or class of persons merely because he or it has incurred his displeasure. We see immediately that the rule of law is concerned with equal protection under law rather than with securing a uniformity of legal operation. People can and do suffer disabilities because of their status which are not common to all. We may think of disabilities brought about by infancy, lack of citizenship, or criminality. Such disabilities, however, do not constitute those suffering them outlaws, persons unprotected by law; they merely deny to those affected certain freedoms. Equal protection by law is enjoined by Scripture but equality of rights is not. Thus, in Leviticus 24:22. we read:
"Ye shall have one manner of law, as well for the stranger, as for one of your own country, for I am the LORD your God."
But in Deuteronomy 23:3. certain aliens, the Ammonites and Moabites, were excluded "even to their tenth generation" from the congregation.
In connection with the principle of equality before the law, reference was earlier made to the necessity that the law be administered in the ordinary law courts. Today, of course, we have a variety of specialist jurisdictions, limited by subject matter or the amount in issue, and supplemented by a plethora of administrative and quasi-judicial tribunals. Nevertheless, the law which is administered is, sometimes with regrettable and unbiblical(11)difficulty, ascertainable and the courts and tribunals are legally constituted. The following interchange between King James I and Sir Edward Coke, the Chief Justice, in the Star Chamber in 1616 exemplifies the ills which the doctrine is designed to avoid:
James: It is atheism and blasphemy to dispute what God can do. Good Christians content themselves with His Will revealed in His Word. So it is presumption and high contempt in a subject to dispute what a King can do or say, that a King cannot do this or that; but rest in that which is the King's Will revealed in his Law.
Coke: Your Majesty, the law is the golden measure to try the causes of his subjects, and which protects His Majesty in safety and peace. The King cannot take any case out of his Courts and give judgment upon it himself. The judgments are always given per curiam and the judges are sworn to execute justice according to the Law and Customs of England.
James: This means that I shall be under the law which it is treason to affirm.
Coke: Sir, Bracton saith: Quod rex non debet ease sub homine sed sub Deo et sub lege: That the King ought to be under no man but under God and the Law.
'His Majesty fell into that high indignation as the like was never known in him, looking and speaking fiercely, with bended fist offering to strike him, which the Lord Coke, perceiving, fell flat on all fower.' "(12)
Before leaving the rule of law, we must pay brief attention to the contrast, remarked upon by Dicey, between foreign systems of law, whereunder individual rights depend upon constitutional guarantees, and the English system, whereunder individual freedoms are a consequence of the rule of law. The principal reason why the common law recognized such freedoms as those pertaining to movement, assembly, speech and property, was that they involved no proscribed conduct. Whatever was not illegal was, by implication, of no concern to the law of the land. Roman law, by contrast, which is the law on which most of the continental legal systems are based, assigns to law a positive function of securing the health of the people(13). Increasingly today, we see the Roman example being followed, as the legislators, seeking salvation by regulation, control more and more of areas which were formerly regarded as beyond the reach of the common law of England(14). As they do so, the Biblical pattern(15) recedes and the drive for a Bill of Rights necessarily gains momentum as an emergency measure to check tyranny.
From a consideration of the rule of law it is appropriate to proceed to a consideration of the doctrine of the separation of powers. For, if it were possible that all power should vest in a single person or authority, the rule of law would entail no more than that the person or authority in whom was vested power to execute law should first have made it. The separation of powers is essentially threefold: the legislature, the executive and the judiciary. Theoretically, it prevents one organ of government from exercising or interfering with the functions of another, though in practice the distinctions are blurred by such things as Ministers of State sitting in Parliament and being responsible to it, Cabinet controlling the introduction of legislation, Parliament entrusting to the Crown authority to make delegated legislation, the roles of the legislature and the executive in the appointment and removal of judges, the devising by judges of new rules to meet novel situations(16) and, in the Australian States, the usual role of Chief Justice as Lieutenant Governor(17). It has been said that the value of the doctrine "lies in the emphasis placed upon these checks and balances which are essential to prevent an abuse of the enormous powers which are in the hands of rulers"(18). The three organs of government are recognized in Scripture as being vested in God. Thus, in Isaiah 33:22, we read: "For the LORD is our judge, the LORD is our lawgiver, the LORD is our king; he will save us". It is the case, however, that in God alone, with the Lord Jesus Christ, is all authority vested(19) so that He alone is equipped to exercise all functions of government, that of legislature ("our lawgiver"), executive ("our king") and judiciary ("our judge"). Concentration of these functions in one pair of hands tends to cause the heart of the one discharging them to be "lifted up above his brethren" in violation of the warning of Deuteronomy 17:20 . Scripture would not appear to be prescriptive of the form of government(20) but a system of checks and balances must reduce the risk of the State arrogating to itself an excess of power with God-denying pretensions (cf. Daniel 4:30 ). Under the English system of government, the executive is responsible to the legislature, which in turn is elected by the people; the laws it enacts are interpreted and applied with substantial independence by the judiciary but in the knowledge of a power of removal in exceptional and grave circumstances.
Of potentially even greater significance than the separation of powers, however, is another kind of separation, that of Church and State. A Biblical doctrine of the separation of Church and State recognizes that both institutions are ordained by God and that God has authorized their actions in certain spheres (cf. I Samuel 13:8-14). Both institutions are, however, accountable to God and it follows that the Lord's command (Matthew 22:21 ) to render unto Caesar the things that are Caesar's conferred no authority on Caesar to define the things pertaining to himself. As will be noted presently, the doctrine of the separation of Church and State has held immense sway in days gone by. The constant accretion of power to the State may well make an appreciation of the origin and implications of the doctrine vital knowledge for Christian citizens.
An understanding of the subject involves a consideration of history. Although Christianity had come to England during the Roman period of its history, it was virtually obliterated(21) from that country by the conquering Angles, Saxons and Jutes, remaining absent until its reintroduction in the north by Celtic missionaries and in the South by missionaries from Rome in the latter part of the sixth century. The subsequent effect of Christianity on Anglo-Saxon laws was far-reaching, tending not only to fill up the gaps in the customary law but to introduce innovations, notably the will and a documentary form of land conveyance. At a time when formal learning was uncommon, it was natural for the cleric to act as lawyer and it is often difficult to identify an assembly as being either a synod or a Witan, the last term being the name given to the council of wise men that came in time to assist the King and is a forerunner of the modern legislature(22).
The harmony between Church and State was to give way, after the Norman Conquest, to a bitter struggle for supremacy. The Anglo-Saxon period was but a prologue to the history of English law, such great changes being made, particularly in the twelfth and thirteenth centuries, that it has been said that the law came to rest on "almost entirely new and different foundations"(23). Since the Synod of Whitby (A.D. 664), the Church, for political purposes, had gradually come to mean the Roman Catholic Church and with its ascendancy there came a system of ecclesiastical courts administering canon law, a species of law with both Roman and Christian concepts. The canon law recognized the Pope as supreme legislator and judge, at least in the Church. But the Sate was by the twelfth century growing precociously and the King's courts, administering a different species of law, the common law as modified by early statutes, could not long co-exist with the ecclesiastical ones without disputes as to their respective authorities. The history of the conflict may be read elsewhere(24); suffice it to note here that the royal courts, aided by their writs of prohibition with which they restricted the ecclesiastical jurisdiction, and a series of statutes of the fourteenth century restricting resort to Rome in litigation accommodated the requirements of the State, the Church saving face by a system of dispensations from the canon law, which continued to be highly significant, particularly in matters affecting clergymen (over whom the jurisdiction was substantial) and wills (with respect to which it was exclusive). The mutual accommodation thus reached marked the thing nearest in English experience to a separation of Church and State, each dealing with a particular sphere of responsibility and neither explicitly recognizing the other as supreme(25). All that was to change, of course, in the reign of Henry VIII, whose notorious break with Rome and declaration of himself as "the only supreme Head in earth of the Church of England"(26), established Christianity, and, as Holdsworth puts it(27), particularly that variety of Christianity taught by the Anglican Church, as the official State religion.
So far as subsequent history is concerned, it is not so much the relationship between Church and State, told in terms of the struggles between Catholics and Protestants, and the eventual legislative toleration for purposes other than succession to the throne of non-conformists, as the relationship between religion and the law that must occupy us in our assessment of our English heritage.
The union of Church and State under Henry VIII did not mark the end of the ecclesiastical courts. The law that they administered retained its content, so far as the new arrangements would permit, but, as was later to be judicially recognized(28), its character was no longer that of a foreign law but a special part of the general law of England. It was, however, a species of law that was destined to be of less frequent application than previously. By successive Acts of Parliament, ecclesiastical courts were deprived of their power to impose capital punishment and the common law courts were given power to punish certain offences, sometimes to the exclusion of ecclesiastical courts, which had formerly been within the sole cognizance of the latter, witchcraft, unnatural offences, bigamy, perjury, defamation, brawling in church and incest being examples drawn from a period in excess of three centuries by the great legal historian, Sir William Holdsworth. This state of affairs did not, however, in itself reduce the impact of Henry VIII's action on the status of Christianity. Rather, the common law courts stepped into the breach, presuming to punish scandals of Christianity and blasphemies. From 1688(30) the law has required that, prior to coronation, a monarch promise, amongst other things, to maintain, to the utmost of his power, the laws of God and the true profession of the Gospel. Amongst those affirming that Christianity is part of the law of England were the eighteenth century Chief Justice of the court of King's Bench and eminent legal historian, Sir Matthew Hale, and the great professor, Sir William Blackstone, whose celebrated Commentaries on the Laws of England first appeared in 1765. The cases are elsewhere collected(31). The rationale was stated by one Chief Justice in these words:
"Christianity is parcel of the common law of England, and therefore to be protected by it; now whatever strikes at the very root of Christianity, tends manifestly to the dissolution of civil government..."(31)
In England, the tide of subsequent judicial decisions was to erode this commendable beachhead(33) but our thesis shall be that such decisions form no part of our English heritage. Before developing that matter, however, we must now examine the means by which we acquired our inheritance, as distinct from its content.
Modern revisionists(34) notwithstanding, it has been firmly settled(35) that, as a matter of law, New South Wales was a settled and not a conquered colony. In terms of our inheritance, the consequences were enormous. First, it had been laid down by Blackstone(36) that in such a case the settlers brought with them so much of the law of England as was applicable to the condition of the new colony. Secondly, the power to make new laws for the colony was vested in the British Parliament. The Crown could not legislate by prerogative with respect to a settled colony in the way that it was lawfully able to do with respect to a conquered one(37).
Had the story stopped there, the Australian States, as successors of the former colonies, would have reaped a substantial reward, though not one as rich as they were ultimately destined to inherit. The denial to the Crown of the right to make laws by prerogative together with the review of administrative action maintained by the Colonial Office and British Law officers(38) would have secured in large measure the rule of law. There having been no legislature or judiciary in the earliest days, there would have been little scope for the separation of powers and, the Church of England having initially enjoyed establishment by virtue both of recognition of its doctrine as the religion of State and the payment from State funds of its clergy, there would have been a less than complete separation of Church and State, although the significance of Christianity in the law would have been accepted(39). That the story did not stop there, however, is revealed by the course of legal history. Blackstone had said (40) that settling colonists "carry with them only so much of the English law as is applicable to their own situation and the conditions of an infant colony" and that the "artificial refinements and distinctions incident to the property of a great and commercial people... are neither necessary nor convenient for them and therefore are not in force". But what was to happen if the colony should prosper and its people realize a potential to become great and commercial? The answer was supplied by the Privy Council in 1889(41), to the effect that rules which had lain dormant will be attracted to a colony as it develops, and confirmed by the High Court in 1904(42).
But the attraction to a colony of rules that had lain dormant did not mean that there would also be attracted to it, or to its successor polities, such as, in the case of the Australian colonies, the States, rules which, though pronounced by later English judges to form part of the common law of England, formed no part thereof at the time of reception of common law.
In accordance with the doctrine we have been discussing, common law applicable to a colony is the law received at settlement, brought into the colony by the first settlers. In New South Wales, the First Fleet landed in 1788 and this was initially the critical year. But the cut-off date for reception of laws could always have been altered by the Imperial Parliament and did just that in 1828 when it enacted the Australian Courts Act(43), substituting a cut-off date of 25th July, 1828. The statute applied to New South Wales and Tasmania, then known as Van Diemen's Land , and was later applied to Queensland and Victoria(44). In the remaining States, South Australia and Western Australia, the situation fell to be determined according to the rules laid down by Blackstone, the date of settlement being the dates when those States, as colonies, were settled(45).
It is universally accepted that the dates mentioned in the preceding paragraph introduced some fixity so far as concerned the reception of British statutes. British statutes made after those dates were regarded as inapplicable, except in the comparatively rare cases where the Imperial Parliament expressly or by necessary intendment made them applicable. What is not commonly appreciated, however, is that exactly the same principles applied to the common law of England . That proposition has been denied by one justice of the High Court(46) but the denial is in flat contradiction of precedent(47) to the effect that the cut-off date prescribed by the Australian Courts Act applies to common law as well as to statute law.
As will become apparent presently, that result does not stultify the common law which may be applied (and even declared where authority is scarce(48)) in new situations. There is, then, no disadvantage in having a cut-off date. There is, however, a tremendous advantage as it preserves the common law from the degenerative influences of modernism and relativism. By way of illustration we may refer to the High Court's decision in Dugan v. Mirror Newspapers Ltd(49). A notorious criminal was there seeking to bring a defamation action against the publisher of a daily newspaper and had been met by the defence, which all but one of the High Court justices was to uphold, that a person convicted of a capital offence could not maintain an action for a civil wrong. Sir Garfield Barwick, then Chief Justice, first described the sentence being served by the criminal as commutation of his death sentence and then expressed his opinion, which was in line with that of the majority of the Court, thus:
"The sole question raised on behalf of the applicant is whether the law of England as it stood in 1788 and in 1828 disabled a prisoner serving such a sentence as I have firstly described suing for a wrong claimed to have been done to him and became part of the law of the colony of New South Wales at those times. It was faintly suggested at one stage of the argument that, even if that law then became operative in the colony, the Court should now decide that such a law is inappropriate to the conditions of today. The Court can, of course, decide what the common law always has been: and, if earlier judicial decision is not to that effect, overrule or depart from such a decision: and the Court can, as it were, extend the principles of the common law to cover situations not previously encountered, or not as yet the subject of binding precedent. If the court decides that the common law of England, properly understood, did deny a prisoner in the situation of the applicant the right to sue during the currency of the sentence and that the law was introduced into and became part of the law of the colony, there is no authority in the Court to change that law as inappropriate in the opinion of the Court to more recent times during which capital felony remained. If that were a proper conclusion (a matter on which I express no opinion), it is clearly a question for the legislature whether a change should be made in the law: such a change cannot properly be effected by the Court".(50)
Thus it has come to pass that, by the grace of God, we have inherited, in all its richness, a body of English common law capable of unrivalled adaptation but preserved from those developments which would be regarded as degenerative by those who cherish a faith which was more widely esteemed at the point determined for reception of that body of law than it would appear to be today. In terms of the rule of law, this has meant that the growth of the judicial system in this country has produced new possibilities for its application. In terms of the separation of powers, all that was needed for the application of the doctrine, practically dormant theretofore, was the development, which we have seen, of the organs of legislative and judicial government with a consequent curtailment of the role of the executive. In terms of a separation of Church and State and the relationship between Christianity and the law, however, there has been some divergence, to which we must now turn, from the English experience.
It will be recalled that the genesis of the separation of Church and State had been in a conflict for jurisdiction between the canon or ecclesiastical law and the common law and that a system of mutual accommodation had developed in England before the assumption by Henry VIII of headship on earth of the Church and the assent by his heirs and successors to legislation curtailng the ecclesiastical jurisdiction. Now, in the Australian colonies, the course of history has been rather different. The fact that the colonies were open equally to persons of different religious faiths was held in 1861 to have precluded the possibility of ecclesiastical law forming part of the received law of the colony and the absence of the peculiarly statutory system of courts to administer it had rendered it incapable of operation in any event(51). The withdrawal of State aid to the Church of England the following year reduced that denomination to the same basis as other denominations of the Christian religion. It became a voluntary association, bound by the common law to adhere to its own constitution or rules, both of faith and procedure(52). The courts will restrain a departure from such rules where a man's livelihood is at stake and will lend their assistance in order to resolve disputes as to property(53)without shrinking, if necessary, from delving into quite complex theology(54). But "abstract questions involving religious dogma, and resulting in no civil consequences, do not justify the interposition of a civil court"(55) (If a church sets up its own system of courts to administer its internal law, those courts stand wholly outside the State's legal system(56), so far as concerns appeal or review unless some right cognizable by the State is affected. Judicial time is also spent in the interpretation of taxing statutes which, though not the creature of the common law, are, in their common exemptions of churches and religious bodies, reflective and expressive of the inherited separation of church and State(57) and, where it is necessary to a proper construction of such a statute, the courts will receive evidence of matters of faith(58). The very fact that evidence is required, however, strengthens the separation: the private opinions of the judge, or his conceptions of the beliefs of others are excluded from consideration.
As in England there has been judicial recognition in Australia that Christianity is part of the law of the land. Thus in Ex parte Thackeray(59) it was said that the law of God is part of the law of the colony of New South Wales . Further, the continued existence of blasphemy, circumscribed though it be, as a criminal offence is difficult to explain in terms of the preservation of order unless the law of God be the foundation of that order. It has been explained(60) as a twin offence against religion and the State but, remove the religion, and the rationale for its punishment by the State falters. Unlike the position in England, however, there is no room for arguing that it is the Church of England which is the interpreter of God's law because, as we have seen, that Church has no established status in this country. Indeed, as we shall see in the next article, there is now a constitutional provision against the establishment of any religion by the Commonwealth of Australia. Nor is there scope for application of the refinements of ecclesiastical law. Not only has the judicial system for the administration of that law been wholly absent from this country but the courts have pointed out that the ecclesiastical jurisdiction, having had a statutory basis in England, could form no part of any natural law which, on one jurisprudential view, would have characterized the local system of justice61. The other striking divergence from English experience in this area has been achieved by the developmental arrest of the common law. In England, it has come to be held that "the law now draws no distinction between the propagation of Christian, nonChristian, or antiChristian opinions"(62). But that is a twentieth century development from which the arrest in the development of the common law in this country has thus far spared us. The effect of the doctrine concerning the relationship between law and religion has probably been to provide a context in which the judicial technique has operated. It has probably assisted in the formulation of public policy, a determinant of the willingness of the courts to lend their assistance to a cause and it has probably also had its subconscious effect on the presuppositions and attitudes of the judges. It does not appear to have been overtly relied upon in the resolution of any reported case and it has not been used to frustrate the making of gifts to nonchristian organizations, the Supreme Court of Victoria having upheld a gift to the Rationalist Association of Australia Ltd., in 1974(63). The formulation that has been used in New South Wales having been in favour of "the law of God", it is probable that the principal tenets of the Judaeo-Christian religions, rather than just the Christian religion, would be preserved from interference, so far as possible(64).
The qualification to the last proposition, expressed in the words "so far as possible", has been made advisedly, however, because the common law is susceptible to statutory modification and it has come to be accepted, though not without criticism(65), that the propriety of legislation enacted by Parliament is unexaminable by the courts, except where it transgresses an express or implied requirement of any constitution under which that Parliament operates(66). Even so, however, much of society remains unregulated by statute law and, even where it is regulated, scope can, it is submitted, be found for the doctrine that the law of God is part of the law of the land as a rule of statutory interpretation. Thus Professor A.V. Dicey, to whose work we referred at the outset of our consideration of the rule of law, and who did so much to promote the doctrine of parliamentary sovereignty, was of opinion "that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality"(67). Indeed, the very Judaeo-Christian background against which they operate imposes political limitations on the lawmakers such that it is sometimes unthinkable or inexpedient for them to violate the law of God(68). Where violation does occur, of course, the primacy which the doctrine of parliamentary supremacy assigns to enacted law is only productive of a result in the law-order in which the lawmaker operates: the subject of that law-order must necessarily resolve the conflict individually. In doing so, he gives effect to his own faith, whether that faith be in humanism and utility, the teachings or directives of a church or the dictates of some venerated scripture(69). These are matters for which, however, he necessarily looks beyond the English heritage with which we are here occupied.
It remains to notice that the English heritage which we have been considering finds expression from time to time in English enactments which have legal force in this country. Some, like Magna Carta of 1215, are very ancient. Others, like the statute which conferred upon the federating colonies the Commonwealth Constitution, are comparatively recent. Both have been recognized to have implications, for example, for the rule of law(70). In Australia, the very system of government which we call Westminster rests on English foundations, the statutes authorizing the State and Commonwealth Constitutions. It is to these, and especially the Commonwealth Constitution, that we must now turn but the point of importance at this stage is that they form a special part of our English heritage.
[Mr. Booth is concerned to authenticate his propositions by reference to legal and Biblical materials. Abbreviations according with legal usage are employed for sake of space: the principal ones are, however, given in full at least once, generally on their first occurrence, the others being readily accessible through law libraries, to which the reader would probably have to resort in order to locate most of them. The law is Stated as at 31st October, 1986 ; the theology, if it be correct, is timeless. ]