Dr. Shumiatcher is a prominent lawyer in Regina, Saskatchewan, well known as a lecturer, writer, defender of freedom. This article is excerpted by permission from his new book Welfare: Hidden Backlash (Toronto: McClelland and Stewart Limited, 1971).
In 1066, William the Conqueror proclaimed himself master of all of the lands of Britain he had taken and occupied — all of which he declared to be his property as lord, or his fiefdom as king. Feudal culture grew upon the premise and concept that all life should be ordered in accordance with the estate in land given to each man and the status thus acquired by him and his family.
Beneath the monarchial master who was king stood the lords, who acquired their lands from the crown and were therefore bound in loyalty to their sovereign. They were, of course, required to support the monarch with money in time of peace and with men and arms in time of war. The rights and duties of the lord vis-a-vis his king were fixed and certain. The lord’s knights and men were likewise bound to do service and grant support, to receive and swear fealty to the lord and to the king. The lord, in turn, was bound to recognize the status of his knights and to accord them the benefits of that status in the feudal society. The serfs and vassals of the lord’ estate in turn swore fealty to their lord. Theirs was an obligation to serve him in return for which they enjoyed the right to till the soil to which they were bound. Though technically a free man, the serf passed with the ownership of the land from owner to owner. He grew his grain on the lord’s soil, ground his flour at the lord’s mill, baked his bread in the lord’s oven, and for these rights he paid a fee to the lord in terms of his labor.
The lords, the nobles, the knights, the serfs — all had their place in society, fixed by the customs of the feudal hierarchy. Stability was the criterion of the society that William and his successors sought to achieve and which, for five centuries, assured security to each class according to custom. Every individual had a place — and there was a place for every individual, but that place was, in fact, a prison. The bars of feudal society were the multitudinous rules and regulations which governed the daily life of all people. Each was bound by the invisible chains of his status that could not be altered. Each man’s estate was determined not by what he did or what he was capable of doing or what he might wish to do. It was determined by where he was born, and when, and to whom. The clothing which each member of an estate could wear was regulated.
The games one could play, the horn-age to be received or rendered, the spouse one might take in marriage, the rituals one was required to perform — all of these were fixed and determined by rules from which there could be no deviation. Departure from the rules meant loss of status or ostracism, and failure to abide by the edicts of the church might mean denouncement, imprisonment, or death. All of the minutiae of life, from womb to tomb, were strictly regulated and religiously enforced by the feudal society. It might be the king’s prerogative to travel through the country and enjoy the lord’s bed and board, or the lord’s right to sample his vassal’s beef or his bride, or the knight’s liberty to loot and plunder from an enemy.
A Break from Feudalism
The curtain of security that the feudal system and the medieval church had cast about all members of society was gradually torn away. Serfs and vassals and knights broke through that curtain and left the land and moved into the towns where they became artisans and tradesmen, merchants and dealers. Gradually, they entered the middle-class professions and some became members of a new class of bourgeoisie. They were able to work under contracts which, for the first time, they were free to negotiate for themselves. Their status was no longer determined by the accident of birth. It mattered not who they were. What did matter was what they were able to do, and as a consequence they came to be recognized and rewarded for what they did. Their productivity determined the money return they could expect to receive for their services from their neighbors and fellow-burghers. Reward came not as a result of their status and the rights and obligations flowing out of that status, but as a result of what they knew and what they produced that was useful and salable. The free market replaced the rigid rules of the feudal estates. Free contract replaced fealty. Value, openly determined, replaced price arbitrarily ordered. The law of the marketplace came to displace the law of the feudal lord. Free competition eventually replaced legislated controls.
The new society was a less secure place for the individual than the feudal society had been. A man soon found that he ran the risks of failure and starvation. And if he did not succeed, he was likely to be abandoned, and might fall sick and die without so much as a crust of bread or the presence of a priest. Until there were established the guilds and friendly societies and brotherhoods of mutual assistance, this new freedom was a fearsome thing. Yet it was a challenging experience as well, and one which was welcomed by those who, for the first time, were free to pit their ingenuity and energies, not against the intransigent forces of a system that fixed in advance the limits of their own growth and development, but against natural forces which they might succeed in overcoming and turning to their own advantage. In the new game, the deck was at least not stacked against them from the outset; they had a chance to win. With knowledge, skill, persistence, and luck, an amazing number of men did succeed.
Release of Energy
Out of this new freedom from the strait jacket of status which had so long limited and strictly defined the rights and obligations of each class in society, there were generated new energies. Originality emerged, and innovations that enlivened an age which, for five hundred years, had fed only on the past. New trades and industries came into being. Enterprise and invention appeared. Exploration of new continents began. Science, which had been mired in superstition and darkness, made its first timorous appearance in Europe. The unyielding barriers that for so long had classified and categorized all people began to crumble. With the breakdown of the feudal rigidities, men and women were free to move about the country and to choose occupations that theretofore had been barred to them. Literature and the arts entered a new era; with the end of feudalism came the awakening of the human spirit. Let loose were the latent energies of those painters and sculptors, poets and playwrights, composers and musicians, whose legacy reminds us that the Renaissance was an age not only in which the old rigidities of status disappeared, but one in which the flowering of man’s spirit produced a great cultural treasure house after its long feudal hibernation.
What was the one overriding change that took place when feudal society crumbled and gave way to a new approach to life? The great legal historian, Sir Henry Maine, in his work, Ancient Law, stated that "the movement of progressive societies has hitherto been a movement from status to contract." It was the substitution of flexibility for fixed and unyielding human relationships. Primitive societies impose on individuals and on classes of people a system of law designed to perpetuate the values which those having power to impose it themselves embrace consider necessary. Such laws nay not be of general application; as a rule they enunciate no abstract principles by which the individual may be guided in respect to his future conduct. More often he law consists of rules devised to deal with individuals or groups of individuals in respect of specific acts or relationships.
Three Principles for Laws
There appear to be at least three essential principles that ought to govern substantive laws in a society in which freedom of contract and not status governs the relationship among men.
The first principle: laws should, as far as possible, be general and of general application. They ought not to be designed for the purpose if regulating the special relation-hips between A and B as distinguished from relationships between all other persons. Neither would they attempt to apply one set of principles to class A persons and a different set of principles to class B persons. All persons, of whatever class or "status," should be treated alike, not only by procedural laws but by substantive law as well. It is in this context that the principle of egalitarianism takes on its most significant meaning. Laws ought not to make fish of one group and fowl of anther. When laws are made especially applicable to one class of persons as opposed to another, it generally follows that since the act of legislating is not a creative one in the sense that it is capable of producing something new — but is only distributive in nature — what the legislature has done is simply to take from Peter and give to Paul. It is then not long before Peter will press for a compensatory law against Paul to redress the imbalance and right the injustice he considers has been done him.
Let us take a simple illustration. If the wages payable to one group in the community are fixed by law — as, for example, those paid to policemen or postmen or medical men—then injustice in the balance of the community is bound to result. If the wages of the one group are inordinately high as compared to those of other working groups, all persons in the community except the class enjoying the new higher wage level are penalized. If the wages fixed by law for the special group are inordinately low, then, of course, it is obvious that they are made the special marks for discrimination and have been unjustly treated. Or let us suppose that by law all wages are fixed according to a master wage plan. It is possible, though most unlikely, that any legislative body will ever possess the sublime knowledge or wisdom to fairly legislate on so vast a subject. But even if such a body were able to equitably fix wage norms for all citizens, such legislation would be meaningless unless it also fixed by law the prices of all goods and commodities and services. Assuming the existence of a sufficiently wise and all-knowing legislative or administrative body to accomplish such an end, is it conceivable that equity could be achieved for all persons in our own country, dependent as it is upon its trade with a hundred other sovereign states, each presumably pursuing a policy of economic law-making designed to achieve the optimum in the fair distribution of goods among all of its own citizens by law? Surely, what the closed feudal society found it possible to achieve, by rules designed to preserve the status of each class only at the price of personal freedom, a world of nations dependent upon international trade and exchange is rather less likely to create within the context of a society committed to maintain some semblance of personal freedom.
General Rules, Applicable to Everyone
The second principle that ought to govern substantive laws is that, in character, they should be general and abstract and should deal only with situations that may arise in futuro. Such laws ought to lay down general or abstract principles, and they ought never to operate retroactively. Laws of general principle and of universal application are, as the Latin word indicates, the only true leges. These are to be distinguished from privileges, or private or special rights, which the Latin privatum-leges or privilegium describes. Privileges granted in special situations or to particular groups are bound to result in the deprivation of rights in all other situations and to all other groups. Only where virtually all members of a society agree that the granting of special privileges or rights to persons holding a particular status is desirable and in the interests of all groups ought they to be granted. If granted, they ought to be clearly defined as a special privilege. For a private right to one group of necessity imposes new corresponding burdens upon all other groups who are bound to respect it or give it effect. What is the privileged group’s meat may well become the non-privileged or underprivileged group’s poison.
To illustrate, discriminatory laws against the Negro — in education, in employment, in the ownership or use of property —are of a character which cannot be supported in a free society for they specifically deny to one group of persons within the community rights to which all other groups are admitted. The white man who claims a right to be free from the presence of black men in his neighborhood seeks to deny to the black man the same right which he asserts for himself. That right is the right to live where he wishes, and it is a right that ought to be enjoyed by all men regardless of their color. The determination of where each wishes to live ought not to be the subject of a penal law. If the black man wishes to purchase a house in the white man’s neighborhood, it is an abridgment of his freedom to prohibit him so doing. If the black man wishes to send his children to the school in which the children are predominantly white, it is an assault upon the black man’s freedom and, indeed, upon the freedom of all members of the community to prevent him from doing precisely that.
But if the black man is to be freed from the shackles of his color status, it cannot be by the coercion of the white man. The white man, no less than the black, is capable of being enslaved. Thus, it is no less an abridgment of the white man’s freedom to deprive him of the right to sell or dispose freely of his property to whomever he chooses than it is to prohibit the black man from purchasing any property from any person willing to sell it to him.
In the regulation of human affairs, decent human conduct can seldom be successfully underwritten by penal statutes. The state can give no guarantees that man will act understandingly with his fellow man. At best, governments can crystallize the sentiments and standards of conduct that the majority of the members of a community freely choose to accord to all men. It can provide guidance and incentives for such conduct. By its own example over a long period of time, it can influence the ways and mores of the members of society, as for example, by its own fair employment policies. The role of government is to open as many doors of opportunity as it can; it is then for the individual to choose whether he will enter.
Principles of Natural Justice
The third principle to which laws in a free society ought to adhere, both as to their substantive content and their application, is that at all levels those concerned with making or administering them should act in accordance with principles of natural justice and not according to personal whim, the transitory pressures of public outcry, or the conveniences of administrative officials.
It is today a fashion among some legal theorists to declare that the law consists simply of the statutes as they have been enacted by Parliament and the legislatures, the municipal councils, and the great and burgeoning body of administrative agencies of government. Hence, it is argued, law is whatever men, acting as members of these bodies, declare it to be. Some academicians such as Dean Roscoe Pound and Mr. Justice Holmes gave this theory great currency in their writings and judicial decisions, and these have influenced many lawyers and judges in holding that whatever legislators state the law to be is, in fact, the law; that "whatever is is right." Theirs has been described as the positivist theory of law.
The positivist takes the position that it is within the sole and exclusive power of Parliament and the legislatures to determine the wisdom of the policy of any piece of legislation. It is not within the province of the courts to strike down any law or to hold it invalid simply because it offends the court’s concepts of what is fair and reasonable. Parliament and the legislatures are the sole judges of the propriety of any statute. Only if legislation infringes the jurisdictional provisions of the Constitution will the courts declare a statute ultra vires. The positivist lawyer then seizes upon this rule to support his position, since there exists no higher authority to adjudicate upon the validity of any law. Whatever the high court states to be the law is, in fact, the law. Of course the positivist lawyers, though they may be in vogue today, would not go so far as to argue that "whatever is is right." They would contend, however, that it is for the legislature alone to determine policy and to write the law. It is for the courts to apply it.
Conformity to Natural Law
But there is a growing body of thoughtful opinion that takes another view. If legislation does not conform to the principles of natural law or natural justice, then the judicial process may operate to have such nonconforming laws set aside and declared void and of no effect. While the principles of the common law go some distance in assuring that statutes and regulations are applied reasonably, it is also a cardinal rule that statutes must be interpreted to accord with the intentions of Parliament and not necessarily with the precepts of reason or fairness. Yet, where laws violate the principles of the Constitution, ample judicial power is available to the courts to set aside the offending legislation. Why may there not be imported into the Constitution the power of a court to test a law according to standards of reasonableness, or according to the law’s conformity to the values that society regards as vital to its preservation?…
Neither the judiciary nor the legislature, nor indeed the executive, enjoys any monopoly of wisdom or good judgment. The limitations of each are inherent in the nature of mankind. They are even more apparent in the business of statecraft than in the private affairs of men. By its very nature, the legislature is primarily concerned with the state — a corporate body, separate and distinct from the individuals who are a part of it. As the power of the state grows, it becomes the chief competitor of the individual for power and wealth and, of course, for final autonomy. The executive, as represented by the nation’s vast bureaucracy, acts as the arm of the legislature in carrying out and applying the body of laws, in nature prohibitory, compulsory, confiscatory — all designed to regulate the conduct of the citizen. The legislators, who are presumed to represent the individual citizen no less than the executive of the state, in fact compete with the individual for such areas of free action as exist.
In the scramble for freedom, the need for independent arbiters to determine the boundaries as between individuals, on the one hand, and the state and its officials, on the other, becomes vital. Judges sitting in courts of law are capable of providing a forum in which the conflicting rights of the individual and the state may be determined with a degree of fairness likely to be found in no other place. Their decisions may not be free of error, but judges admit to error (something I have seldom heard any politician publicly do). Error, indeed, is recognized as a likely concomitant of the judicial process, hence the right to appeal to other courts of superior authority. Judges, by their long tenure, are made as free as it is possible to make men from extraneous influences and improper biases. On the other hand, the very raison d’être of the politician is his bias for or against policies that he formulated or that were foisted upon him before he was confronted with the facts, and often long before he entered public office. What, after all, is a party platform except a bundle of biases and popular preconceptions? In a court of law, the tyranny of the majority has no application. For consideration are only the rights and obligations of the individuals before it. Imperfect though judges and courts may be, they constitute the one institution in civilized society that is designed to seek to adjust the rights and obligations of individuals among themselves, and of individuals in relationship to the state, upon principles that do not seek justification in the weight of numbers (as from an electoral majority), in the power of sanctions (as from the police power of the state), or in the influence —for good or ill—of status or wealth.
Freedom vs. Equality
A court of law will treat all parties who are before it equally. But it will not attempt to make all who are before it equal. Thus, judges, recognizing realities and in no way constrained to do what is popular — rather than what is right — avoid the politician’s penchant to embrace the principle of egalitarianism when all of the observable facts belie its validity. The politician today has grown fearful of a free society because freedom has a way of encouraging diversity and compounding the "problems" of administering any political program. The more uniform the people of any society, the simpler it is for governments to control them and to maintain fixed standards of living and established norms of behavior. If men are free to do as they choose, disparities among them are likely to increase. Such a trend would be contrary to the most commonly expressed slogans of politicians that all "disparities" — regional, class, color, personal — ought to be eliminated. Will Durant stated the proposition clearly enough: "Freedom and equality are sworn and everlasting enemies, and when one prevails the other dies. Leave men free, and their natural inequalities will multiply almost geometrically."’
If equality were the summum bonum of society, restrictions without number upon man’s freedom might be justified in order to render all men as nearly equal as human institutions and devices are capable of rendering them. But restrictions upon liberty that are imposed to attain equality do not necessarily result in achieving that end. More often, such restrictions produce simply a fresh variety of inequalities. At the same time, the loss of freedom deprives society of its most vigorous catalyst for growth without substituting any benefit in exchange. Hence the argument in favor of restricting freedom to attain equality among all mankind is a mere chimera and sham, more attractive as a rhetorical phrase than as a viable possibility. Our experience and knowledge of the revolutions in Russia and China show that those who justify the abridgment of liberty in the name of equality end up by themselves monopolizing liberty and declaring, in the words of George Or-well’s elite of pigs, that while all persons are equal some are more equal than others.
Freedom to Contract
We have observed that the struggle of free men against feudalism’s concept of status was a long and arduous one. While it was underwritten by the natural desire of individuals to improve their lives by exercising their latent abilities, the concept of free contract found its rationale and justification in the principles of natural law. Its source was the ecclesiastical law. In the upheavals that saw the decline and demise of feudal society, the principles of the Old Testament and the power of the clergy played no small role. The appeal to natural law was heard in many places.
When Adam delved, and Eve span,
Who was then a gentleman?
Such was the theme of a sermon in Nat Tyler’s Rebellion. Traditionally, there are certain basic "rights" to which a man is naturally entitled: the right to safety of his person, to liberty of his body, to his own good name, to freedom from malicious vexation by legal process, the use and enjoyment of his own property, the right to pursue unmolested his trade or occupation. These are elements necessary to the individual in order that he may live as he may desire. Lord Denning stated: "What matters 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 to do the same. Wherever these interests are nicely balanced, the scale goes down on the side of freedom."2
"Natural law" has been given scant recognition by the courts in recent times save in relation to procedural formalities which must be adhered to by any person who decides anything that affects the rights or liabilities of others. In substantive matters, Parliament and the legislatures are regarded as the sole judges of what is right and just and reasonable. It is a theory that has more to commend it in the abstract than in practice.
Nothwithstanding the unwillingness of courts of law to enter into this field, in 1957 the Quebec Appellate Court did recognize the substantive principles of natural justice in a case involving a suit against a school authority in which the right of parents to educate their children was in issue. In my view, the Chabot case3 is one of the outstanding judicial landmarks of our time because it gave recognition to the idea that there are, or ought to be, certain areas in human relationships that stand outside the ambit of the state’s lawful authority to control. It is a landmark, also, because here there exists the basis for a true marriage of philosophical ideals and legal principles between the provinces in which the common-law tradition runs, and the Province of Quebec whose dominant legal traditions are rooted in the French Civil Code. The Chabot case holds that the right of a parent to determine how his child is to be educated is inviolable; the parents and not the state have a paramount obligation for the child’s upbringing and, accordingly, it is the parents’ right to determine the school their child should attend. It is a right of which no government may deprive the parent.
Rights Dissolve info Status
Man is as much wronged when he is deprived of a society in which his natural rights may flourish as when he is deprived of an environment which lacks fresh air and pure water and sunshine in which his body may thrive. These rights have traditionally been expressed as variations upon the basic theme of the individual’s right of noninterference at the hands of the king or his minions: the right to be let alone, the right to be free of the overwhelming powers of the state.
But in recent times, this concept of the natural rights of man has undergone a metamorphosis. The freedom to be let alone has all but dissolved itself in the demands of the welfarist to be meddled with and cared for. The freedom to raise children according to one’s conscience has disappeared in the welter of boards and agencies, school hierarchies, and teachers’ federations, all of which claim such vast expertise and so profound a knowledge of pedagogy that they have succeeded in creating an educational system more expensive and more remote from the child’s home and family than any hitherto produced by a civilized society.
The freedom to negotiate and enter into agreements according to the best judgment of those who are parties to such contracts has disappeared in the overwhelming zeal of politicians to scrutinize, modify, and nullify their terms according to the exigencies of political popularity based upon such esoteric principles as Canadian nationalism. The natural right of the citizen to deal with his property with the same skill and acumen he demonstrated in acquiring it is denied him by a higher, state authority whose capacity to produce, innovate, or invent has proven itself something less than outstanding.
The natural right to practice one’s profession according to its traditional tenets, and to be restricted only by those rules that fellow practitioners, likewise trained and skilled, might impose, is fast disappearing with the state’s aggressive policies against the learned professions in establishing such state-directed schemes as medicare. These whittle away the quality that, more than any other, has contributed to success in the practice of medicine — a relationship of confidence and trust between doctor and patient, free of interference, direction, or control from any branch of government.
Some now claim that natural rights mean the right to be fed, clothed, and housed by the state and at public expense; the right to be cured by the state when sick; the right to be entertained when bored; the right to be sent away on vacations when tired; the right to be protected against one’s folly in making contracts; to be relieved of one’s carelessness in the abortion clinic; and to have one’s unwanted children made wards or one’s half-wanted children cared for at day centers. And for some of the more sophisticated, who claim it as a natural right to be among the new elite, there is the right to spend four years or more at a university campus to learn how to malign, with unimaginative and stereotyped obscenities, the society whose duty it presumably is to shower all of these blessings like rain upon the deserving and undeserving alike.
Who Are You?
Bills of rights and charters of human liberties may go some distance in restraining governments from zealously pursuing programs for what is euphemistically called general welfare at the expense of the individual’s personal liberty and well-being. But in the last analysis, the extent to which governments will succeed in stifling human liberties will be determined by the philosophy of law that judges, sitting in their courts, are prepared to apply to the laws that threaten the individual’s liberties. The bulwarks of liberty can only be constructed piecemeal and slowly, as individuals appear before the courts seeking to assert rights against specific abusive actions of the state.
We have traveled a long distance into the kind of society in which status plays the major role. Federal and provincial laws dovetail to classify all persons in a manner that freezes the position of each of us almost as effectively as did the feudal system nine hundred years ago. It is true that there exists no legal prohibition against moving from one stratum to another. But the incentives (or lack of them) encourage the individual to clasp, like some magic amulet, the rights (and disabilities) of the particular class in which he finds himself. A static society is the inevitable result. That is the kind of society that affords the highest degree of "security" for the citizen and causes least trouble to the state bureaucracy. Let us consider a few examples.
Are you an aged person? If so, your status places you in a special slot that entitles you to pension checks, and in certain places you become entitled to medical care, reduced public transportation fares, and other special allowances. Are you an unemployed person? This status entitles you to claim upon the state for certain weekly payments so long as you are not offered alternate employment that suits you. If you follow the practice that the scheme in fact encourages, you will build up sufficient reserves in the plan to take a holiday at the expense of the Unemployment Insurance Commission, whether or not you are actually unemployed and unable to find a job.
Are you an employee in a plant in which there has been certified a particular trade union? Then your status is strictly prescribed by the labor legislation under which the certification order was made. The terms and conditions of your employment will not be determined by you in your own personal capacity, or according to your own abilities, or even by the contract which you, personally, may have entered into with your employer. Neither is your productivity (unless you are paid upon a piecework basis, a principle rejected by most trade unions) the determinant factor of your earnings. The established trade union assumes the role of your agent and representative, and you are bound by the terms and conditions that are negotiated for you by its officers.
Are you a medical practitioner in a province which has adopted medicare? If so, your status is determined by act of the legislature; your schedule of fees is approved by the government, and every attendance upon your patient is scrutinized by the government computer system that is operated by employees of the state. Your accounts are examined and approved or rejected by government employees, and your rights as the medical adviser of your patients are prescribed according to the regulations of the state commission.
If you are any of these, there are programs for you. And these came into being through the activities of pressure groups, organizations, and regional agglomerates which have made demands upon governments to meet special situations. But more often than not, the payments and subsidies and grants and allowances, most of which came into being for temporary ad hoc reasons, ultimately become permanent fixtures built into the fabric of the state that no politician dare discontinue. They are now coming to overwhelm citizens by their costliness. Like the proverbial white elephant the Emperor of Siam is said to have presented as a gift to the subject he was most solicitous to destroy, so Canada’s politicians have been providing their special gifts in aid of every class and category in the country — each singled out for benefactions so expensive to maintain as to ensure its ruin.
No doubt, some of the programs in limited form can be justified. But their proliferation results in the creation of privileges and rights based not upon what any individual is doing or has done but rather upon the status that the individual can persuade legislators he is entitled to claim. Not the least among the claimants are legislators themselves. Among the more extravagant in recent times was the status accorded Toronto aldermen when they voted themselves life pensions after five years’ service on the metropolitan council. The value of each pension is estimated to total in excess of $50,000. Their own contribution to the scheme is to be about $3,600. The balance, of course, is to be loaded upon the backs of the docile taxpayers. Rights and responsibilities are based less and less upon what a person does and more and ever more upon who he is. The feudal principle of status has been revived under the guise of "progress." In fact, the principle is as retrograde as it is outrageous.
"So Long as the Sun Shines…"
Was this not the very same premise upon which the Treaties between the Queen and the Indian bands of Canada were drawn a hundred years ago? "So long as the sun shines and the waters flow," Indians and their descendants were promised the government’s continuous benevolence and care. The Queen promised that they and their descendants would be saved from pestilence and famine; their children would be educated; the medicine chest would always be at the agent’s office to cure their ills. A special status was thus created not only for the Indians who signed the Treaties and their families who were then directly affected by their terms. This special status was to continue forever. In the result, Indians were reduced to the status of wards of the great Queen Mother. The legislation creating this special status was regarded as an act of benevolence and kindness. But in the result, the legislation had the effect not only of taking from the Indian his lands — this was a loss of comparatively minor dimensions — but also of taking away his independence, his self-reliance, his chance to succeed, and the possibility that he might fail.
The status of beneficiary in a welfare state especially designed for him robbed the Indian of all desire he might have had to create his own niche in the new burgeoning society that was in the making everywhere about him. In effect, the Indian traded his freedom for treaty money and the promise of perpetual care in the white man’s happy hunting ground. Even the hunting became a thing that the white man was to control and restrict. He was compelled to surrender suzerainty over the vast tracts of land that had been his. But instead of taking title to the new reserved properties in order that he might own and control them, the Indian accepted a hybrid kind of right to live on the lands designated and to use them collectively with others. This kind of property right was of little value in any practical sense. Legally, he might claim a right as beneficiary. But his was the child’s right to use a public playground according to the rules made by his elders and betters.
Just as playgrounds are said to be laid out and supervised in the best interests of the children, so it was the intention of the white man’s government to designate and control the reserves in the best interests of the Indian. But although children grow up and leave their playpens, and one day reach maturity and manhood and come to occupy a place in the world of grown men and women, the Indian remained a child, hemmed about by the protective fences and the paternalistic rules of an unreal world. Protected as a child, he acted as a child. Suspected of immaturity, he remained immature. Sheltered from the risks and adversities of the outside world, he avoided the contests of competition, the disappointments -of failure, the stimulus of success. The Indian too often still speaks as a child, understands as a child, thinks as a child. He has not put away childish things because he never has really matured. Our society condemns him to perpetual childhood.
The Indian’s reserve is the feudal estate of our century. His presence is an anachronism of medieval times. This must be a matter of concern to us all because the Indian is our neighbor, and his frustrations and failures are things in which we all share. But his status has an additional significance for all of us because it casts the shadow of the future for every man and woman in our time and in our children’s. His is the estate into which all of us are entering by virtue of the special status that we either seek as members of an artificially created class or are assigned by paternalistic governments. The result in both cases will be the same. The quality of life in the welfare state into which we have entered will eventually differ in no significant way from the welfare state in which the Indian has lived for a century.
If we are concerned over the plight in which the Indian finds himself at this juncture of history, after a hundred years of state welfarism, it may be appropriate to consider at the same time the condition in which the non-Indian population of Canada is likely to find itself after we have lived just half that period in the great welfare society that has been designed for the rest of the people of this country. Are the conditions of the welfare state in which every citizen has been enrolled in any significant way different from those which, for a century, have characterized the Indian’s way of life? If the direction and regulation of the daily life of the Indian has brought him to his sorry plight, is there any likelihood that the same kind of policy, pursued nationally, will produce among the rest of us the kind of growth that we envisage for Canada’s second century? This is hardly likely to be achieved unless there exists both within and without the reserve the kind of society in which a man can develop his independence and grow to maturity; where he will discover the motives and incentives that are lacking and that are so necessary to the growth of any self-reliant human being.
Where Does One Turn?
There was a time when such a society could be found outside the Indian reserves. That kind of society is now a vanishing phenomenon. The whole of our nation is fast becoming one great Indian reserve in which the agents of the state are directing our lives and destinies as certainly and as completely as they have been dragooning the lives and destinies of the Indian people for the past hundred years. It is now not simply a question of where the Indian can go to regain some self-respect and independence. The question is whether any of us can maintain his own self-reliance and identity as viable human beings in the face of the assault upon our lives by the power of the state. The welfare cult, to which almost all politicians appear to be committed in the mistaken notion that the individual wishes to be treated as a dependent child, has moved Canadians behind the protective shadows of an all-enveloping, maple-leaf curtain. To some, it may seem a welcome shelter from the adversities of the times. But as surely as it reduced the Indian to a state of slavish dependence and deprived him of his freedom to live as a self-sufficient human being, so it will cause us all to degenerate into mere digits whose only real existence will be found in the books and computers, the statistics and reports of the proliferating governments of this country.
My one hope is that the Indian may regain his soul and find his independence in a free society wherever he may choose to build it. My great fear is that governments will succeed not only in holding to ransom the Indian’s soul as it has held his property, but that before many years have passed it will make Indians of us all. Although the white man has not yet been reduced to the status of the Indian, he is well on the way to assuming that same status; all of us have become welfare-oriented.
Little wonder that almost every proposal that reaches the public from a political platform, whether concerned with Indians or non-Indians, repeats ad nauseam the need for more welfare rather than less, greater money payments rather than fewer, more government agents to the barricades rather than their withdrawal, more educational direction rather than freer choice. The concept of welfare has become so ingrained in the white man’s way of life that it has become his overriding philosophy of life. It is the panacea for all ills. If there is poverty then naturally poverty can be cured by government money. If there is ill health, it can be eliminated by state-paid medical care. If there is ignorance, it can be dissipated by government schools. The fact, however, is that poverty and ill health and ignorance cannot be eliminated simply by attacking their symptoms with a barrage of money any more than a case of measles can be cured by scraping off the pimples. As a fever can be fought off and overcome only by the body in which the illness resides, and only by the generation in that body of the strength and will to grow well, so the ills of poverty and disease and ignorance can only be cured by strength generated in the body of the individual who suffers from them. External palliatives, such as money grants, may seem to bring temporary relief to the patient, and they assuredly give a very substantial cushion of comfort to those who administer that relief. But they will not produce a healthy individual any more than they can foster a vigorous or viable community of men.
Where Lies the Hope?
There may be elaborate schemes proposed for the reparceling of lands or the redistribution of wealth as a result of which the impoverished Indian may be given a greater share. But the natural differences among human beings will reassert themselves, and in the end nothing is genuinely changed. The only way that real change can be achieved — the only genuine revolution that can change men’s lives — emerges from the acquisition of new skills, the generation of positive motives, and the enlightenment of the human mind. The only true emancipation of the Indian can come with his development and growth as an individual. This kind of change requires time — many decades of it — and patience on the part of the Indian and the white man, and the kind of understanding that rejects simple solutions and instant answers.
Because of his own experience with the welfare state, no one in Canada today can testify more eloquently to the depressing results of that state than the Indian. Attractive though it might seem, it is the trap that ensnares the unwary. It promises the ideal of egalitarianism to the poor; it holds out the prospect of fair shares for all. The Indian, in his naiveté and ignorance, succumbed to these blandishments.
The rest of us, however, will have no excuse for our self-debasement. If we allow the Minister of National Health and Welfare to ensnare us further into the welfare state, because it is easier to computerize twenty-three million people for guaranteed incomes than it is to face up to the need of exciting Canadians as individuals to the joy of earning their own incomes and guaranteeing their own futures, we will be skidding down the same sticky, tricky road that the Indian started down a century ago. We will end up in the same morass, the same dreadful decay. If this does happen, the white man will have walked into the slough of despond with his eyes wide open. He will learn that the blandishments of the great national bonanza can become only the bars of the new national Bastille.
The Indian knows this road only too well. His history is its map, and every trap bears witness to his suffering. At this juncture in our joint history, it is we who need the help of the Indian more than he needs ours. He can warn us that there will be no good hunting in a country whose government officials multiply faster than jack rabbits, for it will be found that all the cabbages we grow in this green and pleasant land will never be enough to satiate them.
Security May Betray Us