The Historical Roots of the Australian Constitution


40 Historians' History of the World, The Times, London, 1907. XXI pp. 331-42. 41 Commentary on the Laws of England [1765], Univ. Chicago, 1979 rep., I pp. 35f, 63f & 73. 42 King Alfred: Dome-book 49:8f. 43 Institutes, W. Clarke, London, ed. 1817, II, Proeme.


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Also Blackstone noted44 the "Great Charter of liberties…contained very few new grants; but, as Sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England…. The Great Charter is directed to be allowed as the Common Law. All judgments contrary to it, are declared void….

"Magna Carta…confirmed many liberties…and redressed many grievances…. Care was also taken therein to protect the subject against other oppressions then frequently arising from unreasonable amercements, from illegal distresses…and from the tyrannical abuse of the prerogative of purveyance…. It established the testamentary power of the subject over his personal estate…. It laid down the law of dower…. It enjoined an uniformity of weights and measures….

"It fixed…the trial of issues home to the very doors of the freeholders…. It protected every individual of the nation in the free enjoyment of his life, his liberty, and his property — unless declared to be forfeited by the judgment of his peers or the law of the land." The great lawyer Bracton declared45 in 1268 that "the king himself ought…to be…subject to God and the Law. For the Law makes the king" — Lex rex. Two-and-ahalf centuries later, that great Jurist John Calvin would clarify that not just both kingdoms and republics but also churches and societies are subject to and never above the Moral Law of God.46 A hundred years thereafter, the famous Westminster Assembly Commissioner Samuel Rutherford would insist that no government is above the Law — because "the Law is king": Lex rex!47

Under the 1558-1603 Queen Elizabeth I, it was decided in the famous Bonham's case48 that the Common Law could invalidate even Acts of Parliament. Indeed, the next monarch of Britain (the 1603-25 King James I) — was frequently resisted in the name of God and the Common Law by none other than Lord Chief Justice Coke himself.

Coke's contemporary Archbishop Ussher put it eloquently in his 1615 Irish Articles:49 "The supreme government of all estates…doth of right appertain to the king's highness…. We give unto him…that prerogative only which we see to have been always given unto all godly princes in Holy Scripture by God Himself…. The laws of the realm may punish Christian men with death for heinous and grievous offences. It is lawful for Christian men, at the commandments of the magistrate, to bear arms and to serve in just wars."

Ussher was invited by Parliament to be a delegate at the Westminster Assembly itself. It is his Irish Articles that form the basis of the Westminster Confession of Faith


44 Op. cit., I pp. 123f & IV pp. 416f. 45 H. Bracton: On the Laws and Customs of England f 5b (as cited in E.S. Corwin's The 'Higher Law' Background of American Constitutional Law, 42 Harvard Law Review, 1928-29, pp. 149 & 265). 46 See esp. Calvin's Harmony of the Pentateuch I-IV and his Institutes of the Christian Religion I-II. Eerdmans eds., 1948f. 47 S. Rutherford's Lex Rex [1644], in The Presbyterian Armoury, 1843. 48 8 Coke's Reports 1070 118a, 77 ER 638 & 652. 49 Arts. 54-80.


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of 1643f. Significantly, the Westminster Confession itself upholds God's Moral Law for all mankind; condemns publishing opinions contrary to the light of nature or to the known principles of Christianity; bans public sabbath desecration; requires taking lawful oaths; approves of Christians becoming magistrates; admonishes such to encourage those who are good, and to punish evil-doers; defines lawful marriages; and condemns communism and the weakening of private property.50

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