Contemporary relevance of Mauritian colonial research

It has been observed that laws, particularly those relating to labour, have enor­mous influence both economically and socially. During the period of slavery, the question of labour was subsumed in the context of property, specifically owner­ship in the slave and his labour, whereas the epoch of indenture saw the enact­ment of a system of abstract labour, whereby the work produced by the immigrant was commoditized.

7.2.1 Legacies of slavery and indentured labour in Mauritius

Colonial legacies remain visible in Mauritius, as discussed in Chapter 1. Dis­crimination and persistent disadvantage suffered by certain parts of society are observable, if not always quantifiably so. The year 2009 saw the establishment of a Truth and Justice Commission (“TJC”) in Mauritius. Notably, under the relevant Act, the commission had as its mandate “to make an assessment of the consequences of slavery and indentured labour during the colonial period up to the present” by conducting the necessary inquiries, and further, to “deter­mine appropriate reparative measures to be extended to descendants of slaves and indentured labourers”.^[813] The resulting report was submitted by the TJC in November 2011.

The historical research undertaken and collated renders the report a valuable contribution and resource for the study of the history of Mauritius. It examines the context of the slave trade and traces in detail the origins of the labourers from India. In particular, the report is to be commended for highlighting certain less-well-known aspects of Mauritian history.

The work of the TJC has the potential to dismantle the pervasive conceptions as outlined in the introductory chapter of this work, by showing that the island's history is more complex and the origin and composition of each social stratum more intricate than most Mauritians believe. Unfortunately, this important aspect of their findings is obscured by the conclusions reached on the contemporary situation involving the descendants of slaves and indentured labourers.

In its chapter on the continuities and consequences of slavery and indenture,^[816] the TJC draws a highly contentious link between the slavery period and the later family setting of slave descendants. Claiming that “slavery has affected the family institution the most”, the report outlines the slave-holder practice of “selective breeding”, which it states “deprived [some slaves] of the right to develop monogamous family relationships.” Arguing that “psychologically, selective breeding influenced slaves to believe that family relationships were of little value”, the TJC contends that “the destruction of the role of the father during slavery would have a major impact decades and centuries later”. A pri­mary consequence is identified in the existence of “single-parent households” as well as “the isolation of the males”.^[817] There are several issues in this claim made by the TJC.

Addressing the situation of the descendants of indentured labourers in the same chapter, the TJC makes the important observation that not all of these “succeeded” in the conventional sense: not all acquired land, not all became urbanized, not all became educated. In this part, the report denounces the ste­reotypical depiction of the progress made by labourers, claiming that it is one “regularly reproduced by those of non-indentured ancestry.”^[818] Yet this depiction is one which the TJC in another part of its report actually endorsed, as noted in Chapter 1 of this study.^[819] The remainder of the section in the report depicts the living conditions of workers in the sugar industry subsequent to the end of indenture, to support the underlying argument that the Indian labour transition was not an easy one.

In summary, the TJC’s findings can be regarded as largely stating what had been generally “known” to anyone familiar with the societal composition of the island. Certainly, as a result of the numerous interviews undertaken, these observations are now substantiated with a volume of oral testimonies on record, and no longer rely on the reiteration of anecdotes, but otherwise they do not reveal a very great deal.

Writing in an newspaper article in 2015, a former commissioner of the TJC expressed his disappointment at the lack of governmental action in the aftermath of the publication of the report with its approximately 300 recommendations, describing the setup of various ineffective committees as “an eyewash”, meaning a process of mere lip service with no substance.^[820] Co-chairperson of TJC and local historian Vijaya Teelock provided her own assessment in a conference paper pub­lished in 2014.^[821] In it, she outlines the many practical difficulties and hurdles the establishment of a truth commission engenders, ranging from funding, to staff recruitment, to internal disagreements. Importantly, Teelock notes that “in the process of [the commission’s] creation, there was little real discussion of how one was to investigate a system that existed 200 years ago, with no surviving victims or perpetrators.”^[822] As observed above, the absence of a defined epistemology is certainly noticeable in the TJC’s report. Nevertheless, as Teelock states: “It was clear that the focus was not to be those who endured slavery at first hand, but rather on their living descendants and those consequences of the slave trade that are believed to have an enduring impact on life in Mauritius today.”^[823] The problem with that approach apparently became evident at an internal workshop held to answer the question “Who is a descendant?”, with Teelock noting the somewhat acrimonious exchanges which ensued.^[824] As discussed previously, the question is a complex one in the Mauritian context, and in the absence of clear statistical data (which is difficult to obtain given that former slaves were counted as “General Population” alongside white inhabitants from the mid-19th century onwards, as explained in Chapter 2), the issue invariably engenders a discussion of discrimination and stereotypes.

This, it is submitted, is quite possibly the main difficulty which arises in the context of Mauritian history and which has filtered into popular Mauritian consciousness: the idea that there are separate descendants of any group. As described in Chapter 1, the TJC itself notes the widespread metissage which took place in the 19th century, rendering ideas of racial purity within Mauritian society obsolete. Yet if that is the case, should not all Mauritians be consid­ered descendants of a single colonial past? An unfortunate heritage from the colonial period, and quite possibly a significant block the establishment of a unified Mauritian consciousness, appears to exist in form of a sense of distrust and competition among the different segments of society. However this state cannot be alleviated by tackling Mauritian history in the way it has been dealt with hitherto.

Vijaya Teelock commends the TJC for being the first commission to cover not only the legacies of slavery, but also those of indenture.^[826] Nevertheless, she notes that “the inclusion of indenture in the original mandate reflects the official tendency to �?balance’ different ethno-cultural forces in Mauritius and avoid the criticism of favouritism towards any particular group”, stating that whether locally or internationally, the desire for “truth” or reparation in the context of indenture is much lower than with slavery.^[827] Herein, it is submitted, lies a major fallacy. If regard is paid to the indenture experience merely as an exercise to provide a “bal­anced” view of history by giving equal attention to each epoch and to appease calls of favouritism, the idea of separate histories becomes actually entrenched. This approach may appear inclusive, but actually obscures the fact that the colo­nial experience was a common, shared one.

In researching the 19th-century history of Mauritius, it became evident to the author of this study that the experience of indentured labour could not be truly appreciated without reference to slavery. Similarly, the aftermath of slav­ery could not be properly evaluated without reference to indentured labour. As has been demonstrated throughout the chapters, in the Mauritian context, these two labour systems influenced each other in important ways. A failure to fully appreciate their interconnectedness is a significant shortcoming in the TJC’s report, even more lamentable since its mandate covered an investigation of both.

It is submitted that any examination Mauritian history needs to follow an approach which examines how the existence of one part of society is affecting another at any given time, instead of seeking to find causes within one system singularly. The research at hand has shown that the arrival of Indian indentured labour in large numbers worked to the detriment of the ex-apprentices. Laws at the end of the 19th century, when the indentured labour period was drawing to a close, clearly favoured the establishment of a free and settled population, a boon which was not granted to slaves in 1835 post-emancipation, nor from 1839 onwards when apprenticeships had ended. This is because slavery had ended, yet bondage had not. Bondage continued to exist, because a colonial system based on exploitation continued to exist. Therefore complete emancipation in the sense of free and full participation in society by ex-apprentices was discouraged. As long as indentured labourers were subject to a coercive regime, former slaves could never achieve full freedom.

By the time the situation of Indian labourers had improved, the situation of slave descendants had deteriorated. Their numbers had dwindled and their participa­tion in the mainstream economy was small. The report notes that land-possession existed among the group, but was subsequently lost, in a process that the TJC was unable to clearly identify and ascribes to illiteracy and the “greed of neighbouring estates”, as well as expansion of the sugar industry.^[828] A clearer image emerges upon perusal of Volume II of the report, which addresses the issue of land dispossession.

It is clear from the report as well as Teelock’s paper that the “blame” for dispos­session suffered is put squarely at the door of the law,^[829] in a theme which emerges to be highly critical of the legal system overall. In first instance, the concept of “pre­scription”, derived from the French Civil Code as a way to obtain rights over land, has been criticized.^[830] Teelock simplifies the issue thus: “Prescription is a method of acquiring rights over property by occupying a portion of land for a fixed period of time. The rationale is to �?punish’ those who abandon their land.”^[831] The latter statement is not an entirely accurate observation. In fact, the French legal concept of prescription as described appears much in line with the English legal concept of adverse possession (and not to be confused with the English version of prescription, which is a method to obtain easements, meaning rights over land, but not to land itself). The rationale for the concept of adverse possession is not “punishment”, but rather, an incentive not to leave land (representing a valuable resource) unused. Certainly, nothing prevented the land being acquired by the wealthy on the pretext that it was not being used. The lack of safeguards against abuse however does not

mean the law was designed to be punitive against a particular section of society at a specific point in time; indeed, as indicated, the concept, for all its shortcomings, has existed for a long time across legal traditions and locations.

The assault on the law extends further, as Teelock claims: “the legal system and those who work within it are still perceived as an elite group that turns a blind eye to the injustices perpetrated in the name of the law.” It is evidently a perception she shares, for she concludes: “To put it simply, the law recognised slavery and the law thus contributed to the harm done to slaves.”^[832] Teelock is thus venting her frustration against “the bad lawyers with their bad laws”. Yet is the solution “better lawyers and better laws”? Abolition, whether of the trade in slaves or slavery itself, could be deemed “good law”. But as has been seen, both bans simply incentiv­ized a behaviour of avoidance: the trade continued and later, slavery was replaced with indenture. Most strikingly, the sugar tariff equalization of 1825, a measure which could be considered benevolent or at the very least neutral, had harsh con­sequences for the slave population, as discussed in Chapter 4. What this work has sought to highlight is the way in which law is imbricated in political and economic calculation - and in the way in which it incentivizes and disincentivizes and pro­duces differentially articulated outcomes such that even an ostensibly “good law” might have profoundly negative effects on a certain segment of the population.

The role of the law, its utility and potential, may capture the attention of non­lawyers, but is easily misinterpreted. Teelock’s observations were made with ref­erence to a TJC contribution written by Joyce Fortune, who attempted to make an evaluation of the role of law during slavery from a historian’s perspective.^[833] Fortune raises the possibility of establishing slavery as a social tort in the Mauri­tian context,^[834] an idea which Teelock believes merits further investigation.^[835] For­tune’s claim draws on Keith Hylton’s work regarding slavery reparations in the United States, though it appears her understanding of his argument is somewhat confused: “Keith Hylton proposes... that the litigants in the reparations suits should instead concentrate on the Social Torts, that slavery involves a category of Social Torts which are according to him more harmful and to which the tort law appears to be an inadequate means of seeking damages.”^[836] In a footnote she observes:

Note that using Tort Law alone as a means of redressing the injuries incurred during slavery in the reparations suits is insufficient for converting the abuses suffered into claims for damages. Tort doctrine involves “concrete” injuries verifiable by means of forensics, psychiatric and or medical examination, which are to be carried out during the time before the expiration of the statute of limitation to file a claim for compensatory damages.... However, in the case of slavery the perpetrators as well as the victims are long deceased and with them are buried all traces of malfeasance and under Federal Tort Law, there can be no crime because the defendants and the plaintiffs are no longer with us.³4

Fortune thus expressly acknowledges both the inadequacy and the inapplicability of tort law in the context of Mauritian slavery. Why the idea is therefore pre­sented as a viable avenue for redress in her main submissions and promoted as such by Teelock is not clear.

Taking up Hylton's proposal for claims against continually existing beneficiar­ies of slavery, such as corporations, Fortune notes that such entities may be diffi­cult to identify in the United States, “but in Mauritius, the case is very different.” She identifies the Mauritius Commercial Bank, and states that it “was founded in 1838 from compensatory funds obtained from the British Government as repa­rations for the loss of slaves after the abolition of slavery.”^{[837] [838] Unfortunately, this assertion is made without clear source attribution. As discovered in the course of research for this work, and noted in a footnote on the compensation pro­cess in Chapter 4, the Mauritius Commercial Bank was cofounded by English­man James Blyth, who made significant profits from negotiating debentures (in which slavery compensation had been paid) in London on behalf of Mauritian slave-holders. The bank was created in direct competition to the French planter- controlled Banque de Maurice. Whether Blyth, as a handler of the debentures, may be considered a slavery beneficiary is a possible, though not inevitable, argu­ment. In any instance, it is submitted that the Mauritius Commercial Bank does not have as straightforward a claim against it as Fortune maintains, not morally and much less legally.}

With reference to the abolition of the slave trade, Fortune's paper fails to appreciate the wider context in which it took place. Thus she states: “Farqu­har did not enforce the Slave Trade Abolition Act, which took effect in all British colonies in 1810 and nor was the Slave Trade Felony Act of 1813 ever enforced in Mauritius.”^[839] As discussed in detail in Chapter 3 of this work, while proclamation of the 1807 Act abolishing the trade was delayed until 1813 following the 1810 conquest, and local enforcement remained weak in subsequent years, it cannot be said that it was not “ever enforced”. It will be recalled that the issue of enforcement of the ban was tightly interlinked with the establishment of British authority on the island, in a process which had to ensure not only a peaceful transfer of power from the former colonists, but also the viability of the colony, all while attending to the implementation of imperial policy.

An in-depth legal analysis of the issues around Mauritian slavery has evi­dently been hitherto missing. It should be noted that Teelock in her paper repeatedly laments the complete absence of legal historians in Mauritius. The criticism of the function of the law as presented by both Teelock and Fortune reveals an unfortunate lack of legal scholarship which would provide the local discourse with a clearer understanding of legal mechanisms and jurisprudence. This work endeavours to make a contribution in this respect, by bringing a nuanced account of the operations of law which reveals aspects of the history of slavery and its abolition that are not evident to those who think about law only in terms of being “good” or “bad”, enforced or unenforced. It is hoped that the current research proves helpful to further multidisciplinary research on the history of Mauritius.