Recapitulation of research

7.1.1 Aims and objectives revisited

The research at hand has sought to demonstrate the profound influence law has upon the development of society. Specifically, the argument which has been pur­sued is that the impact of law may not only prove formative, but also constitutive.

This work has sought to illuminate the processes which have led to the “assem­bly” of Mauritian society via an examination of the 19th-century colonial laws which governed the workforce. Underpinning the research is the suggestion that labour management acted as the principal legal technology through which the composition and development of Mauritian society was influenced, impacting both the island's economy as well as social identities in a lasting fashion. Crucial hereby has been the concept of jurisdictional tensions, identified here as a series

1 Beaton, Patrick, Creoles & Coolies - Five Years in Mauritius (London: James Nisbet and Co., 1859), p. 15.

DOI: 10.4324/9781003313366-9 of contestations themselves born from the contradictory aims of the British colo­nial endeavour, which shaped that development. What emerges is that the two labour systems in question - slavery and indenture - far from being self-contained paradigms, fundamentally interconnected and created in Mauritius a society with very specific attributes.

The argument is not that Mauritian society of today is the direct result of 19th-century events. This would be to utterly disregard the developments of the 20th century, which witnessed the rise of communal politics, an increased relevance of religion, as well as the decolonization process. The last few decades in particular have seen the development of new industries which have acceler­ated the island's transition to a modern and largely stable multi-ethnic nation. The circumstances of the 19th century, however, while presenting only one part in this long-term evolution, did lay the decisive groundwork by drawing the fundamental lines upon which Mauritian society would develop and continues to be impacted by.

7.1.2 Research summary

Following colonization attempts by both the Portuguese and the Dutch, the first permanent settlers were the French in 1715, who from the beginning used pre­dominantly African slave labour to support their colonial endeavour. This marked the beginning of Mauritian society, initially established for the purpose of extend­ing French imperial power, given the island's strategic position in the southern Indian Ocean. Under French governance, Mauritius was transformed from wild territory to a settled colony with infrastructure, enterprise and commerce. Some sources describe Mauritius in the late 18th and early 19th century as a flourishing French community, while others emphasize poverty and squalor. In any instance, it is clear that at British takeover in 1810, French life was well-established with a strong local administration and judiciary.

British occupation had been originally pursued primarily to obtain a military advantage in the region, and while the neighbouring island of Bourbon (mod­ern Reunion) was returned to France, Mauritius was retained. The situation faced by the first British administrator, Governor Farquhar, was complex. He was charged with implementing British policy in a French-dominated colony while rendering this foreign rule palatable to its inhabitants.

However, the ban proved largely ineffective in practice, with slave traffic continuing clandestinely in and around Mauritius. As outlined in Chapter 3, the persistence of the slave trade was the result of the combination of a num­ber of factors. Firstly, there existed an undeniable need for workers, to enable and maintain colonization of the island. Secondly, the geographic location of Mauritius, southeast of Madagascar, allowed the African slave trade to con­tinue with relative ease due to close proximity to the markets.

On the wider issue of slave welfare and the ostensible purpose of the Act ban­ning the trade as an ameliorative measure, Chapter 3 in first instance questions the humanitarian objective behind the prohibition. Not only did the abolition in practice serve to expand the investigative powers of the British navy, the enforce­ment of the slave-trade ban introduced the new concept of “Prize slaves”. After being “liberated” from an illegal ship-trading vessel, slaves were not set free, but became subject to a labour system akin to slavery, and were thus essentially “recaptured”, though instead of belonging to an individual owner, they were considered as property of the Crown.

The abolition of the trade in slaves was thus a complex issue, itself not adopted by the metropolis for purely compassionate reasons.

As recounted in Chapter 4, the eventual announcement of the abolition of slavery itself was received badly in Mauritius. In the preceding decade, amelioration poli­cies as directed from Britain had not resulted in noticeable improvements in the conditions of slavery. With the planters' focus firmly on the cultivation of sugar cane, much of the island's wealth and investment had become dependent on the availabil­ity of coercible, inexpensive labour, and the local British administration loathed to interfere. This development caused much the concern of the Colonial Office, with Viscount Goderich coming to express regret at the 1825 equalization of sugar tariffs, which he felt had operated to the profound disadvantage of the slave population.

Thus, ironically, the most decisive measure which influenced labour migration in Mauritius was not any major imperial statute, nor a regulation directly related to labour issues as such. Instead, it was the decision to allow Mauritius to export sugar to the British market at the same rate as the West Indies. The tariff parity provided further impetus to ignore the prohibition on the slave trade. Planters on the island achieved the utterly unexpected by drastically increasing the capacity of Mauri­tius to cultivate sugar. Another unintended consequence of metropolitan policy, equalization had the effect of rendering sugar cane the main crop and steered Mau­ritius towards a monoculture.

The Abolition of Slavery Act 1833 came into force in Mauritius in 1835, and the apprenticeship system, which delayed the actual emancipation of slaves by several years, gave the planters the possibility of experimenting with the intro­duction of indentured labour from India, discussed in Chapter 5. Quoting the Nigerian historian J. F. Ade Ajayi, who raises the issue of “initiative” in the colo­nial relationship,^[806] Jurgen Osterhammel stresses that the colonial situation was not a simple dichotomy of oppressor and oppressed, where the powerful western powers acted and the natives merely reacted, but rather should be understood in terms of a continuous striving of all involved for “opportunities to act”.^[807] For Mauritian slaves, the chance to act (or rather, to act through omission) arrived when abolition was effected and they refused to be employed on the same planta­tions where they had previously toiled. Full emancipation witnessed a near com­plete withdrawal of former slaves from plantation labour.

Mauritian historian Vijaya Teelock argues that the experience of plantation slavery left a strong desire for independence and freedom with the former slaves.^[808] Her suggestion is supported by an analysis of the aftermath of abolition in the Indian Ocean by Martin Klein.^[809] Klein concludes that while the slave trade ini­tially persisted in Mauritius and its neighbouring islands due to the needs of the sugar economy, the disappearance of slavery was more complete because “the forms of slavery found there were more onerous”.^[810] This is in contrast to other geographical areas where certain types of slavery could frequently afford protec­tion and security. According to Klein: “Wherever plantation slavery existed, for­mer slaves resisted not only disguised forms of slavery, but the plantation system itself.”^[811] This work agrees with this assessment, but expands this view by observ­ing that the retreat of former slaves cannot be understood as merely a unilateral decision on their part. The planters were only too willing to exchange their black workforce for an Asian one. Instead of offering better conditions and acceptable wages, they increased the number of Indian labourers and attempted to control labour costs by maximizing supply. Rendering planters independent of their for­mer slaves, the process, if not solely responsible, must be regarded as significantly contributory to the marginalization of the black population.

Chapter 5 argues that the first phase of indenture, which in Mauritius occurred at the same time as the apprenticeship period, can therefore also be seen as the time when racial rivalries were first introduced and exploited. Consequentially, the most profound effect of the abolition of slavery in Mauritius was not the emancipation of slaves as such, but the impetus it gave to alter the composition of the island's inhabitants by the introduction of a new type of worker.

As Mauritius was ascending in its role as an important sugar producer at a time when other colonies went into decline, economic interests converged with political considerations and found expression in laws which over the years proved increasingly coercive on the nominally free labourers from India. While inden­tured labourers were not “chattels” in the sense of being slaves, the research presented in Chapter 5 demonstrates that they were by no means “free” workers. The evident deceit and coercion present in the recruitment process amounted to exploitation of the most vulnerable segments of Indian society, sought out primarily for their physical constitution and attitude. Whilst the end of slavery was externally motivated, through the passage of imperial law, the transition from slavery to indentured labour was effected predominantly through planter prefer­ence. The local planters had some familiarity with Indian workers, and sought them out in greater numbers after the Act abolishing slavery was passed. Notably, African indenture was not pursued in Mauritius, due to its resemblance to the practice of slavery, and after experiments with Chinese indentured labour (dur­ing a suspension period) proved unsatisfactory, India became established as the preferred labour pool.

In preparing Indian workers for plantation conditions, social and cultural norms were purposefully broken, and qualities sought in the prospective labourer, such as adaptability and docility, were created by eliminating other aspects of his or her identity, for instance caste or family status. Reports of severe shortcomings in the recruitment process in the form of kidnap, unlawful imprisonment, deception and misrepresentation lead to the suspension of Indian labour migration. Greater state involvement was being called for, as a way to prevent future abuses.

Chapter 6, which examines the period of government-sponsored indenture, shows however state involvement did not prevent abuses, but rather allowed for new types to emerge. An analysis of the relevant legislation shows that immigra­tion and labour regulation worked together to limit both mobility and employ­ment options of the workers in Mauritius, creating conditions that tied them to sugar plantation work and operated to extend their contracts or disincentivize their return to India. With the introduction of a legal distinction between “Old Immigrants” and “New Immigrants”, vagrancy laws were applied to compel even those who had already completed their contracts back into work on the sugar estates. The penal framework in particular was noteworthy for creating a pub­lic law relationship between employer and employees instead of a private law relationship based on the labour contract. Enforcement of contracts was skewed in favour of employers, as non-execution on their part (such as nonpayment of wages) was treated leniently, whereas breach of contract on part of the labour­ers resulted in criminal penalization. A high level of bureaucracy was employed to not only control the labour options available to the workers, but also their mobility generally, with heavy penalties (such as a double loss of wages in case of imprisonment) as well as prolongation of their contract in instances of contra­vention. As the number of indentured labourers increased to become the largest ethnic group on the island, the situation was severe, reflected in the high suicide rates among the Indian population at the time.

When worldwide demand for tropical sugar waned towards the end of the 19th century, so did the demand for workers to occupy the plantations of the colonies. Management of the sugar industry transformed, giving birth to a new Indian peasantry where land ownership and marriage laws encouraged labourers to set­tle, which is in marked contrast to the policy at the very beginning of indenture, when the main consideration was to ensure the workers' return after contract completion. Towards the end of the 19th century, Mauritius found itself with a large Indian population on an upward trajectory, an ever-more-marginalized group of slave descendants, and a white minority struggling, yet firmly keeping hold of its influential position as the ruling class.

Two general conclusions may be drawn from this account. In the first place, and as it has been suggested in this work, the composition of early Mauritian society was fundamentally influenced, and effectively constituted, by reference to economic concerns, validating Karl Polanyi's argument which regards society as indivisible from its economic system. Recalling Duncan Kennedy's conceptualiza­tion of the distributive effect of the law, it has been demonstrated that the law influenced the distribution not only of rights and privileges, but also incentives and inducements, often with unforeseen effect. During the first few decades of the 19th century, the slave trade was regarded as essential to the very existence of colonial society in Mauritius, and thus was perpetuated by the French ruling class even after British conquest and the prohibition of the traffic this entailed. When Mauritian sugar was admitted at preferential rates to the British market 1825, the economic stimulus not only provided further reason to ignore the ban, but the creation of a monoculture that followed acted to the fundamental disadvantage of the slave population, with imperial ameliorative policies remaining largely with­out effect. The legal abolition of slavery a decade later merely closed one pool of labour, for in the continued endeavour of pursuing a profit-extracting strategy, the sugar interest in Mauritius simply sought out another pool. The size of the Indian population and the marginalization of former slaves and their descendants has its roots in the labour policy pursued during the mid-19th century.

In the second place, it may be observed that the autonomous, yet constitu­tive quality of law is to be understood not merely by reference to how effective legal interventions of one kind or another were, but also by reference to their unanticipated consequences. The abolition of the slave trade, which as has been argued was not an entirely humanitarian measure in itself, led in Mauritius to an exceedingly detrimental position by simply rendering the trade secret, result­ing in very high numbers of unregistered slaves, the number of which schol­ars are able to only estimate. The abolition of slavery itself did effect the legal emancipation of slaves, but also gave impetus to the introduction of another type of worker which contributed significantly to the ostracism of former slaves and their descendants, thus effectively proving detrimental to social emancipa­tion. The structures designed for the introduction of free contract workers led to an extraordinarily coercive system, which with greater government involvement became not less so, but even more restricting for workers. As regards the clas­sification of labour, or rather “labour power” as per Marx, as a commodity, the research at hand has demonstrated that commodification is not dependent on legal status of the worker. In Mauritius, the indentured labourer was as much a commodity as the slave as a result of the seemingly inexhaustible pool of potential workers in close proximity to the island by virtue of its geographical position. The attitude towards the labouring population, whether as evidenced through the failed amelioration policies during slavery or lack of care in investigating suicides on estates during indenture, demonstrates that workers, during either epoch, were considered expendable. This was despite the ban on slave trading during the former era, and irrespective of the recruitment costs of Indian labourers during the second.

7.2