Q. Dr. Lee, we welcome you back to the United States.

A. Thank you, Byron. ltisgrcHllo be back and see many old friends, including yourself, of course. Americans are asking me: "Have you ever missed living here in the St.ates, and particularly in Dixie?" Having lived in Australia now for the pasl founeen years, I reply: "Only oncc --namely all the time!"

Q. We have appreciated )'our work over the years. Could you tell us something about your most

Lim cs onward. J also think Britain began to receive the Gospel between 36 AD. and 65 AD.

During the second centUlY AD., a kin gofSoUlh Blitain, Llewalias Lucius, legislated that the whole of Britannia woul d embrace Christiani.ty as the nati onal religi on. At that time , Britanniain SOUlh Bli tain was aRoman prOl'ince with a great deal of local auton omy.

The AnglO-Saxons came from Germany to Britain around 449 A.D.,

recently completed doclora'l thesis]

A. My latest doctoral disseltation is The Roots and Fruits of the Common Law. It is approximately one million words, and is 3500 pages in length.

Q On COlnnl0n Law &

massive 'inDux of Old Testament and New Testament Biblical injunctions

." into the fabric of the customary law. Most jurists agree that by the ninth or tenLh cemur), A.D ., th ere was a common system of law (as distinct from regi onal by-laws) thronghout England .

Once Britain laterSlaned tocolonize other countries -- such as Canada, New England Cas the beach-head of whaL later became the United States), Austraha , and New Zealand -- it

exported its Common Law also to those places. Thus, in th e American Bill of Rights, there is the statement t.hat Common Law is to be used in American courLS in all malters in which more than twenty dollars is involved.

Q. How would you define Common Law?

A Well, I think you need different definitiOns. A first is: the Law given by God to

A Interview with Dr: Francis Nigel Lee by Rev. Byl'D11 Sl1app

Q. Is there a diffeTence between Common Law and what is so often called Natural Law?

Adam before the fali, and re-issued to Noah at and immediately after the time of the fiood.

This fOlmed the basis o [humanily'S legal system at least until the lime of the Tower of Babel. Following the confusion of tongues there, thats)'stcm, which was deteriorating even then because of the impact of sin, still spread out throughout the world. Yet itlhen continued to deteriorate, vel)' greatly and very rapidly, though far m ore so in some countries than in others.

It was b est preservecJ in Gld Testament times among God's covenant people, the Israelites. My research has shown that i.l was also preserved among the people of the British Isles.

It is there that what we usually G1l1 Common Law began. 1 thin k it developed there from pre-Christi an

and finally got the upper hand there around 600 A. D. The ancient Celto-Britons, who h ad been christianized there for many centuries, had also enjoyed their Common Law even longer.

The CelLo-Britons then slowly imennanied with the AnglO-Saxons. TIle latter had brought a good system of Common Law with them from Germ any. There, it had been constructed as a result of many doses of common grace.

Indeed, it compared very favorably with the pre-Clllistian ancielll Greek an cl ancient Roman legal systems.

From around the time of the approximately 680 A. D. King Ina, and especially that of the approximatel), 880 A.D. KingAlfred the Great onward, the Common Law was wli tten down. This disclosed that there had been a

22 l' THE COUNSEL of Chalccdoll l Marth, 1995

A. Yes, if you are referring to what most pluralists believe about Natural Law. However, Common Law would be closer to what Calvinists understand by Natural Law -- namely that law which God first revealed to Adam and then to Noah.

Of course, from the time of the Tower of Babel onward, one lapses [rom primitive Natural Law into what is often called the Law of Nations alias primitive ImernationalLaw. Common Law, however, would differ from this.

Q. What was the influence of King Ethe1red in regard to Common Law?

A. Although there were several Ethelreds, I assume you are referring to the one who lived around the time of King Canute. His Wlitings indicate he was a godly king. He sought to live by the Bible, and in an English culture then spreading out to form one now reflected in the Common Law.

Q. What inlluence did the church court system have on the developmem of Common Law in England?

A. Even in pre-Christian times, there was massive sea commerce between Ireland and England on the one hand and Phoenicia and Palestine on the other. Thus, it seems to me that many Old Testament ideas were exported to and began to take root in what isnaw Ireland and England, long prior to Christ's birth.

After Christ's incarnation and ascension, the missionaries welll out from Palestine. If I am cOlTect in my thesis (which J defend wi th a great degree of probabili.ty), the Gospel reached most of what is now called England and a small pan of Ireland between 35 and 65 A.D. The missionaries wok the whole Bible there. This includes the Old Testamem civil laws, and also Biblical passages regarding the institution of eldership (such as Exodus 18).

This latter passage , of course, deals with the diversification of political power and provides the basis for presbyterian church government. The latter quickly became rooted in what is now England and Wales. Perhaps from as early as 200 A.D., and certainly from 400 A.D. onward, it also became rooted in what is now Scotland -- aud very deeply so.

Here I would also iuclude the jury system, whIch goes back very far. It includes an awareness -- conveyed by the missionmi.es -- that there had been twelve llibes of Israel, and twelve apostles. From that it can be demonstrated, I think with a great degree of probabili ty, that the later medieval jury system developed.

Q. How well was Common Law received throughout England'scolollial empire? Weknowithadgreatimpact on American society. How was it received in Australia, where you are currently living?

A. There is some parallel between the settling of the United States and Australia. When the first migrants came from Britain to what is now the United States, in the early 16005 and onward, they brought English Common Law to those colonies. That became the law of the land.

In America some very godly early jUdgesaugmemedthat Common Law, which was already strongly in fluenced by the Bible, with direct applications thereoftoearlycliminal decisions. An example o[thisisJohn COllon's Moses and His)udicials.

The Australian situation, though somewhat similar, is also a little different. When Amelica gained her indepeudence from Britain~ the latter was put into a clisis. Befdre Amelica's independence, Britain had been dumping many com~cts especially in the swamps of Georgia. ,

With the defeat of Britain, this stopped. They then had to find another place. They wanted to try South Africa, but that coumr)' -- then still under Dutch rule -- refused to accept convicts from the British.

So Bli tain next chose a large and almost -uninhabited country --Australia -- as the new place to dump her criminals. Thus, the first colonists in Australia consisted of convicts (some of whom had been involved in major crimes and others in small offenses) and soldiers to guard them.

Common Law remained the legal system, althoughsome of the sentences were then excessively harsh. For example, stealing a loaf of bread could result in very severe semencesin Britain -- or alternatively, in lifelong exile in Australia. Thus, especially many petty pickpockets were then sent "dovm under.lI

Most of the first few Governors in

Commandments in public places, and that also influen ced the early legislation. They also encouraged the children of the convicts to attend Christian dayschools which taught them both Christianity and morality. Indeed, the standard of education in Australia soon ovenook that even of Britain.

Q. From your study, what were some of the most important fruits of the Common Law?

A. Let me first of an list some of them. There were the B.C. SOOf Mu"im utian Code of the great Blythonic kingDunvallMoedmud; the A.D. 880r Wessex Code of King Alfred; and to a lesser extent the Code of Canute which came a little later. All of these preceded the 1066 Nonnan invasion of England by William the Conqueror, and his own preservation of her ancient Common Law as reOected in his own Domesday Book.

Of course, the Magna Carta contract of 1215 later became the basis for the English Bill of Rights in 1688 and the American Bill of Rights in 1791. I would further say, without any hesitation, that a very big part of the Westminster Larger Catechism --being an exposition' of the Ten Commandments in the setting in which they were understood at Westminster -- certainly incorporates large slices also of pre-Westminster British Common Law.

Also the 1688 British Bill of Rights is a velY interesting document. You may remember that after Cromwell's death, a constitutional limited monarchy was established at the time of the "Restoration" in 1660. However, under Charles II, it qUickly degenerated imo an Anglican absolutism during which "killing times" Puritans were hunted down.

Australia were godly ChristiallS. Some Among such, were the ancestors of of them posted the Ten Lee and Washington. Many such

March, 1995 'I' THE COUNSEL of Chalcedoll l' 23

ancestors ohhe later Ameticanpatriots came to the colonies predsely as a result of that persecution.

Charles II died as a secret Roman Catholic. His brother,an open Roman Catholic, then ascended the throne as James II. When his son was bam and soon baptized in the Church of Rome, he declared that the infant heir would later become king of England.

This was too much for the English. They promptly deposed James II. Indeed, this was. the third or fourth time they had impeached a wayward monarch.

James II fled into exile to France. The English tllCU invited a Calvinist king, William of Orange, to come over to them from Holland. He was me first Presbyterian king that England had enjoyed for at least fifteen centuries.

He fought a major battle against J ames II's forces in Ireland, at the Battle ofthe Boyne. Providentially, William won.

Constitutionally, the Btitish leaders then sat down and decreed -- for the first time -- that England was to be a Bible-believing Protestant kingdom which by law must have a Protestant monarch. The idea of specifically an Anglican lting, came later.

As a limited monarch, KingWilliam (together with all his successors) was to be bound covenantally -- together with the leaders and the people -- to abide by the tenns of the contract then enshtined in the 1688 Btitish Bill of Rights. When this document is compared to the Amelican Bill of Rights Wlitten a century later, one can see that many of the ideas in the latter were delived from the fOlmer.

Such ideas include the rights of citizens to bear arms. To some extent, these ideas were crystallized into writing also in the various colonial constitutions in pre-Union Amelica.

These ideas subsequently found their way into the Declaration of Independence -- and then, more particularly, implicitly into the u.s. Constitution and explicitly into the American Bill or Rights. All Ihese above documemsarc addition~ i fruits of the Common Law.

There. is also a constalll memion of Comm on Lqwi n subsequent coun cases -- light clown to the end of the ninetcemll Ce nlll1Y in Americ~, and till the beginning of the twentieth centmy in England. In lael, I was recently lookingatan A tlstralian court case, Noomil vs. Auty 09(2), ill which the judge said thai Ausl ralia is "a predomillHntl y e ll ristian country." This is a fruit especially of the Common Law -- hecause lotiay, probably 95% or all Ausl raiians