OUR ENGLISH HERITAGE
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
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
"... 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
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.
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.
"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
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
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
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
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
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
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
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
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
"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
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. ]
We must take care not to elevate the common law too
highly, it being only virtuous to the extent that it
conforms to the law of God as expressed in Scripture.
The common law has inherited non-Christian notions
from antiquity such as that all land is held of the
Crown (cf. Psalm 24:1), and has at times struggled to
abandon Christian notions, as in its jettisoning of
the Biblical requirements of the evidence of two or
three witnesses (for an account of which see J.H.
Wigmore, "A Treatise on the Anglo-Saxon System of
Evidence in Trials at Common Law", 3rd Ed., para.
2. By E.C.S. Wade and O.G. Phillips,
"Constitutional Law", 6th Ed., p.58.
3. As quoted by Wade and Phillips, op.cit., 6th
Ed., p.60; 10th Ed., (by E.C.S. Wade, A.W. Bradley et
5. Ibid., 6th Ed., p.61; 10th Ed., p.94.
6. As translated by R. O'Sullivan, "The
Inheritance of the Common Law", 1950, p.82.
7. See J.N. Figgis, "The Divine Right of Kings",
1896, reprinted in 1970, p.6.
8. See P.W. Hogg, "Liability of the Crown in
Australia , New Zealand and the United Kingdon",
9. The consent is in practice for most purposes
expressed in the royal assent to legislation allowing
the bringing of proceedings, e.g. Claims against the
Government and Crown Suits Act., 1912 (N.S.W.). For
further discussion the reader is referred to
Commonwealth v. New South Wales (1923) 32
Commonwealth Law Reports (C.L.R.)200, 211.
10. See S.A. de Smith. "Judicial Review of
Administrative Action", 4th Ed., p.285.
11. Deuteronomy 31:10-11.
12. Quoted by O'Sullivan, op.cit., pp.83-4. Another
dimension of the same principle is the king's
inability to constitute courts by prerogative: see J.
Chitty, "A Treatise on the Law of the Prerogatives of
the Crown and the Relative Duties and Rights of the
Subjects", 1820, pp.75-78; cf. Ex parte Rev. George
King (1861) 2 Legge's Supreme Courts Cases (Legge)
1307 at p. 1323 per Wise J.
13. See RJ. Rushdoony, "The Institutes of Biblical
Law", 1973, Vol. 1, p.101.
14. A good illustration of the former limitations
of the scope of law is in the area of the family. For
a discussion, see O'Sullivan, op. cit., Chapter 2. It
is not surprising that, with a shift in the role of
the law, we now have an increasing number of measures
on domestic violence, child welfare, maintenance and
15. See RJ. Rushdoony, op. cit., pp.100-106.
16. Though the theory is that they merely discern
what the law has always been and apply it to the novel
situation; cf. per Barwick, C J. in Dugan v. Mirror
Newspapers (1978) 142 C.L.R. 583, 586, cotra Murphy J.
17. See R.D. Lumb, "The Constitutions of the
Australian States", 3rd. Ed., p.70n.
18. Wade and Phillips, op. cit., p.21.
19. Matthew 28:18; cf. Romans 13.1.
20. For this reason, the attempts of royalists and
papalists to adduce Scriptural proofs for their
respective causes, as discussed by Figgis, op. cit.,
pp. 18,48-50 and 69, were inconclusive. Scripture
deals with the rights and duties of governed and
governor under various forms of government. It refers,
for example to kings, emperors, judges, magistrates,
counsellors and administrators.
21. For an elementary account of English
conversion, see K.R. Cramp, W. Leonard and J.H. Smairl,
"A Story of the English People", N.S.W. Government
Printer, 1936, Chapter IV. The renowned historian of
English law, Sir William Holdsworth, records that
Christianity disappeared from England for a time
before the introduction referred to in the text: see
his "History of English Law", Vol. 2, p. 13. The claim
seems questionable, however, as it would not take
account of small-scale migration, such as the Frankish
wife of King Ethelbert, who had been given to him in
marriage, before the arrival of missionaries from
Rome , on condition that she be permitted to
practise Christianity. By way of comparison with the
position in Wales , see G.M. Trevelyan, "A
Shortened History of England", 1942, Penguin Ed. (rep.
22. See generally, Holdswonh, op. cit., Vol. 2
pp.21-5 & A.K.R. Kiralfy, "Potter's Historical
Introduction to English Law and its Institutions", 4th
Ed. pp.9-11, 174.
23. Holdsworth, op. cit., Vol. 2, p. 14; cf. F.W.
Maitland, "A Prologue to a History of English Law",
(1898) 14 Law Quarterly Review (L.Q.R.). 13.
24. Holdswonh, op. cit., Vol. 1, p.584ff.
25. The thirteenth century affords some good
examples of this accommodation. In the church clauses
of Magna Carta (conveniently reproduced by H.
Bettinson, "Documents of the Christian Church", 2nd
Ed., pp.231-2), King John appears to assert supremacy
by citing that he has "granted to God" that the Church
of England be free but he is careful to add that he
has secured the confirmation of his charter "by the
Lord Pope Innocent III". Again, taxation of
"spiritualities" was, according to the 15th Ed. (the
passage being abbreviated in the 17th Ed., are omitted
from later ones) of Sir Thomas Erskine May's "Treatise
of the Law, Principles, Procedures and Usages of
Parliament", p.7, on the basis of representation and
consent. Viewed against that background, of course,
the seating of bishops in the Church of England in the
House of Lords is not an exception to the separation
of Church and State but an expression of it. The
extent to which it is such an expression as distinct
from a maintenance of a tradition sourced in
Anglo-Saxon practice (as to which the reader may refer
to p.6 of the 13th Ed. of May, op. cit.) is open to
conjecture and further research.
26. 26 Henry VIII, c.l.
27. Op. cit., Vol. 8,p.403.
28. By Lord Blackburn, quoted by Holdsworth, Vol.
29. Op. cit., Vol. 1, p. 620; cf. Vol. 8, p.407.
30. Coronation Oaths Act 1688. As O'Sullivan, op.
cit., pp.96-97 refers to an ancient coronation oath of
St. Dunstan (c.909-88) containing promises to
Christian people in order that God may grant eternal
compassion, it may be debated whether the status of
Christianity as part of the law depends upon Henry
VIII's union of Church and State: cf. Holdsworth, op.
cit., Vol. 8, p.403, n.5.
31. Holdsworth, op. cit., Vol. 8, pp.407-410.
32. Ibid., p.408, n.6.
34. Refer to MJ. Detmold . "The Australian
Commonwealth ", 1985, Chapter 4.
35. To the four cases cited by Detmold , supra
(n.34), we may add State Government Insurance
Commission v. Trigwell (1978-79) 142 C.L.R. 617, 625.
36. Blackstone, 1 Commentaries (Comm.) 107.
37. Wade and Phillips, op. cit. (n.2), p.390 (6th
38. Many of whose opinions have been published in
D.P. O'Connell and A. RJordan, "Opinions on Imperial
Constitutional Law", 1971.
39. On the judiciary, see A.C. Castles, "An
Australian Legal History", 1982, pp.46 and 67ff. As
the Church, see Wylde v. Attorney General (1948) 78
C.L.R. 224, 257 per Lathan C J.
40. The passage is reproduced by Wise J. in Ex pane
Rev. George King (1861) 2 Legge 1307, 1323.
41. Cooper v Stuart (1889) 14 Appeal Cases (A.C.)
42. Delohery v. Permanent Trustee Co. of N.S.W.
(1904) 1 C.L.R. 283.
43. 9 George IV, c.83.
44. See A.C. Castles, "An Australian Legal
History", 1982, p.398.
45. For an example in South Australia, see State
Government Insurance Commission v.
Trigwell (1978-79) 142 C.L.R. 617, 625 per Gibbs
J., as he then was, giving the date
as 28th December, 1836 .
46. Murphy, J. in Dugan, supra (n.16), at 611.
47. R. v. Farrell (1831) 1 Legge 510; the precedent
was not, of course, binding on Murphy J.
48. See per Barwick C.J. in Trigwell, supra (n.35)
at 623, citing Mutual Life 8c Citizens Association v.
Evatt, (1968) 122 C.L.R., 556, 563.
49. (1978) 142C.L.R. 583.
50. The law in New South Wales has subsequently
been altered by an Act of Parliament: Felons (Civil
Proceedings) Act, 1981. The passage cited is taken
from pp.585-586 of the report.
51. Ex parte Rev. George King (1861) 2 Legge 1307,
1324 per Wise J. and per Dickinson C.J. at p.1313.
52. Wylde v. Attorney General (1948) 78 C.L.R. 224,
257 per Latham C.J.
53. For examples of livelihood cases see Ex parte
Rev. George King, supra (n.51); Baker v. Gough (1962)
80 Weekly Notes (W.N.) N.S.W. 1263. On property
matters, see Attorney General (N.S.W.) (ex rel.
McLeod) v. Grant (1976) 51 Australian Law Journal
Reports (A.L.J.R.) 10 and Presbyterian Church (New
South Wales) Property Trust v. Ryde Municipal Council
 2 New South Wales Law Reports (N.S.W.L.R.) 387.
54. For a Scottish example, see counsel's argument
in General Assembly of Free Church of Scotland v. Lord
Overtoun  A.C. 515; for an example of
ecclesiastical jurisdiction proper, see Sheppard v.
Bennet (1872) Law Reports (L.R.) 4 Privy Council
(P.C.) 371 at 404-11.
55. Per Rich J. in Wylde v. Attorney General (supra
n.52) at 282.
56. Ex parte Hay (1897) 13 W.N. (N.S.W.) 186.
57. Reference might be made to n.25 above.
58. See, for example, Church of the New Faith v.
The Commissioner of Pay-roll Tax ( Victoria )
(1982-83) 154 C.L.R. 120; Commissioner of Land Tax (N.S.W.)
v. Joyce (1974) 5 Australian Tax Reports (A.T.R.) 32.
59. (1874) 13 Supreme Court Reports (S.C.R.) (N.S.W.)
1, 61 per Hargrave J.
60. Taylor 's Case 1 Ventris (Vent.) 293; cf.
Crimes Act, 1900 (N.S.W.), s.574.
61. See Ex parte Rev. George King , supra (n.51)
per Dickinson C.J. (dissenting on other issues). For a
discussion of natural law, see Chapter 2 of Julius
Stone, "Human Law and Human Justice", 1965.
62. Holdsworth, op. cit., (n.21), Vol.8, p.416.
63. Re Pyke  Victoria Reports (V.R.) 788.
Interestingly, though, Gowans J. treated the gift as
an absolute one, not a purpose trust. Gifts to
non-theistic bodies have not so far, in Australia ,
been held to be charitable bequests, with the
attendant advantages thereof. See R. v. Jones 
South Australian State Reports (S.A.S.R.) 190.
64. Some support for this proposition may be
afforded by the practice in England, at a time not
long after the cut-off date for the reception of the
common law, to uphold as trusts for the advancement of
religion gifts to promote the Jewish religion: Straus
v. Goldsmid (1837) 8 Simons (Sim.) 614.
65. See the agreed propositions counsel cited at
n.12 on pp.408-409 of Vol.8 of Holdsworth, op. cit.,
(n.21); the observations of Richard O'Sullivan, op.
cit., (n.6) at pp.88-89 and the article by Professor
G. de Q. Walker, "Dicey's Dubious Dogma of
Parliamentary Sovereignty: A Recent Fray with Freedom
of Religion" (1985) A.LJ. 276.
66. For further discussion on this topic, the
reader is referred to the introductory comments in the
chapter on constitutional law. See Volume
1"Understanding Our Christian Heritage" "http://www.chr.org.au/VOL1/Volume%201%20chapter%204.html
67. A.V. Dicey, "Introduction to the Study of the
Law of the Constitution", 10th Ed., pp.62-63.
68. Wade and Phillips, op. cit. (n.2), 6th Ed.,
p.52; cf. 10th Ed., p.70.
69 For one treatment of the Christian's position,
see (1983) FACS Report, Vol. 2, No-4.
70. As to Magna Carta, see Richard O'Sullivan, op.
cit., (n.6) at p.97; Sir Ivor Jennings, "Magna Carta
and its Influence on the World Today", 1965, Ch. 4.
The 1297 successor of the charter is now confirmed in
s.6 of the Imperial Acts Application Act, 1969 in
New South Wales . As to the Commonwealth
Constitution, see per Murphy J.in McGraw-Hinds
(Australia) Ltd. v. Smith (1978-79) 144 C.L.R. 633,
670; cf. Sir Maurice Byers, "The Australian
Constitution and Responsible Government" (1985)
Australian Bar Review 1.