Application of the 1807 Act
By the beginning of the 19th century, French colonial life on the island was setÂtled and well-established.[242] It remains difficult to appraise what the precise living conditions were, for some commentators, such as Allister Macmillan in his extenÂsive historical study, paint the picture of a thriving colonial society,[243] which howÂever contrasts sharply with more contemporary observations highlighting squalid conditions and significant poverty.[244] What is undisputed is that every aspect of public life was firmly in French hands, as supported and sustained by their slaves, and as legal historian Tony Angelo observes: “In 1810, Mauritius had a strong legal culture, and the colony had considerable self-confidence.”[245] It is in this conÂtext that British conquest must be understood.
The slave trade was a matter that immediately brought itself to the attention of the first British governor, Robert T. Farquhar, whose correspondence highlights how reliant life in Mauritius was on slavery. Notably, while Britain had abolÂished the slave trade, France by that point had not, and would actually in 1814 (through the Treaty of Paris) be given a further five years to do so.[246] Governor Farquhar’s exchange with the Earl of Liverpool[247] on the subject two months after the takeover is revealing, for he makes a reasoned argument for the disapplication of the Slave Trade Act to Mauritius. Several paragraphs of his now-famous letter have been subject to criticism, not only in modern scholarship but by contempoÂrary commentators as well.[248] The focus here is on the section that concerns the validity of the 1807 Slave Trade Act, which merits direct quotation:[249]
I believe it has been generally agreed, that a British Act of Parliament does not extend to a colony, unless that colony be specially mentioned, either by name or general inclusive words; and that an Act made previously to the acquisiÂtion of a colony, and which therefore it could not be in the contemplation
The abolition of the slave trade 57 of the legislature to bind at the time of passing the Act, will not, generally speaking, bind the colony acquired subsequently to the making of the Act.
Besides those general positions, my instructions were to grant these islands, on capitulation, their laws, customs and usages; they have been granted in express terms by the capitulations. Those laws, customs and usages recogÂnise not only slavery, but the Slave Trade; without that trade, or some other substitute or remedy, these colonies promise shortly to be annihilated; and the inhabitants are likely to be rendered desperate, if the supply of slaves be refused them.
Governor Farquhar wraps up the point by stating that he understands the slave trade as remaining sanctioned to an extent in Trinidad or other places in the West Indies.
Further, while claiming that he would seek to ameliorate the position of the slaves, he believes that any “any sudden alteration, or an ill-timed display of symÂpathy, might be attended with the worst effects”, since there seemingly persisted a view in Mauritius “that the arrival of the English was to be the signal of emanciÂpation, and the release of the slave from all obligation towards his master.”
The return despatch, dated two months later, saw the governor being severely admonished for his interpretation of the application of the Act, declared “entirely misinformed” regarding the continuation of the slave trade in other colonies, and receiving alongside the reply a copy of the Slave Trade Act, with instructions to carefully study it.[250] It seems unlikely that Farquhar expected to receive the scathÂing response he did. Marina Carter and others claim, however, that the above exchange allowed him to delay promulgation of the Act.[251] In that line of arguÂment, his stance would amount to little more than a brief stalling of the ban. It is submitted that the governor’s objective went further than that. But whatÂever Farquhar’s intentions, a number of conclusions may be drawn from the communication.
There are two possible readings of Farquhar’s first paragraph, on what he deemed to be “generally agreed”.
The most obvious interpretation is taking it to mean that since Mauritius was not a British colony in 1807, having only become a possession in 1810, the Act did not apply to the island. Prima facie, there appears a certain plausibility to the argument which will be considered shortly. Another interpretation is an implicit assertion that, since Mauritius had not been “in the contemplation of the legislature”, had it been a British possession at the time of the passing of the Act, parliament is likely to have made certain allowances, warranting subsequent exemption. This line of reasoning is supported by FarquÂhar’s representations in the second paragraph, where he underlines the absolute necessity of the slave trade for the viability of the colony that is otherwise risking,he claims, “annihilation”. Cognizant of the island's need, Farquhar presupposes parliament to not have had legislated against it.
While this second reading of the governor's argument (possibly lost on the Earl of Liverpool) had no basis in law, it is nevertheless quite cogent, given its focus upon the imperial interest: the survival of the colony. This, no doubt, would have been quite a significant concern in London even if arguably, makÂing an exception in case of Mauritius would have been damaging to Britain's self-projected humanitarian image and to its efforts in achieving international cooperation in effecting the ban. Either way, it was evident that the Earl was not amenable to entertain any notion of the continued legality of the slave trade in Mauritius:[252]
I cannot sufficiently express my surprise that you should have supposed it possible that when the Parliament of the United Kingdom had thought proper, upon general principles, to abolish the Slave Trade with respect to all the ancient colonies and established settlements of Great Britain, it could have been in their contemplation that this trade should be suffered to exist with respect to those islands or foreign possessions, which the fortune of war might place under His Majesty's dominion.
A close reading of the wording employed in the 1807 Act does indeed reveal that its intended application was wide and oriented towards the future.[253]
The constitutional position as articulated by the Earl was codified with the adoption of the Colonial Laws Validity Act (“CLV Act”) by the British ParliaÂment.[254] Under the CLV Act, a legal continuation of the slave trade in Mauritius would have probably been void for “repugnancy”,[255] as it would have presented a direct contradiction to the 1807 ban. The CLV Act however did not pass until 1865, and while it may reflect how Parliament intended its imperial laws to apply, it cannot be relied on for the situation in Mauritius in 1810.
What then, of Farquhar's argument against the retrospective application of the 1807 Act to an island conquered three years subsequently? In the absence of clear statutory guidance at the time, did the Earl's answer have a legal basis?
The abolition of the slave trade 59 This inquiry questions the very source of law in a newly acquired territory. An examination of the jurisprudential underpinning of the idea of conquest is hereby instructive. According to Halleck's 19th-century treatise on international law, the laws which remain valid “do not derive any force from the will of the conquered, for the person capable of having and expressing a will - the body politic, or lawÂmaking power of the conquered - is extinguished by conquest.” The laws which continue to operate do so on the presumption that “the new political sovereign has adopted and continued them as a matter of convenience.” As a consequence, “whatever is in conflict with or directly opposed to, such expressions of his will, we cannot assume to have been adopted by his tacit consent.”[256] Thus, if under 19th-century international law, a new sovereign's power was deemed not only to project into the future, but extend into the past as well, the legality of the slave trade in Mauritius would have ceased upon conquest, because the 1807 Act would at that point be deemed effective, since the French slave trade laws, which are in contradiction to it, cannot be presumed to have been adopted by the British parliament.
It is the preservation of the French laws which thus becomes an issue.
While the Earl of Liverpool denounced Farquhar's logic regarding the Slave Trade Act emphatically, Farquhar's second argument regarding the Terms of Capitulation was not at all addressed in the Earl's reply. If the inhabitants of Mauritius had been granted the protection of their French laws, would that not encompass the legality of the French slave trade?3.4.1 Legal effect of the Terms of Capitulation
Before considering the ramifications of the 1810 Terms of Capitulation between France and Britain concerning Mauritius, it should be helpful to illuminate the concept of capitulations more generally. Historically, the term “capitulation” was used to describe two different kinds of instrument. On the one hand, capitulations were understood to be treaties which granted certain powers and privileges to the nationals of one of the parties whilst residing in the territory of the other - a system of consular jurisdiction that, in the context of the Ottoman Empire was referred to as the “capitulatory system”.[257] A second usage was to be found in the military context, in which the capitulaÂtion was a localized act to be legally distinguished from surrender.[258] As it was later described, a capitulation was to be understood as “a mutual agreement
on the future surrender” of one of the parties, surrender being the obligation that is “the essential content of an agreement on capitulation”.[259] As such, an agreement on capitulation can be reached with or without conditions, conÂditional capitulation offering more advantageous terms than straightforward surrender.[260] This modern definition is very close to 19th-century definitions of the concept.[261]
Examining the Terms of Capitulation between France and Britain in MauriÂtius, it is apparent that they took indeed the form of an agreement, with British stipulations being followed by French “Answers”, meaning confirmations of the aforesaid, with the wording revealing varying degrees of assent.[262] The most cruÂcial item, and notably the only one reiterated verbatim in response, is Article 8: “The inhabitants shall preserve their Religion, Laws and Customs.”
This concession appears to be rather broad and extensive.
International legal doctrine ordinarily restricts terms of capitulation as binding only on the troops under the command of the officer concluding the agreement. Lassa Oppenheim, in his treatise on International Law, states:Capitulations are military conventions only and exclusively; they must not, therefore, contain arrangements other than those of a local and military charÂacter concerning the surrendering forces, places, or ships. If they do contain such arrangements, the latter are not valid, unless they are ratified by the political authorities of both belligerents.[263]
Similarly, in Halleck's 19th-century rules on the intercourse of states, it is stated that the power to enter into a capitulation is implied in the office of the commander in charge, and any agreements “not coming within his implied powers would be null and void, unless special authority to that effect had been given to him, or his acts should subsequently receive the sanction of his government.”[264]
In the case of Mauritius, the wide-ranging concession of Article 8 was clearly granted purposefully by the British side, evident not only from Governor FarÂquhar’s statement in his letter above, but also corroborated by an account of Admiral Bertie, who as a party to the negotiations confirmed: “His Majesty’s Instructions... have been the rule and guide of the occasion”.[265]
Concluded on 3 December 1810, the Capitulation was subsequently proÂclaimed on the island two days later.[266] As mentioned in Chapter 2, Mauritius was officially ceded to Britain through Article 8 of the Treaty of Paris in 1814. HowÂever, commentators have correctly pointed out that the Treaty makes no allusion made to the Terms of Capitulation or the proclamation of 1810.[267] While the conclusion of the Paris Treaty too, was subsequently proclaimed in Mauritius,[268] Justice Wood Renton argues that since it was never confirmed by imperial statute, the “maintenance of French law in Mauritius depends solely on the CapitulaÂtion, the Proclamation of December 5, 1810, and the rule... that the law of a conquered or ceded Colony at the time of conquest or cession remains in force till it has been altered by competent legislative authority.”[269] Though not cited by Renton, the “rule” he refers to actually derives from the 1774 case of Campbell v. Hall[270]
3.4.2 Campbell v. Hall
The material facts of the case turned on the legality of British duties imposed in lieu of French duties at the island of Grenada, which had been acquired by Britain through conquest from France. Not dissimilar to Mauritius, Grenada capitulated subject to the provision that it “should continue to be governed by its present laws until His Majesty’s further pleasure be known.”[271] Lord Mansfield, who delivÂered the judgment, was one of the government’s most influential people on colonial affairs in the Upper House and took the opportunity to provide a deciÂsion of lasting relevance to the imperial context.[272]
The most significant pronouncement for present purposes was that “the laws of a conquered country continue in force until they are altered by the conqueror.”[273] Further, no privilege existed for the Englishman as against the locals, who, receiving the Crown's protection, emerged as British subÂjects. While the articles of capitulation “are sacred and inviolable according to their true intent and meaning”, a conquered country became a dominion of the Crown and was consequentially placed under the authority of the British parliament.[274]
It is thus evident that Article 8 of the Capitulation was not a concession unique to Mauritius. British imperial practice allowed for retention of local laws upon conquest, though it is the absence of any limitation or caveat to that grant (as for example placed in the Grenadian capitulation described above) which appears surprising in the Mauritian Capitulation. However, Lauren BenÂton explains that while colonialism set the stage for legal pluralism, individual approaches varied.[275] In all instances “strategic decisions” regarding the type of legal control to be imposed were made, yet while sometimes this involved “aggressive attempts to impose legal systems intact”, frequently, there “were conscious efforts to retain elements of existing institutions and limit legal change as a way of sustaining social order.”[276] This appears to have also been the case in Mauritius. Broadly allowing the French oligarchy to keep their laws and customs ensured their continued superior position on the island, possibly allowing the takeover to be more peaceful than it otherwise could have been. The concession may also be taken to indicate from the beginning the absence of an intention to anglicize Mauritius. The British, indeed, did not settle on the island in significant numbers.
With respect to the application of the 1807 Slave Trade Act in Mauritius after conquest, the decision of Campbell v. Hall makes it clear that while the terms of the Capitulation were to be honoured and French laws continued, this would be subject to the authority of the British parliament. As such, laws which were inconsistent with Acts passed by the legislature could no longer apply.[277] While this did not affect the laws to slave-holding per se, as far as the sale and purÂchase of slaves was concerned, the legality of the French slave trade remained of
The abolition of the slave trade 63 no substantive relevance to Mauritius. Therefore, contrary to common historical assessment, the Slave Trade Act of 1807 took effect upon conquest, irrespective of the Crown or parliament actively altering the local law, whether through procÂlamation or otherwise.[278]
3.5