The Philistine

Given Back as a Gift That Which Was Taken

A bastion of liberty is rising in rural Victoria, a vast castle complex known as the “Shadlands”. Right now it’s still pretty hard to find on a map, but you can tour it online wherever you can get an internet connection. Just look for the videos with the kooky dad in the cosplay armour, and you’re there. Medievalist, novelist, sword expert and pop culture commentator Shad M. Brooks is building his castles (three of them) in real time on his Shadlands YouTube channel. With a little help from his family (especially Grandpa Jack) he’s already built the first structure: a dunny.

Salvatore Babones appears in every Quadrant.
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So far, Mr Brooks hasn’t said a word on his YouTube channel about planning permission, water rights, native title, endangered species, fire management, accident insurance, or koalas, so one can only hope that Grandma Jane is a solicitor. Then again, at the rate castles get built, maybe Brooks can train one of his five kids for the job. Melbourne Law beckons.

In the meantime, those kids (the “Shadlings”) are picking up some very practical skills. They’re planting trees, building fences, and (somewhat anachronistically for a Medieval castle project) wiring sockets. The family has even built a “sword guillotine” from scrap wood. A sword guillotine turns out to be a broadsword on a hinge that swings down like a railway crossing gate to slice through whatever unfortunate fruit (or neck) happens to be on the chopping block. Lest one question the practical value of such a device in twenty-first-century Victoria, Brooks has published several educational guillotine videos on his main YouTube channel, Shadiversity. Spoiler alert: a well-tempered Medieval broadsword will cleave just about anything.

To be fair, most things aren’t designed to be guillotined—but what kid wouldn’t want to see a coconut cut in two? If you can pull the cord yourself, all the better. While Brooks’s Shadiversity is a serious (or sometimes not-so-serious) sword-oriented YouTube channel with more than a million subscribers, his Shadlands channel is all about the kids. That was clear from the beginning. The channel trailer shows the five Shadlings roasting marshmallows and mugging for the camera, behind which Brooks’s wife is safely ensconced. Brooks’s four boys are … energetic. They leave his young daughter struggling for attention. But don’t worry: she promises, “In other videos, you’ll see me in a much … you’ll see me wearing a much pretty … much pretty dresser than this.” No doubt we will.

Brooks’s Shadlings seem to be growing up proudly self-reliant in the Victorian countryside. It’s hard to imagine that they suffered much from Victoria’s six coronavirus lockdowns, or that Dan Andrews sent the state police out to the Shadlands to arrest Brooks’s children for not wearing masks. Safe behind their castle walls (or in their newly built dunny), they won’t have to worry too much when Andrews uses the Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 to suspend habeas corpus. They can just pull up the drawbridge and wait things out. Like the French at the end of Monty Python and the Holy Grail, they’ll be free to blow their noses at Dictator Dan and fart in his general direction.

Most people associate Medieval Europe with filth, ignorance and the Black Death. No doubt that was the most of it. But it was also an era of extraordinary freedom for anyone lucky enough to own a bit of land and a cow or two. That includes women: the European Middle Ages may have been the first time in human history when teenage girls were generally free to choose their own mates. In Merrie Olde England, more than anywhere else, ordinary people could live how they chose. They even made their foreign kings—from Canute the Dane to Bad King John—issue charters promising to respect their rights to life, liberty and the pursuit of happiness.

Go to any law school in Australia, and they’ll either teach you that Magna Carta is the fount of English liberty, or teach you that Magna Carta was a meaningless elite compact that was rescinded before the ink was dry on the parchment. Both views are ahistorical, and both are wrong. Magna Carta wasn’t a new civil law for the English nation; it was an acknowledgment by the King that he had to govern by the existing common laws of the English nation. Though unwritten, those laws were well known to the English people, who expected their monarchs to abide by and enforce them. The barons didn’t rebel against John because he was an ineffective absolute monarch; they rebelled against him because he was a transgressive constitutional monarch. The fact that the constitution in question had never been written down is irrelevant.

Yet Australians have caught the civil law bug, believing their individual liberties to derive from their own 1901 Constitution—and the power it confers on Parliament to make laws with regard to “external affairs”. Consult the Attorney-General’s office or the Human Rights Commission, and they will both tell you the same thing: that Australian freedoms derive from the 1966 International Covenant on Civil and Political Rights, which came into force in Australia on November 13, 1980. Since that auspicious date, Australians have been the beneficiaries of all the rights and privileges that can be bestowed on a benighted people by the good will of the United Nations General Assembly. Before 1980: the gulag.

This is cart-before-the-horse thinking, the kind that doesn’t end up well for the horse. But Australian constitutionalists embrace it, looking to Parliament (and Parliament alone) to legislate their freedoms. They seem not to realise that their ancestors spoke freely before November 13, 1980—and indeed before January 1, 1901—and enjoyed many other antique freedoms besides. They enjoyed freedom of movement, the freedom to farm, and the freedom to worship as they pleased. They even retained the ancient English freedom to keep and bear arms, until they let it be legislated away in 1996. The United Nations General Assembly has yet to weigh in on that, although the 1966 Covenant does at least provide that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”—except when posting about coronavirus protests on Facebook.

Americans, of course, retain the ancient freedom to keep and bear arms, and although the Second Amendment to the American Constitution calls this freedom a “right”, that is mere linguistic conflation. The Second Amendment clearly does not confer on Americans the right to a weapon, in the sense that the Sixth Amendment gives them the right to a speedy trial and the Social Security Act gives them the right to a pension. The Second Amendment leaves Americans free to keep and bear arms, as their English forebears had always been free to keep and bear arms. To borrow the language of the First Amendment, “Congress shall pass no law” to infringe this pre-existing freedom. The freedom was already there. Always was, always will be.

The American freedom to keep and bear arms had been affirmed exactly one century earlier in England’s own Bill of Rights—at least, for Protestants. No one wanted to run into a well-armed Catholic in seventeenth-century England, let alone a Muslim. (Some things never change.) But as the well-trained London barristers of 1689 made clear, the English Bill of Rights was promulgated by the Lords Spiritual and Temporal and Commons “for the vindicating and asserting their ancient rights and liberties”, not for the positive enactment of new civil law. It didn’t establish English liberties; it recognised them.

Australian constitutionalists routinely disparage the American Bill of Rights, which they just as routinely misunderstand. The misunderstanding is no surprise: most of them were educated in law schools, and you can’t expect much good from those (one respectfully reserves judgment on the ancient Inns of Court). Being lawyers, they think the Bill of Rights empowers courts. In a roundabout way, it does. But the real purpose of a properly drafted bill of rights isn’t to empower the courts. It’s to disempower the legislature.

Fortunately or unfortunately (depending on your point of view), there was little in the English constitution to prevent Parliament from disarming its constituents, and Australians put nothing in theirs to prevent the same. Thus when Dan Andrews is re-elected in November, those Victorians who still believe in freedom will have no choice but to retreat to their castles to wait things out. That’s what our Medieval ancestors did, and things worked out all right for them. Eventually. Just make sure you have a dunny.

12 thoughts on “Given Back as a Gift That Which Was Taken

  • Salvatore Babones says:

    Hey, it’s not October yet!

  • DougD says:

    Victorians [like Queenslanders] are the beneficiaries of various human rights conferred by their state governments’ Human Rights Acts. Eg the Victorian Act declares that a person must not be treated in a degrading way. But it’s just so much wind. A Victorian cannot enforce any government-conferred human right. The Act did not prevent police handcuffing the pregnant Zoe Buhler in front of her family and arresting her for the thought-crime of calling on people to publicly protest the Covid lockdown dictates of the government.

  • Botswana O'Hooligan says:

    We airline people found out to our dismay in 1989 that the only “freedom” an Australian enjoys is the freedom of religion and that’s doubtful for one would assume that the freedom of religion allows one to discuss religion or air ones opinion but Israel Felaou discovered that the freedom of religion isn’t correct either. As for our basic human right to own anything P.M. Hawke started to set in train legislation to take our homes and assets and of course these past years have shown us exactly what our basic human rights are and what the constitution does for us, bugger all, for in effect we are in a Gulag and have no rights or freedoms. Where were all the legal people, the human rights people, the Burnsides et al these past years and why weren’t they vociferous as they were in the case of illegal immigrants or our indigenous people.

  • Peter OBrien says:

    Very interesting article Salvatore. I make a similar point in my book Villain or Victim, i.e, that there is a set of fundamental individual rights (freedom of speech, freedom of association, equality before the law etc) which we inherited from the common law of Great Britain – not bestowed on us by UN covenants. Because they are based on common law, we take them for granted at our peril. Governments can legislate them out of existence or can dispense with them by means of regulation to meet unusual circumstances. We all know how his played out during the WuFlu, both here and more egregiously in Canada when Trudeau invoked anti-terrorism provisions against legitimate protestors.
    Because we do not have a bill of rights, our last line of defence against such over-reach rests in the reserve powers of the Governor-General. In particular his power to refuse assent to a bill (which should also extend to regulations that should be processed through the Executive Council). Unfortunately, the Left have so demonised these powers it is unlikely any future Governor-General will have the courage to use them when necessary (even if he does understand them – increasingly unlikely). We need to educate the people that the Governor-General is not a mere figurehead. And we need to rehabilitate the reserve powers and insist that Sir John Kerr acted judiciously, effectively and constitutionally.

  • Geoff Sherrington says:

    Nice article, Salvatore.
    Life would be so much better if we could find real, productive, wealth-generating work for that large portion of our populace who are paid to tell others what to do, whether the populace wants them to, or not.
    CAUTION: Advert follows. Those interested in the scientific aspects of the measurement of temperatures, as in those used to create a story about Global Warming, might like to read a blog essay with my mate Tom Berger, just published. We seek to get this material before as many influential people as we can. Geoff S

  • ianl says:

    Yes, Common Law “rights” are ephemeral. The High Court in the Peter Ridd case showed that very clearly when it decided that Peter Ridd had the right to speak his mind in disgreement in his workplace- but only if that didn’t offend anyone else under the workplace agreement.

    I remember seeing a mobile clip taken in suburban Melbourne by a man’s wife from inside the house when he went outside about 10pm to put the garbage bins out for next-morning collection. A patrol car was onto him in a blink (undoubtedly notified by a weasel neighbour) and verbally hammered him for stepping out onto the footpath with the bins. When he said exasperatedly that he knew his “rights”, the police replied that he didn’t have any rights … and they were correct.

    Common Law only works if those in power let them through, time by time. Called picking & choosing.

    • Salvatore Babones says:

      You guys should never have given up your common law freedoms … as Winston Churchill said, “The American Constitution, with its checks and counterchecks, combined with its frequent appeals to the people, embodied much of the ancient wisdom of this island.” Limited government is the only guarantee of individual liberty.

  • Sindri says:

    Interesting article Salvatore. The longer I go on the less faith I have in the efficacy of entrenched rights to protect – reliably – anything at the margins. Your reference to the second amendment is a case in point. Does anyone think that a differently constituted, solidly “liberal” bench would have come down with New York State Rifle & Pistol Association, Inc. v. Bruen or District of Columbia v. Heller? I doubt it. Full disclosure Salvatore: I don’t share your views about gun control. My cynical point, however, is that the interpretation of entrenched rights is always liable to be a moveable feast, especially at the margins, depending on the values and views of the judges interpreting them.

    • Salvatore Babones says:

      Thanks for writing. Personally, I’m not in favor of individual gun ownership, and I have never owned a gun. But I am in favor of the preservation of common law liberties. Good or bad, the right to keep and bear arms came down to us from the Anglo-Saxons. And any right we’ve inherited, we should keep. We’re never going to get any new ones!

  • Stephen Ireland says:

    Salvatore, I wonder if Klaus Schwab was thinking of ancient freedom when he wrote that “. . . on the basis of raised awareness and shared narratives, we must embark on restructuring our economic, social and political systems to take full advantage of the opportunities presented” by his Fourth Industrial Revolution.

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