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The King’s Two Bodies

The Sovereign is at the very centre of our constitutional system. Those great Commonwealth constitutional authorities, the Canadian Dr. Eugene Forsey and the Australian Dr.H.V. Evatt, long ago conclusively demonstrated the important and crucial role of the Sovereign’s representative as a constitutional guardian. This is but one aspect of the monarchy.
 
The organizing principle of government in Australia, and in the other fifteen Commonwealth Realms, is monarchical.  As in Canada, so in Australia, its pervasive influence has moulded and influenced her courts, her laws, her parliaments, her executives at both levels of government, state or provincial, and federal, her armed forces, her diplomacy and her public or civil services. Sir Robert Menzies put it succinctly: “the Crown remains the centre of our democracy.” 

The Sovereign is at one and the same time both a natural person, as well as being the office itself. This might have had its roots in classical antiquity.  This is expressed in the ancient maxims Dignitas non moritur, or Le Roi ne meurt jamais, and in the exclamation on the demise of the Crown, Le Roi est mort. Vive Le Roi!  (The King is Dead. Long Live The King!)  The consequence is that immediately on a demise of the Crown, in the twinkling of an eye, the successor becomes the Sovereign, and the Crown continues without any interregnum.

So, under our ancient law, the Sovereign  has not one, but two bodies. The Sovereign has both a body natural and a body politic. We understand something of this in other places. There is a minister for this or that, and the office continues whoever fills it. There is a bishop of such and such, and the bishopric continues after the incumbent goes. It is even more so with the Sovereign, who will reign for life except in the most exceptional circumstances.  The Sovereign is both a natural person, but he or she is also the office. An important point is that there cannot be a break, there cannot be an interregnum: the clearest example is in the reign of Charles II beginning immediately after the death of Charles1.  

An interregnum in other ages would have been far too dangerous. It could have led to doubt, to uncertainty and to instability on a demise of the Crown. It might even have led to insurrection and civil war. So the succession has to be immediate, and for that, the successor has to be known, either presumptive or apparent. Accordingly, the acclamation on the demise of the Crown is: “The King is Dead . Long Live the King!”

The doctrine of the King’s two bodies is an ancient principle, well expressed in Calvin’s Case in 1608:

“For the King has in him two Bodies, viz., a Body natural and a Body politic. His body natural…is a Body mortal, subject to all Infirmities that come by Nature or Accident, to the imbecility of infancy or old Age, and to the like defects that happen to the natural Bodies of other People.
 
“But his body politic is a Body that cannot be seen or handled , consisting of Policy and Government, and constituted for the Direction of the People and the Management of the publicWeal, and this body is utterly devoid of Infancy, and Old Age, and the other Defects and Imbecilitities, which the Natural Body is subject to, and for this Cause, what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in his natural Body”. 

This is central to our constitutional law. It is perhaps more easily understood today if we refer to the King’s body politic as the Crown. 

We find this usage in the Preamble to the Commonwealth of Australia Constitution Act, 1900 (Imp.). This was the act of the Imperial or British Parliament which formally constituted the Commonwealth of Australia.   The Preamble recites that:

“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:” ( Note, incidentally, that the Crown here is  a description of the then indivisible Imperial Crown, which has since divided into the separate Crowns of Canada, Australia , New Zealand , the United Kingdom of Great Britian and Northern Ireland, and the other Realms.)

The use of the word, the Crown, to describe the Sovereign’s body politic was, as Maitland says, of relatively recent use at the time of Federation .   While the word “Crown” is used in the Preamble, the Constitution itself uses the word the “Queen”.  But the many references to the “Queen”, while referring at that time to Queen Victoria, also refer to her body politic. This is confirmed by the terms of section 2 of the Constitution Act  which provides that the provisions of the Act “referring to the Queen shall extend to Her Majesty's heirs and successors….” 

Once it is understood that the references in the Constitution to the Queen include a reference to the King or Queen in his or her body politic, that is the Crown, and that this is now the Australian Crown, much of the mischief which has been made about that document evaporates. For example, if we take the key sections, sections 2 and section 61, and  read them using more current terms and  in the light of the latest constitutional developments, the intention becomes  crystal clear:

2.  A Governor-General appointed by the Sovereign shall represent the Australian Crown  in the Commonwealth….

61. The executive power of the Commonwealth is vested in the Australian Crown, and exercisable by the Governor-General. The executive power extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

(This is not a suggestion for any constitutional amendment. It would be foolish to amend a constitution to take into account transient fashions and partisan argument in a referendum campaign. This is merely an explanation of the meaning of those sections.)

The conclusion is that the many references in the Constitution to The Queen are references to the Sovereign in his or her body politic, which today we would refer to as the Australian Crown. It is important to understand that the Crown is more than the office of the Governor- General and the offices of the Governors, or indeed the sum of them. It is the ancient but evolved Leviathan which permeates not only the Constitution in the narrow sense –the  federal Constitution, but also those of the states. And it extends to the  broader constitutional system under which we are governed.

The need to understand that the governor-general is the representative of The Queen’s body politic, that is the Crown, is not limited to Australia.

As long ago as 1945, the private secretary to the Canadian Governor-General, Shuldham Redfern, observed: “It is often said the Governor-General is the personal representative of the King. It would be more correct to say that he is the official representative of the Crown, for there is a difference between representing a person and representing an office held by a person.” 

This is conclusion is understandable, given the phenomenon which the Canadian authority, Professor David E Smith, refers to as the separation of the person of the monarch from the concept of the Crown in Canada.   This not only involves the absence of the monarch and her court, but also the more recent policy of the Canadianisation of the Crown. 

This conclusion may go further than is necessary. It is one thing, and a correct thing too, to emphasise that a governor-general is the representative of the Crown. But it is not “more correct” to say so. While it is clearer to modern ears, that does not make it “more correct.”  Indeed, it would be incorrect to deny or underplay the fact that the governor-general is, constitutionally, as much the personal representative of the Sovereign as of the Crown. While we can distinguish the Crown from the person of the Sovereign, we can never divorce them.  Not even a demise of the Crown, or an abdication, can do that. 

Not only can we not have the Crown without the Sovereign, we cannot retain some sort of facsimile of the Crown if we remove the Sovereign from our Constitution. This is the fundamental flaw of republican minimalism, a fact which seems to elude both the republican movement and the republican commentariat.

This is why the many proposals for change to some form of a republic hitherto have all failed at the threshold. As Canadian Professor David E. Smith observes, in any Canadian republic, some alternative concept would have to fill the void of the absent Crown, and none of the proposals attempts this.

The most facile republican model in Australia has been the celebrated and perhaps notorious   “tippex” solution advanced by the Australian Republican Movement and the Keating government.   The proponents argued that Australia could be converted into a republic by the simple act of whitening out the words "Queen", "Crown" and "Governor-General" and replacing them all with the word "President". But as Justice Lloyd Waddy pointed out, this is an attempt to  overthrow of the entire theoretical basis of the law and practice of the Constitution, which “… is, to put it mildly, somewhat more complex.”

As seen from Canada, the case for substantial constitutional change advanced in recent years in Australia seemed surprisingly to be based on one simple desideratum:  to get rid of The Queen.   Professor David E. Smith asks the obvious question: “Why such an unsophisticated rejection?” The extreme narrowness of the Australian republican raison d'être has been largely ignored in the media, in political circles, and in the academy. Yet the consequences to the constitutional fabric of the nation would be  momentous.

Although the “tippex” solution has been formally abandoned, the republican movement has advanced little further from this simplistic approach. Indeed the official position of the republican movement since the referendum is curious. It is that they now have no republican model. Yet they still demand what the republican leader and author, Mr. Thomas Keneally, correctly indicated would be “the biggest structural change to the Constitution since Federation.”   It is indeed unusual, to say the least, to demand change of such enormity, but then to admit that the proponents of change, including a Senate committee, admit to having  absolutely no idea of what change is envisaged.

This refusal to admit to a model may well be a tactic to paper over significant differences among republicans, and to encourage endorsement of the republican movement’s campaign for a cascading series of plebiscites and a referendum at the federal and presumably at the state levels.  A leading republican politician, Senator Marise Payne, who originally endorsed this process, changed her position significantly in a senate committee report after Professor Greg Craven had persuaded her that this would necessarily lead to the model in which the president is directly elected.  As a result, Senator Payne asks that the proposal for second federal plebiscite be abandoned, but that the first federal plebiscite be retained. 

Whether or not this further division between the republican politicians is resolved, the   demand for major change, without specifying that change, is not only curious, it is worse. What is being demanded is that the Australian people cast a vote of no confidence in one of the world’s most successful constitutions, without knowing what, if anything, is to fill the vacuum.

It is difficult to imagine a more irresponsible proposal.

The flaw in all this involves a refusal to countenance the existence of that vast institution at the heart of the constitutional system, the Crown. Hitherto all significant proposals for  republican change  have been based on this denial and involve an attempt to graft a republic onto an intrinsically monarchical constitutional system. Note that I refer to the broader constitutional system, of which the Australian Federal Constitution is but a part.

The point is that in the way it was drafted, in the way in which it was approved, and in the way it which it has allowed Australia to develop and to play a significant role in the world in the defence of freedom, the Australian Constitution must be counted among the world’s most successful.   Nevertheless, change to a particular republican model is possible, if that were the considered wish of the Australian people. What is not possible is change to “a” republic. The Constitution, wisely in my view, does not permit this vagueness. Those who say they are republican but have no idea of the sort of republic they want have just not taken the first essential step in the debate - determining precisely what is to be changed and why.

Such is the poverty of republican theory that comfort is sought in the presumption that a republic is inevitable. Note that this is an undefined republic. What is being predicted is that the Australian people will abandon their highly successful Constitution in return for “a” republic, that is any republic.   A perusal of the referendum campaigns before and since the foundation of the nation indicates that, as the Hon. Richard McGarvie used to say, Australians are “a wise constitutional people.” And as we are famously informed, the only things inevitable are death and taxes. Those of an age will recall a view proclaimed by many, including those who did not wish it to be so, that some form of socialism was inevitable - if not Stalinism, then at least that brand of  socialism that required that  the commanding heights of the economy be publicly owned or controlled. Those who propose a socialist future are now are a small minority, and even fewer would say today that socialism is inevitable.

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