Homily for the Red Mass
St Mary’s Cathedral, Sydney, 29 January 2024
Previously Chief Justice of Newfoundland, the Bermuda-born Scots lawyer, Francis Forbes, arrived in Sydney Town in March 1824 to assume the office of Chief Justice of New South Wales.[1] In May the Charter of Justice establishing the Supreme Court was proclaimed, and the oath of office administered to the newly appointed Attorney-General and Registrar. Practicing certificates were granted soon after. At that stage Forbes was not only the chief judge but the only one, as well as a Legislative Councillor and member of the Executive Council. It fell to him to certify that colonial legislation was consonant with the laws of the empire.
That probably doomed him to be at loggerheads with the governor. Infuriated by criticisms in the Australian and Monitor newspapers, Governor Ralph Darling sought to control the press. But Forbes declared his bill repugnant to the laws of England and the evolving freedoms of the colony, and the Colonial Office agreed. Forbes also championed other protections of the individual, such as trial by jury, free education, small landholdings, ready access to justice, limits to government power, and an end to transportation of convicts.
Controversy over such matters and the animus of the governor and others, on top of his huge workload, eventually broke him. But Forbes is rightly remembered as a champion of liberties within a modern legal system.
Freedom is the golden calf of secular modernity. Each person is regarded as a radically free subject, able to choose what the good life is for them at each moment, to revise that conception at whim, and to pursue it as they wish—unconstrained by nature or reason, tradition or community. On this view a good legal system is one that, as far as possible, lets us to be and do what we like.
It’s an approach that has its advantages. But the downsides of such an understanding of law and liberty are many. Legal assaults on the most vulnerable, including the unborn and dying, now ubiquitous in the West, are excused by personal autonomy. An ‘Equality’ bill, soon to be debated in state parliament, would allow minors to pursue medical treatments without parental consent; would let people change—some would say falsify—their birth records and other legal documents regarding their sex; would permit soliciting for prostitution even outside school grounds and places of worship; would abrogate all legal barriers to commercial surrogacy; and would stop faith-based schools choosing who joins their community on the basis of beliefs or actions.
I will not trouble you with my opinion on the substantive questions: rather, I raise these as examples of an “unencumbered” conception of freedom that Francis Forbes would have found deeply puzzling. For it presumes we are atomised individuals and eschews not just “Christian values” and “British values” but any explicit conception of the good. It is unclear how such an approach can sustain the virtues, practices and institutions that have underpinned our civilisation, community and legal system.[2]
Of course, questions regarding freedom and truth, individual and community, and the best way to order freedom so that all have opportunities to flourish, are as old as humanity itself. The first misdemeanour judged by the most supreme court was that of Adam and Eve. Though given so much, they sought to take more. But more was going on here than the theft of fruit occasioning transportation outside Eden: their real crime was the unwillingness to be constrained by any external law. A darkness entered the human heart resisting obedience to law and a series of not-so-original sins followed, such as Cain slaying Abel. Yet our history also demonstrates God’s unrelenting encouragement, and humanity’s continued efforts, however imperfect, to pursue and protect the good.
In today’s first reading we hear of those most famous legal prescriptions, the Ten Commandments (Ex 20:1-17). What are we to make of them? Are they arbitrary dictates of a micromanager God, or rules of the Jewish and Christian clubs, either way hampering the pursuit of personal happiness? Or are they revealed religion and natural reason’s code of behaviour for individuals in community—one that honours God and humanity, marriage and family, life and limb, sex and relationships, property and candour; one that seeks individual and communal regulation of ego, aggression, deceit, lust, covetousness and the rest?
As a tax official Zacchaeus enjoyed the freedoms afforded by material wealth and Roman favour (Lk 19:1-10). But living as he pleased wasn’t all it was cracked up to be. In a moment of desperation, he climbs a tree to glimpse a passing holy man. His bet pays off: Jesus invites Himself to Zack’s place, to the chagrin of the more scrupulous onlookers. The encounter is transformative: Zacchaeus is moved to repay the Lord’s mercy by compensating any he has cheated and giving alms to the poor. He has experienced not only freedom from but freedom for, a new-found liberty ordered not by blind preference but by a clear sense of the good.
In the refounded Australian whose predecessor newspaper had been defended by Chief Justice Forbes against Governor Darling, David de Carvalho recently argued that the malaise in Western civilisation has been centuries in the making.[3] What began as a drive for human liberation “gradually mutated, over time, into a force for human enslavement”—not by external forces but our own egoistic impulses. The Forbes clan provided three Moderators of the General Assembly of the Church of Scotland[4] and though Francis was a private and tolerant man when it came to religion,[5] he would, like most of their contemporaries, have thought the Christian religion was the best force for self-regulation. But as “the rituals, beliefs and customs of Christianity [that] had underpinned the sense of community and participation in a common enterprise” waned, and the “sense of life’s meaning and purpose being connected to something greater than oneself and one’s own interests” evaporated, self-assertion and desire-fulfilment became king. “Recognising the motivational shortcomings of a calculating ethos, modern secularists embraced the liberalism and language of human rights while killing the god that underpinned them.” Yet without the virtue, principles, self-restraint and sense of the sacred hitherto provided by faith and reason, democracy, its legal institutions and its jurisprudence, lack solid foundations.
In the past year we lost in Pope Benedict XVI and Cardinal George Pell two great advocates for the essential links between freedom and truth. Benedict thought many are reluctant to let Christ into their lives out of fear that in saying Yes to religion they would lose something. Sure, Benedict said, there would be costs: they would be asked to say goodbye to things like corruption, manipulation, selfishness. But these are necessary losses, and in their place, they would gain true friendship with the Lord, the source of beauty, liberation and fulfilment.[6]
Human law may only be a pale reflection of that divine law of love. But it, too, is ultimately not so much about constraining liberty as about ordering it, about freedom not only from but for, for service of the common good and for human flourishing. For those who make, judge according to, and otherwise serve the law we pray.
[1] C.H. Currey, “Sir Francis Forbes (1784-1841),” Australian Dictionary of Biography, vol. 1 (1966); C.H. Currey, Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales (Angus & Robertson, 1968); J.M. Bennett, Lives of the Australian Chief Justices: Sir Francis Forbes (Federation Press, 2001).
[2] Recent critiques include: Patrick Deneen, Why Liberalism Failed (Yale University Press, 2018); David Bentley Hart, ‘Freedom and Decency’ in In the Aftermath: Provocations and Laments (Eerdmans 2009), 69-82; James Kalb, The Tyranny of Liberalism (ISI Books, 2008); David C Schindler, Freedom from Reality: The Diabolical Character of Modern Liberty (University of Notre Dame Press, 2017).
[3] David de Carvalho, “Modern Western malaise 500 years in the making: We need to restart dialogue between faith and reason,” The Australian 20 January 2024 Modern Western malaise 500 years in the making | The Australian. De Carvalho was responding to Tom Switzer, “Instead of facing up to moral decline, the West is lowering its standards,” The Australian 30 December 2024 https://www.theaustralian.com.au/inquirer/instead-of-facing-up-to-moral-decline-the-west-is-lowering-its-standards/news-story/122c0b221bbe1acf8a64a73ad2ea19b9.
[4] John Forbes (c. 1568-1634) was elected Moderator of the General Assembly of Aberdeen in 1605 contrary to the King’s order. Patrick Forbes (1776-1847) was Moderator of the General Assembly of the Church of Scotland in 1829 (Wikipedia has him as Sir Francis Forbes’ half-brother but the biographies in note 2 do not), and Lewis Forbes (1794-1854) served as Moderator in 1852.
[5] He was President of the Council of the “non-sectarian” Sydney College (forerunner of Sydney Grammar School), seeking to advance its fortunes on the principle that “religion, morals, arts, commerce, political freedom, and public happiness all follow in the train of early instruction” (Bennett, Forbes, p. 124). He was buried with Anglican rites by Revd Thomas Steele but Bennett suggests he “was not a regular Churchman” (Bennett, Forbes, p. 135).
[6] Pope Benedict XVI, Homily for the Beginning of the Petrine Ministry of the Bishop of Rome, 24 April 2005, https://www.vatican.va/content/benedict-xvi/en/homilies/2005/documents/hf_ben-xvi_hom_20050424_inizio-pontificato.html
Introduction to the Red Mass – St Mary’s Cathedral, Sydney, 29 January 2024
Welcome to St Mary’s Cathedral in Sydney, to the Red Mass marking the opening of the 2024 law term. The first recorded Red Masses were celebrated in 1245 in Notre Dame de Paris and in 1310 at Westminster, and called red because of the vestments of the royal judges; here in Sydney the profession is younger and this is only the 93rd such annual Red Mass.
This year we also celebrate the bicentenary of the establishment of the Supreme Court of New South Wales. In Letters Patent of 1823, George IV provided the new institution “for the better administration of Justice in New South Wales and Van Diemen’s Land and for the more effectual Government thereof.”[i] The penal criminal court and judge advocates were abolished. The new court would have the same jurisdiction as the King’s Bench, Common Pleas and Exchequer, but in a more modern and streamlined system.
I salute therefore the Chief Justice of New South Wales, Hon. Justice Andrew Bell, and other members of that bicentennial court. Likewise, Hon. Justice Julie Ward, President of the NSW Court of Appeal; Hon. Justice Derek Price AO, Chief Judge of the District Court of NSW; Hon. Justice Brian Preston SC, Chief Judge of the Land and Environment Court of NSW; Hon. Judge Peter Johnstone, Chief Magistrate of the Local Court of NSW; Hon. Judge Gerard Phillips, President of the Personal Injury Commission of NSW; Commissioner Nichola Constant, Chief Commissioner of the Industrial Relations Commission of NSW; and other judges, magistrates and staff of state and federal courts, tribunals and commissions.
Amongst our lawmakers I acknowledge: Hon. Michael Daley MP, Attorney General of New South Wales, representing the Premier; Hon. Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General; Hon. Mark Speakman SC MP, Leader of the Opposition; Hon. Alister Henskens SC MP, Shadow Attorney General; Hon. Susan Carter MLC, Shadow Assistant Attorney General; and others past and present members of parliament.
From our legal professions and academies I welcome: Mr Michael Sexton SC, Solicitor General for New South Wales; Mr Brett McGrath, President of the Law Society of New South Wales; and other legal practitioners, academics, students, and staff.
I acknowledge the concelebrating clergy, including Fr Peter Joseph, chaplain to the St Thomas More Society, and I thank Mr Richard Perrignon, President of the Society, with other members, for assisting in organising this occasion, along with the St John’s College Choir.
We pray for members and friends of the St Thomas More Society who have died in the past year, including Hon. Associate Justice John McLaughlin of the Supreme Court of NSW; Hon. Judge Michael Finnane RFD KC of the District Court of NSW; and Mrs Christine McCarthy, spouse of John McCarthy KC, a former President of the St Thomas More Society. To all associated with the law, a very warm welcome.
[i] Supreme Court of NSW, “Celebrating 200 years of the NSW Supreme Court,” The Founding of the NSW Supreme Court | Rule of Law Education Centre.