The great English philosopher, John Locke, wrote a revolutionary book called Two Treatises of Government. It was most surely revolutionary. First published anonymously a year after the Glorious Revolution of 1688, it was assumed to be an ex post justification for the revolution that resulted in James II abdicating.
In fact, it was only discovered in about 1945 that Locke wrote the book at least ten years prior to the Glorious Revolution; rather than an ex post justification for the Revolution, it had fuelled the sentiment among the English ruling class which led to the revolution that overthrew the Roman Catholic Stuart monarch.
After their coronation in 1689, Prince William and Princess Mary of Orange signed the English Bill of Rights into law. For the first time ever, that law made the British monarch subject to the laws of England.
Locke’s book was indeed revolutionary for it declared that, since all men are created equal, with equal rights, a government must first obtain their consent before it can exercise the powers of government. Locke’s republican scheme of government by representation – one that sought to secure what is naturally right – resonated with the political leaders of the British colonies in America. Its principles, so eloquently expressed by Jefferson in the 1776 Declaration of Independence, were woven into that nation’s Constitution.
Locke’s practical wisdom spread even further. In 1897, Edmund Barton, the Leader of the Australian Constitutional convention, articulated a federal scheme for the British colonies in Australia that united a federal distribution of powers found in the United States Constitution with a system of responsible government inherited from London.
Unlike the earlier 1891 convention, each of the five participating colonies in the 1897 convention passed a uniform law that required the convention delegates be elected, thus incorporating the principle of ‘consent of the governed’. That principle arose again in the clause that required that the draft Constitution approved by the convention be then approved in colonial referendums.
The convention was aware that the monarch’s representative, the Governor-General, might seek to exercise powers as if he was a monarch. During the convention, it was suggested that wherever in the Constitution the Governor-General was to do an act, the clause should state that he must first obtain ministerial advice. Edmund Barton explained that the days when the monarch could act without ministerial advice were long gone in England and the draft Constitution was written to prevent it happening. Not one delegate, almost half of whom were lawyers and eleven Queens Counsel, disagreed with Barton’s statement of principle.
That view had been expressed almost twenty years previously by the scholar and Clerk of Westminster Parliament, Thomas Erskine May. The days of absolute monarchs who ruled by the prerogative and without law was well and truly over. The power of the Crown had been replaced with the consent of the governed, by the people. From that moment, it could be said that the monarch reigned, but did not rule.
When Kerr dismissed Whitlam, he seized a power from the House of Representatives that was denied to him. Those today who talk enthusiastically of the Governor-General seizing control and stabilising the ship are no friends of democracy. When, in their ignorance, they vest absolute powers in an unelected office holder, they would amend our republican constitution to form a dictatorship.
Most of these legal experts who speak fondly of the Governor-General’s reserve powers, do so with little or no knowledge of the political scheme they toy with. The professors of law who taught them about the reserve powers of governors, learnt of them from the Australian lawyer, Herbert Vere Evatt. When Evatt sought to explain the source of the Governor-General’s reserve powers, he pointed to the very clause exhibiting the drafting technique that Barton had explained previously denied the Governor-General any powers. Evatt’s ignorance of the republican scheme underpinned by the Constitution led him into error, one that even a cursory reading of the 1897 debates would have cured.
Zealots in the Australian Republican Movement regularly demand that Australia become a republic when all they really want is to remove the constitutional links to the monarch. Those opposed to that idea do not so much defend the Constitution as defend the monarchy and the Governor-General as head of State, while implicitly defending the reserve powers doctrine that Kerr relied on.
Is it only a paradox that there are Australian lawyers supporting both sides of that argument who happily describe our constitution as a ‘constitutional monarchy’, unaware that that term was coined as a synonym for republic after the adverse experience of Cromwell’s republic? More likely, Australian lawyers hold the same opinions as those they learnt as students from professors who read the law literally, with little or no political science.
Those opinions are so ingrained that the learned now are incapable of objectively examining ones that run counter to the received wisdom. I was reminded of this home truth when reading the recent debate about our Constitution and the Governor-General. In his An Essay Concerning Human Understanding, John Locke appeared to identify the cause as age-related:
Would it not be an insufferable thing, for a learned professor, and that which his scarlet would blush at, to have his authority of forty years’ standing, wrought out of hard rock, Greek and Latin, with no small expense of time and candle, and confirmed by general tradition, and a reverend beard, in an instant overturned by an upstart novelist? Can anyone expect that he should be made to confess, that what he taught his scholars thirty years ago was all error and mistake; and that he sold them hard words and ignorance at a very dear rate.
In fact, Locke was merely repeating the wisdom of Aristotle whom he held in high esteem. Aristotle traced the source of untrue opinion to what he referred to as the academies. We, today, call them universities.
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