§ 4. “Humbly Relying on the Blessing of Almighty God.”

This appeal to the Deity was inserted in the Constitution at the suggestion of most of the Colonial Legislative Chambers, and in response to numerous and largely signed petitions received from the people of every colony represented in the Federal Convention. When the expression was first formulated, towards the close of the session held in Adelaide, it was thought advisable to postpone the final determination of a proposition so delicate and significant until a later stage, in order to give time and opportunity for further consideration and for the additional manifestation of public opinion and sentiment. In the interval between the Adelaide and Sydney sessions of the Convention, the Legislative Councils and Legislative Assemblies of New South Wales, Victoria, South Australia, and Western Australia, and the House of Assembly of Tasmania, resolved to recommend to the Convention the insertion in the preamble of appropriate words acknowledging and invoking the blessing of the Supreme Being. During the session held in Sydney, as well as in the last session held in Melbourne, supplementary petitions were received in favour of insertion of words of the foregoing import. A few petitions were also received in opposition to the proposal. Finally the words were inserted in the preamble without a division, but not without protest from several members of the Convention. In justification of the insertion of the words stress was laid on the great demonstration of public opinion in their favour, as expressed in the recommendations of the Legislative bodies and in the petitions presented. It was also pointed out that such an allusion was not without precedent in other notable instruments of Government, such as the American Declaration of Independence, the Articles of Confederation, and the Swiss Constitution. The views for and against are fully expressed in the following extracts:—

“The foundations of our national edifice are being laid in times of peace; the invisible hand of Providence is in the tracing of our plans. Should we not, at the very inception of our great work, give some outward recognition of the Divine guidance that we feel? This spirit of reverence for the Unseen pervades all the relations of our civil life. It is felt in the forms in our Courts of Justice, in the language of our statutes, in the oath that binds the Sovereign to the observance of our liberties, in the recognition of the Sabbath; in the rubrics of our guilds and social orders, in the anthem, through which on every public occasion we invocate a blessing on our executive head; in our domestic observances, in the offices of courtesy at our meetings and partings, and in the time-honoured motto of the nation. Says Burke: ‘We know, and, what is better, we feel inwardly that religion is the basis of civil society.’ The ancients, who in the edifices of the mind and marble have left us such noble exemplars for our guidance, invoked. under a sense of its all-pervading power, the direction of the Divine mind. Pagans though they were, and as yet but seeing dimly, they felt that the breath of a Divine Being, ‘that pure breath of life, that spirit of man,’ which God inspired—as Milton says—was the life of their establishments. It is of this that Cicero speaks when he writes of that great elemental law at the back of all human ordinances, that eternal principle which governs the entire universe, wisely commanding what is right and prohibiting what is wrong, and which he calls the mind of God. Right through the ages we find this universal sense of Divine inspiration—this feeling, that a wisdom beyond that of man shapes the destiny of states; that the institutions of men are but the imperfect instruments of a Divine and beneficent energy, helping their higher aims. Should not we, sir, grant the prayer of the many petitions that have been presented to us, by recognizing at the opening of our great future our dependence upon God? Should we not fix in our Constitution the elements of reverence and strength, by expressing our share of the universal sense that a Divine idea animates all our higher objects, and that the guiding hand of Providence leads our wanderings towards the dawn? In doing so we will be but acting on what a great statesman called ‘the

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uniformly considered sense of mankind.’ It was from a consciousness of the moral anarchy of the world's unguided course that all races of man saw in their various gradations of light the vision of an eternal Justice behind the veil of things whose intimations kept down the rebellious hearts of earth's children. It was this that made them consecrate their national purposes to God; that their hands might grow strong and their minds be illuminated by the grace of that power Divine through which alone, as Plato says, the poet sings—

‘We give like children, and the Almighty plan
Controls the forward children of weak man.’

Under a sense of this great truth, expressed some thousand years ago, I ask you to grant the prayer of these petitions: to grant it in a hope that the Justice we wish to execute may be rendered certain, in our work, and our union abiding and fruitful by the blessing of the Supreme Being.”—Mr. P. M. Glynn, Conv. Deb., Adel., 1897, p. 1185–6.

“I say frankly that I should have no objection to the insertion of words of this kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard against the passing of religious laws by the Commonwealth. I shall, I hope, afterwards have an opportunity, upon the reconsideration of the measure, to bring before the Convention a clause modified to meet some criticisms which have been made on this point, and if I succeed in getting this clause passed it will provide this safeguard. I shall have an opportunity then of explaining how exceedingly important it is to have some such safeguard. There is no time for me now to go into an elaborate history of this question so far as the United States of America are concerned. I have investigated it with a great deal of care, and I can give the result of my investigations to honourable members, who, I hope, will not believe that I would mislead them if I could help doing so with regard to the effect of what has taken place there. Because they had no words in the preamble of the Constitution of the United States to the effect of those which the honourable member (Mr. Glynn) wishes to insert, Congress was unable to pass certain legislation in the direction of enforcing religion. There was a struggle for about thirty years to have some words of religious import inserted in the preamble. That struggle failed; but in 1892 it was decided by the Supreme Court that the people of the United States were a Christian people.…That decision was given in March or February, and four months afterwards it was enacted by Congress that the Chicago Exhibition should be closed upon Sundays, simply upon the ground that Sunday was a Christian day. The argument was that among a Christian nation you should enforce Christian observances.…There is nothing in the Constitution of the United States of America, even indirectly, suggesting a law of this sort. No doubt the State of Illinois could have passed such a law, because it has all its rights reserved. But there was nothing in the Constitution enabling the Congress to pass a law for the closing of the Exhibition on Sunday. As soon as ever those parties who had been working for the purpose of getting Sunday legalized throughout the United States found that decision given in February, 1892, that ‘this is a Christian nation,’ they followed it up quickly, and within four months there was a law passed for the closing of the Exhibition on Sunday.…It has been in force for five and a half or six years, and it was struggled against, as my honourable friend will know. There was a strong monetary interest against it, but I will say frankly that I was not aware that it has been held to be constitutional. I understand though that there has been no dispute among the legal men in that country as to its being constitutional. Honourable members will hardly realize how far the inferential powers have been extended in America. I should have thought it obvious, and I think Mr. Wise will agree with me that the Congress had no power to pass a law of that sort.…I should have thought that it was not in the scope of Congress to pass a law, no matter how righteous, to close the Exhibition on Sunday, but I find, on looking to a number of decisions in the United States, that it has been held again and again that, because of certain expressions, words, and phrases used in the Constitution, inferential powers are conferred upon the Congress that go beyond any dreams we have at present. I know that a great many people have been got to sign petitions in favour of inserting such religious words in the preamble of this Bill by men who knew the course of the struggle in the United States, but who have not told the people what the course of that struggle is, and what the motive for these words is. I think the people of Australia ought to have been told frankly when they were asked to sign these petitions what the history in the United States has been on the subject, and the motive with which these words have been proposed. I think the people in Australia are as reverential as any people on the face of this earth, so I will make no opposition to the insertion of seemly and suitable words, provided that it is made perfectly clear in the substantive part of the Constitution that we are not conferring on the Commonwealth a power to pass religious laws. I want to leave that as a reserved power to the State, as it is now. Let the

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States have the power. I will not interfere with the individual States in the power they have, but I want to make it clear that in inserting these religious words in the preamble of the Bill we are not by inference giving a power to impose on the Federation of Australia any religious laws.”—Mr. H. B. Higgins, Conv. Deb., Melb., pp. 1734–5.

The case referred to by Mr. Higgins was Church of the Holy Trinity v. United States, 143 U.S., p. 457. It came before the Supreme Court of the United States on error from a United States circuit court. The question involved was the construction and effect of the federal statute of 26th February, 1885, prohibiting the importation and migration of foreigners and aliens under agreement to perform labour in the United States. (23 Stat. 332 c. 164.) The Church of the Holy Trinity was duly incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, 1887, an alien residing in England. In that month the Church made a contract with him, by which he was to remove to the city of New York and enter into its service as rector and pastor, which Warren accordingly did. It was claimed by the United States that this contract, on the part of the Church, was forbidden by the federal Act, and an action was commenced to recover the penalty prescribed by that Act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly. (36 Fed. Rep. 303.) The Church appealed to the Supreme Court of the United States, and the single question presented was, whether the Circuit Court had erred in giving that decision. The decision of the Court was delivered by Mr. Justice Brewer on 29th February, 1892. The Court was of opinion that the act of the Corporation was within the letter of the prohibition; for the relation of rector to his church was one of service, and implied labour on the one side with compensation on the other. Further, as noticed by the Circuit Judge in his opinion, the 5th section, which made specific exceptions, among them being professional actors, artists, lecturers, singers, and domestic servants, strengthened the idea that every other kind of labour and service was intended to be reached by the first section. While there was great force in that reasoning, the Court did not think that Congress intended to denounce, with penalties, a transaction like that in the present case. It was a familiar rule, that a thing might be within the letter of a statute, and yet not be within the statute, because not within the spirit, nor within the intention of its makers. The Court therefore found that the whole of the Act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the Committee of each House, all concurred in affirming that the intent of Congress was simply to stay the influx of cheap unskilled labour.

“It was never suggested that we had in this country a surplus of brain toilers, and least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of Congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the Act.…But beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national; because, this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The Commission to Christopher Columbus, prior to his sail westward, is from ‘Ferdinand and lsabella, by the Grace of God, King and Queen of Castile, &c.,’ and recites that it is hoped that by God's assistance some of the continents and islands in the ocean will be discovered, &c. ….The first colonial grant, that made to Sir Walter Raleigh, in 1584, was from ‘Elizabeth by the grace of God, of England, France, and Ireland, Queen, Defender of the Faith,’ &c.; and the grant, authorizing him to enact statutes for the government of the proposed colony, provides that ‘they be not against the true Christian faith now professed in the Church of England.’ Coming nearer to the present time, The Declaration of Independence recognizes the presence of the Divine in human affairs, in these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ ‘We therefore, the Representatives of the United States of America in general Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by the authority of the Good People of these colonies solemnly publish and declare,’ &c., ‘and for the support of the Declaration, with a firm reliance on the Protection of Divine Providence, we mutually

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pledge to each other our Lives, our Fortunes, and our sacred Honour.’ On examination of the Constitutions of the various States we find in them a constant recognition of religious obligations.… It is the duty of the Court, under those circumstances, to say that, however broad the language of the statute may be, the Act, although within the letter, is not within the intention of the legislature, and cannot be within the statute.” (Per Mr. Justice Brewer, Church of the Holy Trinity v. United States, 143 U.S. 457.)

On 25th April, 1890, Congress passed an Act to provide for celebrating the four hundredth anniversary of the discovery of America by Christopher Columbus, by holding in the city of Chicago, in the State of Illinois, an International Exposition of arts, industries, manufactures, and products of the soil, mine, and sea. A Commission was constituted for carrying out the enterprise, and preliminary arrangements were made. This Act was passed by Congress in the exercise of its power to regulate and promote inter-state and foreign commerce. On 5th August, 1892, Congress passed an Act (ch. 381, 1892) in furtherance of the first-mentioned Act. It recited that it was enacted “For the purpose of aiding in defraying the cost of completing in a suitable manner the work of preparation for inaugurating the World's Columbian Exposition.” It then proceeded to provide that there should be coined, at the mints, five million half-dollar silver pieces, to be known as Columbian half-dollars. It next went on to make other provisions and arrangements for the holding of the Exposition. Then came section 4, as follows:—

“That it is hereby declared that all appropriations herein made for, or pertaining to, the World's Columbian Exposition are made upon the condition that the said Exposition shall not be opened to the public on the first day of the week, commonly called Sunday; and if the said appropriations be accepted by the corporation of the State of Illinois, known as the World's Columbian Exposition, upon that condition, it shall be, and is hereby, made the duty of the World's Columbian Commission, created by the Act of Congress of April twenty-fifth, eighteen hundred and ninety, to make such rules or modification of the rules of same corporation as shall require the closing of the Exposition on the said first day of the week commonly called Sunday.”

The amending Act, like the principal Act, was passed by Congress in the exercise of its power over trade and commerce. In the debates which took place in Congress during the passage of the amending Bill no reference appears to have been made to any religious aspect of the proposed closing of the Exposition on Sundays, or to the case of the Church of the Holy Trinity v. United States.