The Mystery of the Queen's Two Bodies
Written by Lloyd Waddy RFD QC   
Tuesday, 11 June 1996

Lloyd Waddy RFD QC
National Convenor
Australians for Constitutional Monarchy
Address to Seminar Marking HM The Queen's Seventieth Birthday
Parliament House
Sydney, Australia
June 12, 1996

Transcript as released by the Office of Research and Education

Mr Waddy RFD QC:Four years into the great constitutional struggle for the hearts and minds of our fellow Australians, and indeed nine hundred years into the continuing struggle to preserve our liberties, it is not easy to take a new angle on our Constitutional Monarchy. By the time I finish I hope that you will feel that I have succeeded to some small extent and that some new light has been shed on our battle.

On the 10th May this year it was reported that an artist, Antony Williams, had produced a new portrait of Her Majesty The Queen to mark her seventieth birthday. It immediately attracted controversy.

Lord St John of Fawsley proclaimed: "those are not the Queen's hands."

Traditionalist critic Brian Sewell joined in the attack. "The swollen fingers and fat wrists, the worn and ill-trimmed nails, are those of Murphy's men, relieved of the pneumatic drill, next to grasp a pint of Guinness" he is reported to have said.

Michael Noakes, who has painted the Queen three times also criticised Williams for "overemphasising some of the smaller undulations" on the Queen's hands. However he added "This is an honest picture. One should never set out to flatter because that is the beginning of the slippery slope. Equally one should never set out to be beastly. I don't think Antony Williams has done either."

I start with this illustration because it is the public body of the Queen with which we are all familiar: not so familiar as to be treasonable but the one which we all know and recognise, idealised, romanticised or vilified. We see Her Majesty on television and in the press and instantly recognise her human body.
May I adopt the ancient terminology and call it Her Majesty's "body natural"? (but not, I hasten to add "au naturel"!

Over the weekend controversy has raged over the rather tawdry conduct of a feminist lawyer one Jocelyn Scutt. Now far be it for me to peddle "scuttle-butt", but the course of her actions bears some analysis.

Dr Scutt was written to some weeks ago and asked if she would accept the honour of being appointed an Officer of the Order of Australia. The Sydney Morning Herald reported that Dr. Scutt said "I hung on to the first letter for a very long period of time wrestling with my position." Eventually she replied in the affirmative and apparently disclosed her decision to no one.

The official Secretary to the Governor-General, Mr Douglas Sturkey was reported in the Daily Telegraph (11 June 1996) as stating that initially Dr. Scutt had agreed to accept the award, but late last week she had sent a facsimile to Government House Canberra and asked "if the award could be held in trust to be presented by Australia's first president!"

Mr Sturkey replied on Friday last by telephone telling Dr. Scutt that she would be invited to an investiture at Government House Melbourne later this year, and that it really was a matter for Dr Scutt and the Governor's office whether she would wish to defer attendance until some other time.

Dr Scutt explained to the Australian newspaper of 10 June 1996 that:

The question was: does one have the award conferred in circumstances where these awards still have the imprimatur of a head of state who is not an Australian citizen?"

Dr Scutt, who claims to support "equal opportunity" added:

Australian law s forbid discrimination on the grounds of gender and yet if Elizabeth Windsor" (sic) "had a brother she would not be Queen.

I also believe in our constitutional position as to freedom of religion and the British Crown is not allowed to be free with regard to religion. I believe that position is in conflict with our constitutional position and the right that every human being should be entitled to adhere to whatever religion they want.

This extraordinary outburst ensured for Dr Scutt that she became lead story on the ABC and other news, totally overshadowing all those who had awards for service far senior to hers.

It also brought forth the approval of her fellow republicans former Chairman of the ARM Mr Thomas Keneally (apparently back in the country this week) who intoned:

At this stage of the debate I applaud her gesture because it shows that republicanism hasn't gone away.
He was joined by current ARM chairman Malcolm Turnbull who not unexpectedly said that Dr Scutt "may well by example, encourage a number of other people who have Australian honours to consider putting them on hold or putting them in suspension until such time as they can be conferred by an Australian head of state."

Well what of the facts of this strange lapse of manners and self seeking publicity?

Under the former ministry of Mr Keating the awards for the Order of Australia were not to be made only by the Chancellor of the Order, the Governor-General, and NOT by the Queen who was only to inform after the event of the names of those awarded honours. I do not approve of that system, as it takes away what recipients think they are receiving, an honour from the Queen. However it is apparently enough that the Queen is informed to tweak Dr Scutt's tender conscience.

Worse it confuses the Queen's two bodies!

Now why would I say that?

The answer lies in historical struggles well predating our era, times when dislike of the monarchical system could lead to death of king or subject.

In 1603 Good Queen Bess died and James the VI of Scotland became king of England as well. They were two separate kingdoms with their own individual parliaments, court systems and laws. James claimed to rule by "divine right" and started to assert rights that had not been asserted by the Crown for centuries. He claimed as the fountain of justice the right to decide cases at law personally! He was totally rebuffed by the judges and was very displeased!!

This is not the time to survey all the uneasy battles for power in the seventeenth century, its bloody civil wars and its short-lived republic.

In 1608, however, a very small civil claim raised the most extraordinary legal issues which defined, by the unanimous judgment of all the judges, the very issues of how many bodies the king actually had.
I wonder if I have your interest?

Chief Justice Coke tells us in the beginning of the seventh part of his reports of cases that Robert Calvin, gentleman, complained that Richard and Nicholas Smith had put him out of possession of his freehold of Aggerston, in Shoreditch.

Richard and Nicholas had a very imaginative attorney, William Edwards. Now, in general, no one who was an alien could bring an action in England. And so they pleaded by their attorney, that they need not answer Calvin's claim because, they said, Calvin "is an alien born, (on the 5th day of November in the third year of the reign of the king that now is, of England, France, and Ireland, and of Scotland the thirty-ninth), at Edinburgh within his kingdom of Scotland aforesaid and within the allegiance of his said Lord the King, of the kingdom of Scotland and out of the allegiance of the said Lord the King of his kingdom of England" and incidentally governed by different laws.

Well, this sent the whole legal world into a spin!

Chief Justice Coke tells us that the case was argued in the court of King's Bench, and then adjourned into the Exchequer Chamber to be argued over many days by counsel for each party and then by all the judges of England including even the Lord Chancellor.

Eventually it was resolved by the Lord Chancellor and twelve judges that Mr Calvin was no alien and the respondents had to reply to the writ.

Coke claimed that he had never heard a case more substantially and judicially argued and added: "though it was one of the shortest and least that was ever argued in this court, yet it was the longest and weightiest that ever was argued in any court, the shortest in syllables, the longest in substance, the least for the value,…but the weightiest for the consequent, both for the present and for all posterity." (7 Co REP. 4a; 77 ER 381)

The judgment is the leading authority on how the Crown is inherited, why there is never an interregnum, what allegiance is owed, what allegiance is, and the nature of the oath of allegiance itself. In particular, the judges studied in what capacity the oath of allegiance was given and received. And they came to a startling conclusion, although it was totally in accordance with all known law up until that time.
The headnote in the current English Digest of cases says this:

(7) The King hath two capacities in him: one a natural body, being descended of the blood royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a politic body or capacity, so called, because it is framed by the policy of man and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, nonage, etc. Now seeing the King hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered, to which capacity allegiance is due; and it was resolved, that it was due to the natural person of the King (which is ever accompanied with the politic capacity only, that is, to his Crown or Kingdom distinct from his natural capacity.

Coke puts it this way: (p.391): "Our (al)legiance is to our natural liege sovereign, descended of the blood royal of this realm." He goes on to attribute this to the immutable laws of nature. Then the judges found that "Calvin was born under one natural (al)legiance and obedience due by the law of nature to one sovereign therefore he is no alien"! The Scottish invasion of England had begun!!

But what you may ask has this to do with Dr Scutt and Her Majesty the Queen in 1996?

Whilst we owe allegiance to the Queen personally, we owe no allegiance to her as Queen of the United Kingdom. Australia is governed under its own laws, courts and parliament, and is as separate from the UK as Scotland was from England in the early seventeenth century.

And just as Scotland and England had different orders of nobility so we have our own Order of Australia. It has nothing to do with the UK or Scotland or New Zealand or Canada. As a lawyer Dr Scutt can be presumed to know that.

Nor is the Queen a foreigner. By Act of parliament and by the Constitution of Australia, she is an essential part of our polity, what we call "the Commonwealth of Australia". As Dr Ivan Shearer has written the Queen is a "citizen" (if that word has any meaning for a monarch!) of each of the countries of which she is queen.

Even the well known republican Professor George Winterton has written that the Queen of Australia is a different, distinct, legal entity to the Queen of anywhere else.

So where does that leave Dr Scutt's ill-mannered publicity seeking support of the republican cause?
It must rest upon the personality of the Queen and the fact that she is by law bound to be Queen of the United Kingdom before she can be Queen of Australia. That merely settles the inheritance of the Australian Crown and identifies the holder. Further, it is not the Queen's decision that she be bound by the requirements of the Protestant succession, but the democratic will of the people of England as expressed in the then Acts of Parliament.

Might I respectfully suggest that if Dr Scutt finds such matters undesirable that is a reason for seeking change to the details not the essence of the institution? Under our Australian system of government, we are left free to choose any Heads of State here of any religion, for the office of Governor-General and perhaps of Governor are "offices" under the constitution, whereas that of Monarch is not such an office.

As to male primogeniture, perhaps the time to change that is when all of society gives up taking the male patronymic and we accept the end of family inheritance as it has been known in the West for millennia. It is very odd to single out only the Queen and attack her for a system she did not invent, but by which, since 1837, two women have reigned for over 100 years. The theory many be wonky but the result seems weighted towards female opportunity so far!

So what of the Queen's two bodies?

Thankfully Her Majesty is in good health and her body natural seems hale and hearty. Long may it remain so!

Since the seventeenth century the doctrines of the Crown have changed appreciably. We now readily accept the doctrine of the divisibility of the Crown and Australians in particular accept that "The Crown in right of the Commonwealth" can sue "The Crown in right of the States".

We can readily distinguish the Queen's different political bodies and while Acts of Citizenship now govern our personal rights, and our constitution has greatly limited any sense of Divine Right of Kings, (aided by a handy little beheading of King Charles!), we are free to study and try to understand why it is that our system of government has delivered us so long a period of domestic peace and stability, has spread throughout the world, and suits nations as distinct as the unitary states of the United Kingdom and New Zealand and the federations of Australia and Canada amongst the old dominions, and New Guinea and other nations across the developing world.

The English, Irish and Scottish republics of the seventeenth century were unmitigated disasters, and even that of the great United States, born in civil strife, with many fleeing to Canada, and afterwards racked by the bloodiest of civil wars, is hardly an attractive substitute for our Antipodean Bliss.

No matter how many bodies she has, on The Queen's seventieth birthday let us rejoice and say:

Long to Reign Over Us: God Save the Queen!