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Canadian politicians wished to find a cheap way out of their long-term commitments to Aboriginal people. Christian churches sought government support for their missionary efforts. The schools were part of the colonization and conversion of Aboriginal people, and were intended to bring civilization and salvation to their children.
These were the rationales that were used to justify making the lives of so many children so unhappy. The whole part of the residential school was a part of a bigger scheme of colonization. There was intent; the schools were there with the intent to change people, to make them like others and to make them not fit. These schools were part of a process that brought European states and Christian churches together in a complex and powerful manner. The history of the schools can be best understood in the context of this relationship between the growth of global, European-based empires and the Christian churches.
It was an era of mass migration. Millions of Europeans arrived as colonial settlers in nearly every part of the world. Millions of Africans were transported in the European-led slave trade, in which coastal Africans collaborated. Traders from India and China spread throughout the Red Sea and Indian Ocean, bringing with them indentured servants whose lives were little different from those of slaves. The spread of European-based empires was set in motion in the fifteenth century when the voyages of maritime explorers revealed potential sources of new wealth to the monarchs of Europe.
This not only enriched the Old World, but it also unleashed an unceasing wave of migration, trade, conquest, and colonization. Although it was led initially by Spain and Portugal, this era of imperial expansion came to be directed by Holland, France, and, in the end, most stunningly by Britain. Empires were established militarily. They engaged in extensive and violent wars with one another, maintained a military presence on their frontiers, and conducted innumerable military campaigns to put down nationalist uprisings.
The benefits of empire could come directly as taxes, as precious metals, or as raw materials for industries in the homeland. Colonies often were required to purchase their imports solely from the homeland, making them a captive market. The mere presence of Indigenous people in these newly colonized lands blocked settler access to the land.
Painter, a critic of American Indian policy, observed that the United States had. They were not made to be kept, but to serve a present purpose, to settle a present difficulty in the easiest manner possible, to acquire a desired good with the least possible compensation, and then to be disregarded as soon as this purpose was tainted and we were strong enough to enforce a new and more profitable arrangement.
The outcome was usually disastrous for Indigenous people, while the chief beneficiaries of empire were the colonists and their descendants. Many of the colonies they settled grew to be among the most prosperous societies in the late nineteenth- and early twentieth-century world. As they expanded, they continued to incorporate Indigenous peoples and their lands into empires.
Colonialism remains an ongoing process, shaping both the structure and the quality of the relationship between the settlers and Indigenous peoples. In the fifteenth century, the Roman Catholic Church, building on the traditions of the Roman Empire, conceived of itself as the guardian of a universal world order.
In return, the Spanish were expected to convert the Indigenous peoples of the Americas to Christianity. On the basis of this concept, the British government claimed ownership of the entire Australian continent. There, the doctrine of terra nullius remained the law until it was successfully challenged in court in True ownership, they claimed, could come only with European-style agriculture.
Underlying these arguments was the belief that the colonizers were bringing civilization to savage people who could never civilize themselves. European writers and politicians often arranged racial groups in a hierarchy, each with their own set of mental and physical capabilities.
Beneath the Europeans, in descending order, were Asians, Africans, and the Indigenous peoples of the Americas and Australia. Some people held that Europeans had reached the pinnacle of civilization through a long and arduous process. In this view, the other peoples of the world had been held back by such factors as climate, geography, and migration. Through a civilizing process, Europeans could, however, raise the people of the world up to their level.
This view was replaced in the nineteenth century by a racism that chose to cloak itself in the language of science, and held that the peoples of the world had differing abilities. Some argued that, for genetic reasons, there were limits on the ability of the less-developed peoples to improve.
Pragmatism, Law, and Morality
In some cases, it was thought, contact with superior races could lead to only one outcome: the extinction of the inferior peoples. These ideas shaped global policies towards Indigenous peoples. In the year that Rosebery gave this speech, the Canadian government opened its first industrial residential school for Aboriginal people at Battleford on the Canadian Prairies. While they often worked in isolation and under difficult conditions, missionaries were representatives of worldwide organizations that enjoyed the backing of influential individuals in some of the most powerful nations of the world, and which came to amass considerable experience in transforming different cultures.
Christian missionaries played a complex but central role in the European colonial project. Their presence helped justify the extension of empires, since they were visibly spreading the word of God to the heathen. If their efforts were unsuccessful, the missionaries might conclude that those who refused to accept the Christian message could not expect the protection of the church or the law, thus clearing the way for their destruction. They might, for example, seek to have traders give fair prices and to have government officials provide relief in times of need, but they also worked to undermine relationships to the land, language, religion, family relations, educational practices, morality, and social custom.
Missionary zeal was also fuelled by the often violent division that had separated the Christian world into Catholic and Protestant churches. Both Catholics and Protestants invested heavily in the creation of missionary organizations that were intended to engage overseas missionary work. The most well-known Catholic orders were the Franciscans, the Jesuits, and the Oblates. The Oblates originally focused their attention on the poor and working classes of France, but from the s onwards, they engaged in overseas missionary work.
They could not have done this work without the support of a number of female religious orders, most particularly the Sisters of Charity the Grey Nuns , the Sisters of Providence, the Sisters of St. The British-based Church Missionary Society was also a global enterprise. It used this money to support male missionaries, unmarried females, and ordained pastors around the world. The Catholics and Anglicans were not the only European-based missionary societies to take up work in Canada. Presbyterians and Methodists, originally drawing support from the United Kingdom, undertook missionary work among Aboriginal people in the early nineteenth century.
On the coast of Labrador, members of the Moravian Brotherhood, an order that had its origins in what is now the Czech Republic, carried out missionary work from the early eighteenth century onwards. Missionaries viewed Aboriginal culture as a barrier to both spiritual salvation and the ongoing existence of Aboriginal people. They were determined to replace traditional economic pursuits with European-style peasant agriculture. They believed that cultural transformation required the imposition of social control and separation from both traditional communities and European settlements.
In short, they sought to impose the foreign and transforming world of the residential school. Colonization was undertaken to meet the perceived needs of the imperial powers. The justification offered for colonialism—the need to bring Christianity and civilization to the Indigenous peoples of the world—may have been a sincerely and firmly held belief, but as a justification for intervening in the lives of other peoples, it does not stand up to legal, moral, or even logical scrutiny.
The papacy had no authority to give away lands that belonged to Indigenous people. The Doctrine of Discovery cannot serve as the basis for a legitimate claim to the lands that were colonized, if for no other reason than that the so-called discovered lands were already well known to the Indigenous peoples who had inhabited them for thousands of years. The wars of conquest that took place to strip Indigenous peoples of their lands around the globe were not morally just wars; Indigenous peoples were not, as colonists often claimed, subhuman, and neither were they living in violation of any universally agreed-upon set of values.
There was no moral imperative to impose Christianity on the Indigenous peoples of the world. Indigenous peoples had systems that were complete unto themselves and met their needs. Those systems were dynamic; they changed over time and were capable of continued change. This universalizing of European values—so central to the colonial project—that was extended to North America served as the prime justification and rationale for the imposition of a residential school system on the Indigenous peoples of Canada. In Canada, residential schooling was closely linked to colonization and missionary crusades.
In the first decade of that century, the New England Company, a British-based missionary society, funded a boarding school operation in Sussex Vale, New Brunswick. In this their object is identical with that of every good common school. After the Canadian state was established in , the federal government began making small per-student grants to many of the church-run boarding schools.
Federal government involvement in residential schooling did not begin in earnest until the s. The following year, British Columbia was brought into Confederation by the promise of a continental rail link. Canadian politicians intended to populate the newly acquired lands with settlers from Europe and Ontario.
These settlers were expected to buy goods produced in central Canada and ship their harvests by rail to western and eastern ports and then on to international markets. Despite all these pressures, the government took a slow and piecemeal approach to Treaty making. Through the Treaties, Aboriginal peoples were seeking agricultural supplies and training as well as relief during periods of epidemic or famine in a time of social and economic transition. The education provisions also varied in different Treaties, but promised to pay for schools on reserves or teachers.
The federal government was slow to live up to its Treaty obligations. For example, many First Nations were settled on reserves that were much smaller than they were entitled to, while others were not provided with any reserve. The commitment to establish on-reserve schools was also ignored in many cases. As a result, parents who wished to see their children educated were forced to send them to residential schools. At the end of this process, Aboriginal people were expected to have ceased to exist as a distinct people with their own governments, cultures, and identities.
Women, for example, could lose status simply by marrying a man who did not have status. Men could lose status in a number of ways, including graduating from a university. First Nations people were unwilling to surrender their Aboriginal identity in this manner. Residential schooling was always more than simply an educational program: it was an integral part of a conscious policy of cultural genocide. Further evidence of this assault on Aboriginal identity can be found in amendments to the Indian Act banning a variety of Aboriginal cultural and spiritual practices. The Aboriginal right to self-government was also undermined.
The Indian Act gave the federal government the authority to veto decisions made by band councils and to depose chiefs and councillors. Over the years, the government also assumed greater authority as to how reserve land could be disposed of: in some cases, entire reserves were relocated against the will of the residents. It was in keeping with this intent to assimilate Aboriginal peoples and, in the process, to eliminate its government-to-government relationship with First Nations that the federal government dramatically increased its involvement in residential schooling in the s.
In December , J. In the following year, Nicholas Davin, a failed Conservative candidate, carried out a brief study of the boarding schools that the United States government had established for Native Americans. He recommended that Canada establish a series of such schools on the Prairies. Davin acknowledged that a central element of the education provided at these schools would be directed towards the destruction of Aboriginal spirituality. The decision to continue to rely on the churches to administer the schools on a day-today basis had serious consequences.
At various times, each denomination involved in school operation established boarding schools without government support or approval, and then lobbied later for per capita funding. When the churches concluded, quite legitimately, that the per capita grant they received was too low, they sought other types of increases in school funding. Building on their network of missions in the Northwest, the Catholics quickly came to dominate the field, usually operating twice as many schools as did the Protestant denominations.
Among the Protestant churches, the Anglicans were predominant, establishing and maintaining more residential schools than the Methodists or the Presbyterians. The United Church, created by a union of Methodist and Presbyterian congregations, took over most of the Methodist and Presbyterian schools in the mids.
Presbyterian congregations that did not participate in the union established the Presbyterian Church in Canada and retained responsibility for two residential schools. In addition to these national denominations, a local Baptist mission ran a residence for Aboriginal students in Whitehorse in the s and s, and a Mennonite ministry operated three schools in northwestern Ontario in the s and s. Each faith, in its turn, claimed government discrimination against it.
Competition for converts meant that churches sought to establish schools in the same locations as their rivals, leading to internal divisions within communities and expensive duplication of services. The model for these residential schools for Aboriginal children, both in Canada and the United States, did not come from the private boarding schools to which members of the economic elites in Britain and Canada sent their children. Instead, the model came from the reformatories and industrial schools that were being constructed in Europe and North America for the children of the urban poor.
At the Halifax Boys Industrial School, first offenders were strapped, and repeat offenders were placed in cells on a bread-and-water ration. From there, they might be sent to the penitentiary. There, the first in a series of large-scale, government-operated, boarding schools for Native Americans opened in in a former army barracks in Carlisle, Pennsylvania. The first one opened in Battleford in what is now Saskatchewan in It was placed under the administration of an Anglican minister.
Both these schools were administered by principals nominated by the Roman Catholic Oblate order. The federal government not only built these schools, but it also assumed all the costs of operating them. Recruiting students for these schools was difficult. According to the Indian Affairs annual report, in , there were only twenty-seven students at the three schools. Unlike the church-run boarding schools, which provided a limited education with a heavy emphasis on religious instruction, the industrial schools were intended to prepare First Nations people for integration into Canadian society by teaching them basic trades, particularly farming.
Generally, industrial schools were larger than boarding schools, were located in urban areas, and, although church-managed, usually required federal approval prior to construction. The boarding schools were smaller institutions, were located on or near reserves, and provided a more limited education. The differences between the industrial schools and the boarding schools eroded over time. In justifying the investment in industrial schools to Parliament in , Public Works Minister Hector Langevin argued that.
If you leave them in the family they may know how to read and write, but they still remain savages, whereas by separating them in the way proposed, they acquire the habits and tastes—it is to be hoped only the good tastes—of civilized people. The federal government entered into residential schooling at a time when it was colonizing Aboriginal lands in western Canada. It recognized that, through the Treaties, it had made commitments to provide Aboriginal people with relief in periods of economic distress.
It also feared that as traditional Aboriginal economic pursuits were marginalized or eliminated by settlers, the government might be called upon to provide increased relief. In this context, the federal government chose to invest in residential schooling for a number of reasons. First, it would provide Aboriginal people with skills that would allow them to participate in the coming market-based economy. Second, it would further their political assimilation.
It was hoped that students who were educated in residential schools would give up their status and not return to their reserve communities and families. This was never forthcoming.
University of New South Wales Law Journal
In announcing the construction of the three initial industrial schools, Indian Commissioner Edgar Dewdney said that although the starting costs would be high, he could see no reason why the schools would not be largely self-supporting in a few years, due to the skills in farming, raising stock, and trades that were being taught to the students.
The government believed that between the forced labour of students and the poorly paid labour of missionaries, it could operate a residential school system on a nearly costfree basis. The missionaries and the students were indeed a source of cheap labour—but the government was never happy with the quality of the teaching and, no matter how hard students worked, their labour never made the schools self-supporting.
Soon after the government established the industrial schools, it began to cut salaries. The government never adequately responded to the belated discovery that the type of residential school system that officials had envisioned would cost far more than politicians were prepared to fund. In the early twentieth century, chronic underfunding led to a health crisis in the schools and a financial crisis for the missionary societies. Indian Affairs, with the support of leading figures in the Protestant churches, sought to dramatically reduce the number of residential schools, replacing them with day schools.
The government abandoned the plan when it failed to receive the full support of all the churches involved in the operation of the schools. This resulted in a shortterm improvement. However, inflation eroded the value of the grant increase, and the grant was actually reduced repeatedly during the Great Depression and at the start of the Second World War.
Funding for residential schools was always lower than funding for comparable institutions in Canada and the United States that served the general population. It was not until that the federal government put in place regulations relating to residential school attendance.
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Under the regulations adopted in that year, residential school attendance was voluntary. Even without a warrant, Indian Affairs employees and constables had the authority to arrest a student in the act of escaping from a residential school and return the child to the school. It was departmental policy that no child could be discharged without departmental approval—even if the parents had enrolled the child voluntarily. The government had no legislative basis for this policy. Instead, it relied on the admission form that parents were supposed to sign. In some cases, school staff members signed these forms.
In the s, students were to be discharged from residential school when they turned sixteen. Despite this, William Graham, the Indian commissioner, refused to authorize discharge until the students turned eighteen. He estimated that, on this basis, he rejected approximately applications for discharge a year. In , the Indian Act was amended to allow the government to compel any First Nations child to attend residential school.
However, residential school was never compulsory for all First Nations children. In most years, there were more First Nations children attending Indian Affairs day schools than residential schools. During the early s, this pattern was reversed. In the —45 school year, there were 8, students in residential schools, and 7, students in Indian Affairs day schools. In that year, there were reportedly 28, school-aged Aboriginal children.
This meant that The residential school system operated with few regulations; those that did exist were in large measure weakly enforced. The Canadian government never developed anything approaching the education acts and regulations by which provincial governments administered public schools. The key piece of legislation used in regulating the residential school system was the Indian Act. This was a multi-purpose piece of legislation that defined and limited First Nations life in Canada. The Act contained no education-related provisions until There were no residential school—specific regulations until These dealt almost solely with attendance and truancy.
It was recognized by those who worked within the system that the level of regulation was inadequate. The education section of the Indian Act and the residential school regulations adopted in were each only four pages in length. It is also apparent that many key people within the system had little knowledge of the existing rules and regulations.
In , an Indian agent in Hagersville, Ontario, inquired of departmental headquarters if there had been any changes in the regulations regarding education since the adoption of a set of education regulations in His question suggests he was completely unaware of major changes to the Indian Act regarding education that had supplanted previous regulations in The system was so unregulated that in , after Canada had been funding residential schools for years, Indian Affairs Deputy Minister J.
From the s onwards, residential school enrolment climbed annually. According to federal government annual reports, the peak enrolment of 11, was reached in the —57 school year. Most of the residential schools were located in the northern and western regions of the country. With the exception of Mount Elgin and the Mohawk Institute, the Ontario schools were all in northern or northwestern Ontario. The only school in the Maritimes did not open until The number of schools began to decline in the s.
Between and , for example, ten school buildings were destroyed by fire. Prior to that time, residential schooling in the North was largely restricted to the Yukon and the Mackenzie Valley in the Northwest Territories. Large residences were built in communities such as Inuvik, Yellowknife, Whitehorse, Churchill, and eventually Iqaluit formerly Frobisher Bay.
This expansion was undertaken despite reports that recommended against the establishment of residential schools, since they would not provide children with the skills necessary to live in the North, skills they otherwise would have acquired in their home communities. Many of the early advocates of residential schooling in Canada expected that the schools would take in both Aboriginal children who had status under the Indian Act in other words, they were Indians as defined by the Act as well as Aboriginal children who, for a variety of reasons, did not have status. There was a strong concern that if the federal government began providing funding for the education of some of the children the provinces and territories were responsible for, it would find itself subject to having to take responsibility for the rest.
As late as , only Inuit students were receiving full-time schooling in the North. It was only at this point that large numbers of Inuit children began attending residential schools. The impact of the schools on the Inuit was complex. Some children were sent to schools thousands of kilometres from their homes, and went years without seeing their parents. In other cases, parents who had previously been supporting themselves by following a seasonal cycle of land- and marine-based resource harvesting began settling in communities with hostels so as not to be separated from their children.
Because of the majority of the Aboriginal population in two of the three northern territories, the per capita impact of the schools in the North is higher than anywhere else in the country. And, because the history of these schools is so recent, not only are there many living Survivors today, but there are also many living parents of Survivors. For these reasons, both the intergenerational impacts and the legacy of the schools, the good and the bad, are particularly strongly felt in the North.
By , the Indian Affairs residential school system, starved for funding for fifteen years, was on the verge of collapse. One was to expand the number of Indian Affairs day schools. From — 46 to —55, the number of First Nations students in Indian Affairs day schools increased from 9, to 17, The integration policy was opposed by some of the church organizations. Roman Catholic church officials argued that residential schooling was preferable for three reasons: 1 teachers in public schools were not prepared to deal with Aboriginal students; 2 students in public schools often expressed racist attitudes towards Aboriginal students; and 3 Aboriginal students felt acute embarrassment over their impoverished conditions, particularly in terms of the quality of the clothing they wore and the food they ate.
From the s onwards, residential schools increasingly served as orphanages and child-welfare facilities. They failed to provide their students with the appropriate level of personal and emotional care children need during their childhood and adolescence. This failure applied to all students, but was of particular significance in the case of the growing number of social-welfare placements in the schools.
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The residential school environment was not a safer or more loving haven. These children spent their entire childhoods in an institution. The closure of residential schools, which commenced in earnest in , was accompanied by a significant increase in the number of children being taken into care by child-welfare agencies. In , the federal government drastically restructured the residential school system by dividing the schools into residences and day schools, each with a principal or administrator. They were, however, no longer directly responsible for the facilities. Four small hostels were also operated in the western and central Arctic.
The last of these, located at Cambridge Bay, did not close until the late s. Having assumed control over the southern Canadian schools in , the federal government commenced what would prove to be a protracted process of closing the system down. According to the Indian Affairs annual report for —69, the department was responsible for sixty residences.
Two years later, the number was down to forty-five. By then, First Nations communities had already taken over one residential school. In the summer of , parents of children at the Blue Quills, Alberta, school occupied the school, demanding that its operation be turned over to a First Nations education authority.
They took this measure in response to reports that the school was to be turned into a residence and their children were to be educated at a nearby public school. The Blue Quills conflict was the result of both long-standing local dissatisfaction with the administration of the school and First Nations opposition to the policy of integration. The Christie residence in Tofino, British Columbia, was also operated briefly by an Aboriginal authority. The federal government, however, remained committed to the closing of the facilities. Between and , the last seven residences in southern Canada were closed.
Starting in the s, territorial governments, in which former residential school students were serving as cabinet ministers, also began expanding the number of day schools as part of a campaign to close residential schools in the North. The last large hostel in the Yukon closed in The closing of the schools did not mark the end of the history of residential schooling in Canada.
By the s, former students had begun to make Canadians aware of the tremendous harm that the residential school experience had caused to Aboriginal people and Aboriginal communities. As educational institutions, the residential schools were failures, and regularly judged as such. In , former Regina industrial school principal R. Heron delivered a paper to a meeting of the Regina Presbytery of the Presbyterian Church that was highly critical of the residential school system.
From —41 to —60, Many principals and teachers had low expectations of their students. Wikwemikong, Ontario, principal R. Good and moral as they may be, they lack great mental capacity. Mount Elgin principal S. Much of what went on in the classroom was simply repetitious drill. The classrooms were often severely overcrowded. In the minds of some principals, religious training was the most valuable training the schools provided.
In , Brandon, Manitoba, principal T. After we had washed and dressed, we headed for the chapel to attend Low mass which was always held at 7 a. Not surprisingly, many of those who succeeded academically followed careers in the church. Coqualeetza graduate Peter Kelly became a Methodist Church minister.
Emmanuel College graduate Edward Ahenakew became an Anglican minister.
Others worked for government or taught school. Joseph Dion, a graduate of the Onion Lake school, taught school for many years in Saskatchewan. Still others pursued business and professional careers. A graduate of the Mohawk Institute, N. Despite these successes, little encouragement generally was offered to students who wished to pursue further education. For many students, classroom life was foreign and traumatic.
I took Kindergarten twice because of what happened to me. For much of her time in school, she was frightened or intimidated. I stood up, never got to answer what they were saying when they sat me down. Since the s, Indian Affairs had required residential schools to adopt provincial curricula. Andrew Moore, a secondary school inspector for the Province of Manitoba, told the committee members that Indian Affairs took full responsibility for all aspects of First Nations education, including curriculum.
In , D. The reasons for this failure are clear: the aims of education set forth by the Department are thoroughly confused, the curriculum is inappropriate, and many current practices of the system are not only ill-conceived but actually harmful. The decision to leave curriculum to provincial education departments meant that Aboriginal students were subjected to an education that demeaned their history, ignored their current situation, and did not even recognize them or their families as citizens.
This was one of the reasons for the growing Aboriginal hostility to the Indian Affairs integration policy. An examination of the treatment of Aboriginal people in provincially approved textbooks reveals a serious and deep-rooted problem. In response to a recommendation that textbooks be developed that were relevant to Aboriginal students, Indian Affairs official R.
Students also noted that the curriculum belittled their ancestry. And every single day we were reminded. Many students could not identify with the content of the classroom materials. Some students said that the limits of the education they had received in residential school became apparent when they were integrated into the public school system. Walter Jones never forgot the answer that a fellow student at the Alberni, British Columbia, school was given when he asked if he would be able to go to Grade Twelve.
Some northern schools developed reputations for academic success. Grandin College in Fort Smith was established originally to recruit young people for the Catholic ministry. A new principal, Jean Pochat, decided to focus on providing young men and women with leadership training. To this day we still talk about them… They treated us as ordinary people.
We had never experienced this sort of attitude before and it was, in a way, liberating to be with new teachers that treated you as their equal. Specific teachers were remembered with gratitude. When Roddy Soosay lived in residence, he attended a local public school. He credited his high school principal at the Ponoka, Alberta, public school for pushing him to succeed.
There was one staff member to whom she could tell all her problems. Other students were able to concentrate on their studies. Frederick Ernest Koe said that at Stringer Hall in Inuvik, he devoted all his energies to his school work. My, the fundamental values and good example I had before I went to residential school by my grandfather and my parents, and all the old people on the reserve where I grew up are the ones who made me a good student. Student education was further undermined by the amount of work the students had to do to support the schools.
Because Indian Affairs officials had anticipated that the residential schools would be self-sufficient, students were expected to raise or grow and prepare most of the food they ate, to make and repair much of their clothing, and to maintain the schools. Often, as many students, teachers, and inspectors observed, the time allocated for vocational training was actually spent in highly repetitive labour that provided little in the way of training. Rather, it served to maintain the school operations.
"Equality": The American Way of Truth and Justice
As his home is searched, Dabba asks whether such assets, if found, would be returned to the bank. Hailed by police and politicians worldwide as an indispensable crime-fighting tool, civil forfeiture also arouses misgivings. In contrast, this paper explores the possibility of mounting a heterodox defence, a political-ethical rationale.
My interest in civil forfeiture has particular regard to its value in understanding the sovereign status of a state like the Australian Commonwealth, and its relation, qua sovereign power, to its citizens. I do not treat mainly Commonwealth civil forfeiture law doctrinally. This tradition will be presented through a sketch of the natural law doctrine of its most consistent early-modern exponent, Samuel Pufendorf. This sketch may have an interest and utility for readers independently of the application I make of it here.
Fulfilment of that duty will be seen to require a system and ethic of jurisdictionally diferentiated ofices. A civil state requires the delineation of office-based positive purposes and responsibilities — including a duty to protect its capacity to protect — and oversight and restraint of its own agencies.
Legal and political theorists will ask why I do not follow accepted practice and treat these ostensibly familiar ideas notably, security and separation of powers as part of the stock-in-trade of liberal, or perhaps conservative, philosophies, especially their rule- utilitarian edges. The very idea of setting out to account for civil forfeiture in terms of civil prudence may therefore seem quixotic.
By way of a down payment, let me offer three remarks as to why constructing a rationale for civil forfeiture might call for thinking outside the box of liberal democracy,  even at the cost of entering into ostensibly morally uncongenial territory. First, my description of Australian civil forfeiture law and its official rationale suggests that this legal instrument unavoidably solicits reference to a conception of the Commonwealth and its prerogative powers which differs from liberal-democratic conceptions of the state.
Rather than shying away from this discrepancy between civil forfeiture and these bienpensant conceptions, civil prudence openly acknowledges and constructs a legitimacy for the non-liberal and non-democratic component of modern states: vis, their component of civil-sovereign power. If civil prudence is better equipped than liberal political or jurisprudential theories to provide a limited warrant for civil forfeiture law, it is because civil prudence is better able to deal with its sovereignty dimension.
Summary of the Final Report of the Truth and Reconciliation Commission of Canada
Civil prudence, I will argue, can articulate both the delimited core purposes of civil forfeiture and set limits to its uses by reference to those purposes; that is, independently of liberal notions of limits to state power. A second possible advantage of having recourse to the civil prudential tradition, again in contrast to civil liberties-based versions of liberalism, is that it offers ways of conceptualising limits to civil forfeiture which chime in both with the way state officials actually think and work, and with some targets of unofficial criticism by civil libertarian organisations and academics.
My hope is that the civil prudence paradigm might prove serviceable to both officials who administer civil forfeiture law and to some advocates of its reform. Third, regarding the wisdom of drawing on a non-democratic account of state sovereignty, suffice it to say that historically civil prudence has never entailed per se opposition to democratic politics. In response to these criticisms, and to address some problems with existing rationales, I introduce the civil prudence approach, focusing on its jurisprudential dimension.
The unmistakable purpose of conceiving the possession of criminally tainted assets as unlawful under civil law is to render the burden and standard of proof for criminal guilt inapplicable to forfeiture proceedings. To prevent confiscation, the subject of civil recovery orders must prove to a balance of probabilities standard that the restrained assets were either unlawfully obtained or put to unlawful uses which their owners could not have foreseen or prevented.
New correlative law enforcement intelligence gathering capabilities include permission to waive professional privilege where defence counsel possesses information pertaining to criminal assets. By Australian standards, American law in some respects seems inordinate, providing for individual law enforcement agencies to retain a proportion of the assets they confiscate and, at least, until recently, allowing scant protection for innocent parties.
The pre-eminent concern is the waiving of the presumption of innocence by resorting to civil proceedings and their evidentiary norms. There are also worries about reduced entitlements to legal representation. Such abridgements of due process entitlements are allegedly multiplied through a pattern of successive legislative amendments to existing forfeiture regimes, forever extending the scope and severity of forfeiture measures. This list of concerns could be readily extended. One set of criticisms sees civil forfeiture law as an irrational residue of the archaic and medieval history of forfeiture law that violates liberal-democratic constitutional liberties.
Unsympathetic to bipartisan federal legislative attempts in the s to address a spate of resulting injustices, the United States Supreme Court continues to uphold an almost unbroken series of precedents affirming the irrelevance of third party interests and scienter. For Finkelstein, the origins of civil forfeiture can be traced back to conceptions of guilt in the Old Testament. According to him, the older, Mosaic prototype of the guilty thing is the ox in the Old Testament story, which gored a man to death and, as a consequence, was slaughtered, with its flesh declared unfit for consumption.
Right up to its abolition in , American deodand law was in regular use latterly in suits relating to railway accidents. In so doing, argues Finkelstein, American civil forfeiture law effectively returns American citizens to a modern equivalent of serfdom. In Australia, even in the absence of a widely distributed constitutional culture, human rights-based liberal-democratic principles undeniably have a place in contemporary civic, political and judicial arrangements. These longstanding jurisprudential demarcations, argues Freiberg, are the riverbed on which our system of limited government has been built.
Their erosion, for example via the co-mingling of civil and criminal jurisdictions in parallel proceedings, is said to entail not simply a breach of discrete legal safeguards, but a major reframing of the state:. Consider how, on this view, parallel proceedings violate this goal.
I remain unpersuaded, however, that it is the key structural and essentially amoral driver of contemporary civil forfeiture regimes, and, above all, that the latter augur a shift towards a re-conceptualisation of sovereign statehood. Conviction-based forfeiture cannot prevent illicit wealth from being laundered, used to finance further criminal activities, diversified into otherwise legitimate business dealings,  or frittered away on pointless judicial appeals.
Under PoCA , between arraignment and conviction, accused persons had ample opportunity to dispose of tainted assets;  hence, the rationale for non-conviction-based forfeiture and its arsenal of commissionary, investigative and analytical powers. The policy goals of incapacitating and deterring crime possess a normative connotation — most people do not need to ask why crime should be treated as a bad thing.
However, the incapacitating and deterrent efects of civil forfeiture law are not incontestable. In part, as a foil to my proposed rationale, let us first consider one attempt to furnish a reparative rationale for the in rem form of a civil confiscation order. Forfeiture of the automobile was precipitated by a community campaign against prostitution in a local area, which had become a magnet for outsiders.
Civil forfeiture belongs to that set of laws which govern by fostering community participation in articulating social norms. The meaning of this principle in the context of civil forfeiture is not entirely clear. To remedy this situation, I turn to the neglected philosophy and ethic of civil prudence. In the German states, institutionally, these theologies and metaphysics were chiefly housed in the theology faculties of the proliferating universities founded as part of the process of confessional state-building.
An intellectual civil war came to be waged between proponents of metaphysicotheological natural law and proponents of the anti-metaphysical though by no means anti-theological civil philosophical versions of natural law, pre-eminently in Germany influenced by Pufendorf, who for their part had their main institutional home base in law faculties. Apart from serfdom, a crucial manifestation of these was the tangle of overlapping political and legal jurisdictions which in the 17 th century characterised not only the Austro-Hungarian Empire but to an extent even supposedly independent and sovereign states like France.
A societas, for instance, had no impersonal and continuing corporate standing, whilst a universitas could only be specified by the higher legal authority which created it. A crucial means to this end was to accept that heresy could not be extirpated and, hence, to institute a regime of religious toleration, subject to churches confining themselves to practices which did not jeopardise civil peace.
Yet, again like Bodin, Pufendorfian sovereignty is also delimited, not only by its mundane, anti-perfectionist non-salvation-oriented purposes, but also through a self -re straining form of institutional design and associated ethic. Humans are needful of others, possessed of some practical empirical intelligence but not of a godlike, redemptive capacity for non-empirically grounded rational insight into truth , and capable of social virtue cooperativeness, sympathy. Pufendorf is Hobbesian insofar as fear is what basically impels the setting up of civil states, or acquiescence in civil orders.
However, his normative conception of the state provides a via media between the amoral prudence of the Hobbesian power-state and political prudence understood as the wise application of principles supposedly grounded in reason. This persona-based concept of conscientiousness is a predicate not only of public officials but also of citizens.