The Concept of Freedom
THE CONCEPT OF FREEDOM
As with early writings of democracy, the concept of freedom was first written about in early Greece, but the democracy and the freedom spoken about at that time was restricted only to the upper levels of free men. Women were considered to be the chattels of men, as they were, in certain ways, right up until the last century. In around 340 BC Aristotle (pictured right) said this about freedom:
"Another is that a man should live as he likes. This, they say, is the privilege of a freeman, since, on the other hand, not to live as a man likes is the mark of a slave. This is the second characteristic of democracy, whence has arisen the claim of men to be ruled by none, if possible, or, if this is impossible, to rule and be ruled in turns; and so it contributes to the freedom based upon equality."
It is probable that earlier civilisations, and in particular the Sumerian Civilization which began around 6000 years ago, had similar concepts of freedom and democracy. This civilisation had the oldest known written laws which date back to 2400 B.C. when the Code of Er-Nammu was written on stone tablets. We do know that earlier laws did exist, but no tablets have as yet been unearthed. This civilisation was different from any of the other earlier civilisations in that in around 2500 B.C it had a female ruler named Kubaba, who is the first known female monarch ever.
However, the modern concept of freedom and liberty as we know it began, not in France nor in the United States of America, as is often thought, but over a thousand years ago in England.
The rights of the individual became an integral part of English life under the Saxon kings. Alfred the Great (848/9 - 899) (pictured left) set out in writing a set of laws based on the Ten Commandments. This can be said to be the first of the People’s Charter in that King Alfred set out to protect the rights of the people but the first historically recognised charter formally bestowed by the King to the people came 100 years before Magna Carta. That was the Charter of Liberties which was proclaimed by Henry I of England, the son of William the Conqueror, and issued upon his accession to the throne in 1100 A.D.. It bound the King to certain laws regarding the treatment of nobles, church officials, and individuals and whilst these laws and commitments related only to freeman and mainly to nobles, it was a major step along the long pathway of the move away from the absolute rule of kings. That pathway took over 800 years for the concept of freedom to develop into something like the freedoms we, in Australia, enjoy today.
We should always remember that our concept of freedom is the result of protests, riots, insurrection - which Magna Carta was, and civil wars which took place in England and which was later gifted to those countries it invaded or settled. Therefore, the freedoms and the democracy we in Australia enjoy as our right today, originated as British freedoms and British democracy.
As the 19th century poet, William Wordsworth, wrote in 1815:
It is not to be thought of that the Flood
Of British freedom, which, to the open sea
Of the world's praise, from dark antiquity
Hath flowed, 'with pomp of waters, unwithstood,'
Roused though it be full often to a mood
Which spurns the check of salutary bands,
That this most famous Stream in bogs and sands
Should perish; and to evil and to good
Be lost for ever. In our halls is hung
Armoury of the invincible Knights of old:
We must be free or die, who speak the tongue
That Shakespeare spake; the faith and morals hold
Which Milton held. In everything we are sprung
Of Earth's first blood, have titles manifold.
Under the Crown, English law developed in a different manner to that which existed in Europe. In Britain there are two principal categories of law – Common and Statute. Common Law is based on rulings by judges (court judgments) which become precedents for future laws. Statute Laws are laws enacted by parliaments. Generally, but not always, Common Law takes precedence over Statute Law.
The principle of Common Law is to protect the freedom of the individual. Lord Denning (1899-1999) was one of Britain’s most eminent judges and he had written:
“In the English way of life, the freedom of the individual must not be impaired except so far as absolutely necessary. In the totalitarian way of life, the freedom of the individual must always give way to the interests of the State.” He also said: “What matters in England is that each man should be free to develop his own personality to the full: and the only duties which should restrict this freedom are those which are necessary to enable everyone else to do the same.”
The laws of England became the laws of Australia with the arrival of a British Fleet in 1788. This arrival occurred because, in 1775, the American war of independence commenced which meant that Britain was not able to transport its convicts over there and 1779 began looking for other places suitable to establish a convict settlement. The British government eventually settled upon Botany Bay in Australia, having been surveyed in 1770 by Captain James Cook, as a potentially suitable place and in 1787 eleven ships carrying over 1500 men, women and children comprising soldiers, freemen and convicts, left Portsmouth for Australia, a journey of 252 days covering over 24 000 kilometres, arriving at Botany Bay on the 20th of January 1788.
Shortly after arriving, on January the 26th, Governor Arthur Phillip raised the British flag on Australian soil and with that action, the principles of British law and British democracy became the law in what was to become known as Australia.
The laws of England developed differently from the laws of Europe. In the 5th century AD, England was invaded by the tribes we call Anglo Saxons from what is now northern Germany and Denmark. These regions had not been conquered by the Romans and thus did not fall under Roman law. Therefore, as English law developed along its own pathway into Common and Statute law, European countries developed their own codes based on Roman law.
This means that English courts developed the ‘adversarial system’ where the judge acts as a referee between the prosecution and the defence with the aim of getting to the truth through the open competition between the lawyers for both parties, whereas most European countries maintained the ‘inquisitorial system’ where the judge is actively involved in determining the conduct of the trial, deciding what witnesses to call, the order in which they are to be heard and also questioning them directly.
The United Kingdom faced a great problem when it became deeply entrenched into the European Union through various treaties it signed. Under the British constitution the laws of the United Kingdom are sovereign and its courts are independent but according to the Treaty of Rome (1957) it (the EU) and its laws are superior to all laws of individual nation states. This created a conflict which was never really resolved and will continue to be a problem even though the UK has now departed from the European Union. However, that conflict had no relevance in Australia where its laws remained intact.
In the 19th century, as the British settlement in Australia expanded and populated new areas, the central government in London created new colonies and then parliaments to govern them, beginning in 1823 with the New South Wales Act 1823 (UK), although retaining power through the governors who were appointed by and were representatives of the British government.
As Australia developed into a vibrant and prosperous country, it was still not a nation but a group of six separate colonies. In 1889 the UK Government commissioned Major-General Edwards to report on the defence of the Australian colonies as there were fears of invasion by Germany or Russia. The closest major British defence force was in India which would have taken several months to mobilise and reach Australian shores. Accordingly, the Edward’s report called for the federation of the forces of all Australian colonies.
This led to a Federation Conference held in Melbourne in 1890 attended by representatives from all colonies. A series of constitutional conventions were held leading to the union of the Australian colonies into one nation under the Commonwealth of Australia Constitution Act 1900 (UK) in January 1901.
It should be noted that, whilst the authority and the impetus to federate into a sovereign nation was derived from the British parliament, the Australian Constitution was drafted by Australian delegates and voted upon in a series of referendums by all Australians who were eligible to vote at the time. This was in the spirit of freedom inherited by Australia from Britain and in this manner, Australia became entirely independent of governance from the British government and the British parliament.
Those Australians who drafted the Constitution together with those who voted for it did not want to hand any more power than necessary to politicians. Therefore, they opted to become a constitutional monarchy continuing under the Crown of the United Kingdom. This meant that the monarch of Great Britain became the monarch of Australia. However, the king or queen, as monarch of Australia, was subject to advice from the Australian government and not from that of the United Kingdom. This was in line with the spirit of freedom the British bestowed upon Australia.
Of course, there were instances in which the law and the spirit of freedom were not upheld as they should have been. The independent way of life hitherto enjoyed by the Aboriginal natives was curtailed. The tracks they used for foraging and hunting were taken over by white settlers and many injustices were done which can never be undone.
The King, George III, and his government issued Governor Philip with instructions on the 25th April 1787. These instructions included the requirement that:
“You are to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them or give them any unnecessary Interruption in the exercise of their several occupations. It is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.”
Alongside is an 18th century oil painting of George III by the school of Johan Zoffany. This now hangs in the ANF Library in Sydney. The original Zoffany painting is in the Royal Collection.
Alongside is an 18th century oil painting of George III by the school of Johan Zoffany. This now hangs in the ANF Library in Sydney. The original Zoffany painting is in the Royal Collection.
Whilst the colonial governments, in the main, attempted to abide by the tenor of these instructions, it did not prevent the native population being moved out of their traditional lands.
Today, all Australians are now considered equal one to another. All, whatever their colour, their religion or their social standing or whether they are rich or poor, have the same rights under the law. All are free and all those of age, can vote.
Whilst nothing is perfect, we all have the right to speak out, to lobby politicians or to challenge the government through the courts and, when the time comes, make our feelings known via the ballot box at an election. The past can never be undone but we can all work together towards a better future.
It should always be remembered that the Crown, which is at the heart of the Australian Constitution, is not like a magic wand that will be automatically waved to block errant governments from legislating to curtail the freedom of the people. No. The Crown under our system of constitutional monarchy is there to ensure that individuals have the right to stand up against any intrusion of their rights under the law either by way of peaceful protest, by appealing through the law or by the ballot box at election. However, if the people sit back and allow their liberty to be curtailed, then it will be. It is up to each Australian, whether born here or naturalised, to protect his or her individual rights. Rights which have been hard won over centuries of conflict.
END