CONTEXT: INTERNATIONAL LEGAL DEBATES AND MAURITIAN SLAVERY

Public discussion of slavery has recently intensified globally, especially in the USA, Africa and Europe, the poles of the “circular trade”. Indeed, there has been a remarkable upsurge of both scholarly and popular interest in the history and consequences of slavery.Footnote ⁴ In the USA, it has moved from being the subject of a long-term fringe discussion among intellectuals to becoming a current, mainstream debate.Footnote ⁵ Museums have been created, public holidays instituted, statues erected and demolished, research has intensified and reparations mooted. Entire professions such as accountants have had their role in slavery and the slave trade dissected.Footnote ⁶ The debate has acquired an increasingly international dimension, with a large number of apologies being issued from certain nations to others.

In the USA, the reparations demand has brought some positive if restricted benefits. In some states, companies are required to investigate and disclose their role in slavery.Footnote ⁷ Several major American banks have apologized for the profits their ancestor companies made from slavery and in some cases have set up funds for the education of slaves' descendants. In the USA, the issue is clearly linked to other major matters, not least “corporate social responsibility” and national cohesion. Considerable momentum has thus been generated behind the demand for reparations over the last two decades, bringing some minor material results.

Over the same period, there have been fewer results in the international context. The first (and so far only) pan-African conference on reparations occurred in Abuja, Nigeria in 1993.Footnote ⁸ International conferences held in Durban in 2001 (Durban 1) and 2009 (Durban 2) raised the issue's international profile, but took no very concrete decisions. Durban 1 involved 170 countries and focused on the reparations issue principally in relation to ex-imperial states, ending with a declaration that slavery and the slave trade constituted crimes against humanity. Reparations were strongly resisted by the ex-imperial states concerned, with the support of some African countries.Footnote ⁹ Durban 2 generated no material progress.

Powerful general legal arguments have eloquently been made in support of international reparations, but there is now a need to supplement and elaborate these at the level of individual ex-colonies in order to bring more focus and depth to the discussion. Lord Gifford made a major initial contribution to the general arguments at the Abuja conference.Footnote ¹⁰ In his compelling and influential paper, he argued that where crimes against humanity are concerned, appropriate forms of legal redress already exist in international law. Where mechanisms or remedies are inadequate, these could be devised on the ubi jus, ibi remedium [where a right exists, so too does a remedy] principle. The principle of reparations paid by states to other states and to victims was established by the payments made by Germany and Austria for wartime crimes in 1952 (to Israel) and 1990 (to survivors). Some legal grounds also exist for claims by descendants, as exemplified by the British Foreign Compensation Act of 1950. Gifford advocated claims on behalf of all Africans whether living in Africa or abroad; claims would be made against the ex-imperial countries for economic, social, cultural and psychological damage caused by slavery, to be settled by an independent international tribunal if agreement could not be reached.

These arguments help establish the baseline for a discussion concerned with a specific country. This article focuses on the “legal at the time” argument which Gifford simply set aside on the grounds that the crime's sheer dimensions render it invalid. While Gifford's treatment of the argument has force, there is scope for an alternative approach. There are arguably strong prima facie grounds for rejecting the “legal at the time” contention on the basis that events as documented by historians show that it is at least in part an incorrect and not simply an inappropriate argument.

The “legal at the time” argument is a cornerstone of the case for refusing reparations. Until the League Of Nations' Slavery Convention of September 1926 (which came into force on 9 March 1927), no instrument existed under international law outlawing slavery. The initial “permissions” for Catholic countries to practise slavery were simply religious edicts accorded by successive Popes. The argument is linked to the reality that most jurisdictions forbid retrospective legislation in their constitutions.Footnote ¹¹ Max du Plessis suggests that it is very difficult to argue that acts of slavery committed “then amount to a violation of fundamental norms of international law now”.Footnote ¹² Others have also argued that, as slavery was “legal at the time”, demands for reparations should be rejected.Footnote ¹³

However, there is evidence in the Mauritian case that at least some of the practice of slavery involved prima facie breaches of then current laws. Colonialism was and is of course legal; yet slavery was also inextricably linked to political power in colonial societies. The power relationships both between slaves and slave owners on the one hand, and between the slave owners and the French metropolitan revolutionary and British “ameliorationist” authorities on the other, were such that slave owners acted from a position of strength which meant that they could often afford to breach the law with impunity.

Slavery and the slave trade were global phenomena, but the Mauritian case is a suitable and in some senses favourable setting for developing these arguments. First, it involves several ex-imperial powers. Mauritius experienced de facto rule by the Dutch East India Company in the 17th century and then formally by the French (1690–1810) and British (1810–1968) empires. French and English law obtained simultaneously for a long period on the island and continue to do so. All of these important ex-imperial countries and their very different legal systems are therefore involved. Secondly, the descendants of Mauritian slaves constitute about 25 per cent of a population of some 1,275,000.Footnote ¹⁴ Claims therefore affect a relatively compact group; the low numbers facilitate the plotting of human interconnections, important in building evidence of effects on descendants. Thirdly, partly because it links to the ever-present question of race in this multi-racial society, the issue remains a live one in society at large.Footnote ¹⁵ Collective memories of slavery and bonded labour have long been current reference points; the major Mauritian labour revolts of the late 1930s were presaged by meetings in 1935 commemorating the abolition of slavery a century earlier.Footnote ¹⁶ Awareness of the history of slavery and bonded labour is wide among Mauritians. Indeed, it has been suggested that slavery continues to exert a cultural influence on relations between managers and employees on the island.Footnote ¹⁷ As demonstrated below, Mauritian historians have been exceptionally active in documenting slavery's past. Finally, at least one organization, the long-standing, non-partisan Organisation Fraternelle [Brotherly Organization] and its successor organisation Les Verts Fraternels [The Fraternal Greens], has been devoted to furthering the reparations cause.Footnote ¹⁸ It demands that the slave owners' descendants contribute to a fund instituted by the state to ameliorate the position of slaves' descendants, to be administered by the descendants themselves under the control of the Mauritius National Assembly.Footnote ¹⁹ Other parties, such as companies and ex-imperial states, would also be asked to contribute. Elsewhere, Mauritania has established a fund to reduce poverty among former slaves. Although this is a different type of fund from that proposed by the Organisation Fraternelle, it does demonstrate that some progress has been made in this direction in Africa and that others have recognised the measure as appropriate.Footnote ²⁰

Mauritius has taken significant steps to recognize and commemorate slavery and its aftermath. The abolition of slavery has been celebrated since 2011 through a public holiday on 1 February. In 2008, Le Morne Brabant, a mountain used as a hiding place by fugitive slaves (maroons) became a UNESCO world heritage site. To the best of the authors' knowledge, Mauritius was the first country in the world to establish a commission with the central objective of assessing the effects of slavery and its aftermath: the Truth and Justice Commission (TJC) was established in February 2009 “to make an assessment of the consequences of slave and indentured labour during the colonial period and up to the present, and for that purpose, conduct as complete as possible an analysis”.Footnote ²¹ The TJC's work and its recently published report have raised public awareness further and may stimulate detailed scholarly understanding of both the possibility of reparations and the importance of documenting claims adequately. Both are important issues. Reparations and collective claims involve inherent difficulties in identifying possible victims and offenders but these are reduced in the case of Mauritius. Many descendants of slaves may trace their ancestors through their genealogy, a possibility made available to citizens by the Mauritian Government.Footnote ²² However the TJC's terms of reference and hence its recommendations explicitly reject the reparations option, although this verdict is contested by Les Verts Fraternels and the demand for reparations therefore continues to be articulated in the public sphere. Archival resources are crucial to reparations and legal cases alike. The National Archive of Mauritius, a major potential resource for the history of slavery, was founded at the beginning of the 19th century and therefore may provide documentary evidence to support the case for reparations although it is poorly resourced and has no publicly-available catalogue.

The national context may therefore be summarized as follows. First, slavery involved several ex-imperial powers. Secondly, there is a high level of public awareness. Thirdly, the TJC's report and supporting documentation may, together with long-standing archival resources, assist in providing evidence that assists in building individual and collective cases.

One possible ground for actual legal claims seems likely to be one of the versions of “unlawful enrichment” available under French, English and Mauritian law. This is dealt with further below. The consequence of such enrichment seems likely to have been pain and suffering caused by awareness of the brutal treatment of ancestors, potentially giving rise to concrete mental and physical health issues. Although it may be that (as has been argued on the basis of demographic analysis to be the case in the USA), subsequent generations suffered actual material consequences from the treatment of their ancestors, identifiable consequences tended to dissipate with time.Footnote ²³ On the other hand, Zajonc suggests, on the basis of detailed econometric analysis, that more persistent “legacy of slavery” effects exist, reducing black people's capacity to undertake economic enterprise.Footnote ²⁴ The relatively disadvantaged position of Mauritian Afro-Creoles may therefore conceivably be connected with these diffuse effects from slavery.Footnote ²⁵

There are numerous acute issues with actual legal claims. The first is that they must be ratione temporis: their temporal limits must be defined. Secondly, they are difficult to document because they rely on archival sources which may not exist or which are likely to contain lacunae. Thirdly, they would necessarily have to be conducted at extreme historical distance. Even if these demanding conditions proved superable, certain types of claim in English law such as those for personal injury may be ruled “out of time” in legal terms, ie have gone beyond the point where the law may be invoked. Cases exist in English law where courts have refused to reject personal injury claims on the basis that they were “out of time”.Footnote ²⁶ Yet the personal injury would have to be established as occurring to the plaintiff as a direct result of slavery; simply establishing a wrong done to an ancestor and a relationship to that ancestor would be insufficient. Cases have failed on this ground in the USA.Footnote ²⁷ It is therefore suggested that reparations represent a more realistic route and that the political case may be buttressed by legal arguments.

PRIMA FACIE LEGAL INFRINGEMENTS UNDER DUTCH AND FRENCH RULE

Slavery and the slave trade began in Africa in the 15th century and, by the early 16th century, were both established and widespread practices.Footnote ²⁸ Mauritian slavery and slave trading started at a later stage and lasted, in historical terms, for a relatively short period.Footnote ²⁹

In 1598, the Dutch East India Company (VOC) first arrived in Mauritius; in two periods of occupation between 1641 and 1710, it practised slavery there through a governor and subordinate junior officers.Footnote ³⁰ However, being in the words of one historian “a thoroughly disreputable crew”,Footnote ³¹ it pushed a large number of slaves to escape and may eventually even have been forced out of occupation by the large number of slave maroons (escaped slaves).Footnote ³² If so, this was the only such case of ex-slave success in expelling Europeans, at least before the Saint Domingue revolt at the end of the 18th century. In the process, savage physical punishments were meted out to slaves and maroons.Footnote ³³ The VOC first left the island in 1658 and was absent until it re-occupied it in 1672. Slave maroons, because of their dependence on settlers, probably did not survive. In the second period of occupation, Mauritius acquired a reputation as “one of the most unregulated and anarchic of such settlements”,Footnote ³⁴ and another sizeable maroon community was created. A state of constant friction obtained between maroons and settlers and, in this second period of occupation, three named slaves were brutally executed without trial by the VOC for allegedly burning down the company's stores and headquarters in July 1695. This was clearly unlawful at the time, not because (as in the case of the period 1794–1803) slavery itself was unlawful per se, but rather because the actions of the slave owners appear to have been so. The VOC was unquestionably responsible and many VOC descendant companies exist. One of the victims was Anna de Bengal, whose descendants came down from the hills after the abolition of slavery looking for contract work and whose descendants appear to be traceable well into the 20th century.Footnote ³⁵ The Dutch finally left the island in 1710.Footnote ³⁶ Given the existence of several archives containing VOC records and the company's clear responsibility, a claim for reparations from successor companies or indeed the Dutch state which oversaw and benefitted from the process may be viable.

In 1715 Mauritius came under French occupation. Again, exploitation was organized initially by a company, in this case La Compagnie des Indes (1715–67), which conducted the slave trade on the monarch's behalf until direct monarchical government began in 1767. The monarch received a commission on every slave transported and delivered.Footnote ³⁷ The company also colonized the neighbouring island of Réunion (then the Ile de Bourbon).Footnote ³⁸

Serious exploitation of Mauritius began with Bertrand Francois Mahe de La Bourdonnais, who was appointed in 1735 to administer the island and became a key figure in the colony's development. La Bourdonnais focused on sugar production, competing fiercely with the British to become leaders in the commodity's production and sale, which required a huge input of labour.Footnote ³⁹ The slave population grew from approximately 15,000 in 1767 to over 65,000 by 1807, essentially in response to the need for agricultural labour.Footnote ⁴⁰

The main law governing slavery in Mauritius under French and British rule was the Code Noir [Black Code] (the Code), initiated by Colbert in 1685 and embodied with small modifications for Mauritius in Les Lettres Patentes [Letters Patent] of 1723.Footnote ⁴¹ Shockingly, because of its inhuman terms, it is said to have represented an advance on previous practice.Footnote ⁴² The Code applied throughout the French colonies, with a significant period of suspension and exceptions discussed below, until France finally abolished slavery in 1848.Footnote ⁴³ It consisted of 60 articles, modified in some cases to permit adaptation to local conditions.

Treatment of the Code and its provisions by one influential author is located within a wider tradition of horror at the inherent inhumanity of slavery. Louis Sala-Molins stressed throughout his interpretive work on the code that it reduced slaves to the status of animals or chattels (“biens meubles”).Footnote ⁴⁴ This is entirely correct, but his emphasis on the Code's nefarious nature,Footnote ⁴⁵ though justifiable, should not obscure the fact that some slave owners broke those clauses embodying even minimal benefits for the slaves. Slave owners did not in this sense behave rationally; rather, they exercised their power over slaves for psycho-social reasons that came to predominate over economic rationality which would have suggested recognizing slaves as valuable commodities.Footnote ⁴⁶

The Code was a triple compromise between the recognition that biens meubles had to be looked after precisely because they were property, the perceived need to assert rigid authority over them and Catholicism. The production and reproduction of slaves and slavery was rendered problematic by their often very low fertility and high mortality rates. Sala-Molins also correctly evokes the influence of Catholicism on the Code's terms.Footnote ⁴⁷

Articles 22 to 26 required masters to feed and clothe their slaves to certain standards.Footnote ⁴⁸ Cases of masters not clothing slaves on these terms have been documented; aged slaves were often treated in this way, as “non-entities and a burden for their masters”.Footnote ⁴⁹ Yet article 27 of the Code specified that slaves who were infirm from age or sickness were to be fed by their masters or maintained publicly at their expense.Footnote ⁵⁰ This latter clause has been shown to have been broken regularly in Mauritius.Footnote ⁵¹ Specific punishments were set out in articles 36, 38 and 39 for slaves, fugitive slaves and those who harboured them.Footnote ⁵² Yet even the vicious punishments specified were exceeded and unlawfully applied to children as well as adults.Footnote ⁵³ Infringements of the Code's terms are likely to have been sufficiently significant to have been both the subject of contemporary documentation and also of fundamental importance to the slaves' (and their descendants') well-being. Some appear not to have been prosecuted at the time.Footnote ⁵⁴ These infringements would form part of a legally-based case for reparations, and require further historical research.

Even if one were to accept Karl Noël's account of a relatively benign application of slavery in Mauritius for much of the 18th century, and if legal infringements by owners were less systematic than elsewhere, the situation changed at the end of the 18th century when structural and systemic legal infringements arose. The Code and the system which it purported to legitimize and regulate were sharply challenged by the French Revolution. La Déclaration des Droits de l'Homme et du Citoyen [Declaration of the Rights of Man and of the Citizen] of 1789 (DDHC) established clear and comprehensive rights for citizens, including the right to freedom: the first-mentioned and inalienable right specified in the text. It also enshrined, in article 4, property rights, which may have been thought to imply the right to own slaves. However, there is little doubt that the prior right, that emphasized from the very beginning of the DDHC, was the right to freedom; in view of its interpretation since the enactment of the DDHC, this right appears to offer a basis for reparations claims.

In direct response to the French Revolution and more specifically to the DDHC itself, an historic slave insurrection broke out in Saint-Domingue (now Haiti) in 1791, sending shock waves around the entire world because it de facto abolished slavery in that significant and highly economically productive colony. As CLR James put it, the slaves “had construed it [the Revolution] in their own image”.Footnote ⁵⁵ Crucially, on 16 Pluviose, An II (1794) and after much debate with the opposition, the French government in the form of the National Convention abolished slavery in all French colonies (considered, since 1790, an integral part of France) on the basis of the DDHC. However, this occurred only after a protracted struggle and it was evident that it was controversial within the French governing class. The governmental envoys sent to Mauritius to ensure its application were physically threatened and L'Assemblée Coloniale, which governed the island's affairs from 1790 to 1803 (formally subject to the laws of the French Republic), refused to follow it.Footnote ⁵⁶ The colonists thus rejected French law, but the government did not enforce its decision to abolish slavery, despite the fact that it had in 1790 declared the colonies an integral part of France and that it also had the support of many soldiers on Mauritius who had taken black women as concubines and wished them to be free.Footnote ⁵⁷ Theoretically at least, the colonials could have been forced to follow French law but they were not, possibly because of the strong opposition that the abolitionists had encountered or because the French had little capacity to enforce any decision in a colony where the local élite, allies in the fight against the British, threatened secession. Yet, in Guadeloupe, slavery was abolished.Footnote ⁵⁸ Nonetheless, at least until 1802 and arguably 1805, when the Napoleonic government reaffirmed the Code Noir's application, all slave owners in Mauritius used slaves unlawfully. As Noël puts it, “rien de particulier n'advint à l'Isle de France jusqu'en 1803” [nothing particular happened in Mauritius until 1803] when Napoleon became consul.Footnote ⁵⁹ The “nothing particular” referred to was that slavery continued in full force. Napoleon's reaffirmation of the Code's application confirms that for the previous decade it had been invalid. Persons unlawfully enslaved in that period and their descendants should therefore have a case for compensation against successor companies, as should those born into unlawful slavery and their descendants.Footnote ⁶⁰

This history may open successor companies to claims for unlawful enrichment, where cases appear most likely to succeed under French law. “Enrichissement sans cause” [enrichment without justification] is the potential basis under French property law: that nobody may be enriched without a valid reason. The concept does not share the same legal basis as the equivalent offence under English law, since under the latter the claimant must prove that the defendant has acted dishonestly. Time limitations do not apply to such claims in French law. A claim arises when someone has acted to someone else's detriment by adding value to his own property. There is no need to prove that there was an agreement between the parties.Footnote ⁶¹

Two principal conditions must be fulfilled to demonstrate enrichissement sans cause: the material condition and the cause of action. The former condition has three elements. The first is that someone's property has gained value, property in this context having a broad meaning. The second is that the defendant has acted to the claimant's detriment and as a consequence the latter has suffered a loss that has added value to the defendant's property. The third element provides that there must be a causal link between the party gaining the advantage and the party suffering the loss.Footnote ⁶² The second main condition is the cause of action. This differentiates enrichissement sans cause from unlawful enrichment under English law. Under the latter, to build a case based on unlawful enrichment, the claimant has to prove that the defendant has acted dishonestly. Under French law, they do not.

Whether this offence may be the basis of a case, either against those slave owners who received compensation from the British government for the granting of freedom to their slaves or against the Mauritius Commercial Bank which subsequently became profitable on the basis of that compensation, may be tested, since the law applies in Mauritius and the conditions may be met despite many complex uncertainties.

Whatever the case may be in the enrichissement sans cause arena, it is clear that the legal status of slavery changed in a broader sense as a result of the French Revolution. Historians differ in their assessments of Mauritian slavery. The most thorough account of the practice under French rule is that of Noël, who as indicated above presents a generally benign picture, despite or perhaps because of the lack of slave voice in his work. According to his Francophile account which verges at times on the Panglossian, Governor La Bourdonnais took measures to improve the slaves' lot.Footnote ⁶³ More generally, slaves were not systematically mistreated;Footnote ⁶⁴ “les maitres inhumains furent rares; le système patriarchal y était pratiqué par les maitres avec un certain bonhomie” [inhuman masters were rare; the patriarchal system was practised by masters with a certain bonhomie].Footnote ⁶⁵ Teelock justifiably criticizes Noël's position,Footnote ⁶⁶ following Ross's argument that slavery, as a system based on force, could not be mild.Footnote ⁶⁷ Yet Noël's point may retain a certain restricted validity, suggesting that infringements prior to the structural insubordination of the colonists were comparatively incidental. The legal arguments became powerful and comprehensive after 1794 when the local French slave-owning élite refused to apply French law, with the consequence that slavery per se was at least arguably unlawful.

These arguments apply to descendant companies and the French state. Recent developments in France have shifted the context in which history is currently being discussed. On the double centenary of the French Revolution, France sought explicitly to come to terms with its own history and, consequently, with its role in slavery. The question arises as to whether this has advanced or obstructed the case for reparations and legal claims.

On 10 May 2001, the French Assemblée Nationale enacted the Loi Taubira,Footnote ⁶⁸ which declared in its first article that both the slave trade and slavery constituted crimes against humanity, crimes that became firmly established in international law after the Nuremberg trials. Statutory recognition that slavery was a crime against humanity is significant because cases brought alleging such crimes are not subject to time limitations. The law condemns both the slave trade and slavery, and any French involvement in them. The law's second article provides that both activities be included in the history syllabus in secondary schools. Its third article states that the French government intends to request the Council of Europe and United Nations to commemorate the abolition of slavery and the slave trade internationally; it also requires France to bring together all the countries involved in those activities to agree a date for commemorating their end.

The Loi Taubira is appealing in its explicit recognition of the situation. However it also establishes a potential roadblock to claims for reparations against France or any of those countries involved. The law's promoter, Christine Taubira, claimed in her speech proposing the law and also in print that the payment of reparations is impossible to realize.Footnote ⁶⁹ Her position is debatable. The question of whether pecuniary actions may be brought in a similar case was ruled on in a decision by the Conseil Constitutionnel in February 2004. The Conseil is not a court but has authority to assess whether a law contravenes the constitution when appeals are made to it by competent persons such as parliamentary deputies and senators. Its decision was reached following passage of a law apologizing for the state's treatment of Jews during the Second World War, for which Jewish community organizations sought compensation from the French government. The Conseil Constitutionnel held that: “[l]aws enacted by Parliament to condemn particular past events and which declared that these events are crimes against humanity are not open for pecuniary actions. For these laws are also called memorial laws.”Footnote ⁷⁰

The Conseil Constitutionnel's decision would have to be overturned for the Loi Taubira to provide a basis for claims of any sort. Yet the Conseil d'Etat later stated in a 2004 opinion that the purpose of a law is to provide rather than to deny rights to individuals, arguably giving rise to grounds for a possible challenge.Footnote ⁷¹ Some basis for building a case therefore arguably exists in the “fundamental principles” of French law. The Conseil d'Etat (established by Napoleon in 1803) is the highest court in French administrative law. It decides on these principles, which are neither mentioned in the French Constitution nor enunciated in any statute. The “fundamental principles” are unwritten rules to which a judge may refer if rights have been breached.Footnote ⁷² In Société Eky it held that the DDHC has always been part of the French Constitution, and further held that actions may be brought against the state under its terms.Footnote ⁷³

In a 1956 judgement relating to freedom of association, the Conseil d'Etat decided that certain rights cannot be denied to an individual. It also held that the state cannot amend them.Footnote ⁷⁴ The incapacity of the state to change these rights was reaffirmed in Condamine a year later.Footnote ⁷⁵ Further, and crucially, the Conseil ruled in the same judgement that, since they originate in the DDHC, certain rights are imprescriptible, and no time limit can operate against individuals. The first right announced by the DDHC itself is of course that to freedom and, although the DDHC did not itself formally abolish slavery, its terms are, as the slaves of Saint Domingue argued, entirely incompatible with slavery.

These judgements appear to hold out some hope for legal action under French law, directed at the French state (in which case action would have to be taken in France) and the successor companies to the Compagnie des Indes. The Conseil Constitutionnel recently made a judgement that appears to learned commentators to criticize the state for passing memorial laws, implicitly calling on legislators either to desist from doing so or to give them normative effects. The judgement asserted the unconstitutionality of the memorial law's article denying citizens the right to freedom of expression if they deny the Armenian genocide of 1915.Footnote ⁷⁶ Nevertheless, the judgement criticized these laws' lack of normative effects and this issue remains to be resolved. Any resolution is likely to have significant consequences for the arguments put forward in this article as well as for the law itself. Currently, the situation is that these laws are increasingly contested by deputies, forcing the issue for legislators.

PRIMA FACIE LEGAL INFRINGEMENTS UNDER BRITISH RULE

France lost possession of Mauritius in 1810 and, by the Treaty of Paris of 1814, Britain acquired permanent possession of the island and its dependencies. The slave trade had already been abolished in all British colonies in 1807; the Slave Trade Consolidation Act of 1827 extended and consolidated the prohibition.Footnote ⁷⁷ The slave trade nevertheless persisted, as some countries permitted its continuation and British companies continued to profit from it. It was alleged that the first governor of Mauritius, Sir Robert Farquhar, connived at its unlawful persistence there.Footnote ⁷⁸ Many of the slaves used on Mauritius were unlawfully imported; it has been suggested that many were brought from the French-held island of Réunion where slave trading remained legal.Footnote ⁷⁹ The descendants of those people traded have a prima facie case against descendent companies and possibly against the British government if active connivance can be shown.

When Britain took Mauritius, it did so via a significant compromise with the Franco-Mauritians. Britain acted cautiously for fear of upsetting this established governing élite, many of whom owned some of the 55,000 slaves then on the island.Footnote ⁸⁰ French was retained as an official language and those previously administrating Mauritian affairs remained in office. The legal system was essentially unchanged. French law remained in force, although certain areas of law not covered by French legislation came under English common law.Footnote ⁸¹ The position of the strong and cohesive Franco-Mauritian agricultural élite was thereby consolidated under the umbrella of British rule.Footnote ⁸² This historic compromise had significant consequences for the regulation of slavery and later of bonded labour.

The period 1815–35 saw considerable conflict between the British imperial authorities and the Franco-Mauritian élite on the slavery issue. Though the lawfulness of slave owners' actions was less categorically thrown into question than it had been immediately after 1794, it was nevertheless questionable after the British instituted a protector of slaves with the ostensible aim of ameliorating their conditions. This brought major conflict with the Franco-Mauritians and, in 1832, provoked open revolt by them; the first protector was soon pushed out as the governor took the Franco-Mauritian side. This was part of a wider revolt against British amelioration efforts.

In the period of British rule before emancipation, numerous laws were introduced to improve the position of slaves, but these were not observed by the slave owners and indeed were explicitly rejected by them. For example, after 1827, wages had to be paid to slaves working on Sundays. Yet these laws were, according to the leading historian of slavery in that period, “ignored altogether”.Footnote ⁸³ The entire corpus of “amelioration laws” was rendered “almost inoperative” by the Franco-Mauritian slave owners.Footnote ⁸⁴ For example, despite article 11 of the 1827 Ordinance on the Amelioration of Slaves which forbade them, whips were undoubtedly used on slaves; government officials and planters alike accepted that this was the case.Footnote ⁸⁵ The Appeal Court, dominated by Franco-Mauritians, rendered the punishment laws nugatory. As a result, the notoriously brutal slave owner Desjardins had a fine, for beating a woman slave against the terms of the Code Noir, remitted on appeal.Footnote ⁸⁶

A systemic “reinterpretation” of a crucial law was to follow. During the summer of 1833, the Slave Emancipation Act was passed in both houses of Parliament declaring that all slaves were free in all British colonies; they were no longer their owners' property.Footnote ⁸⁷ Following the precedent established after the American Revolution, Parliament voted to award £20 million in government bonds to the slave owners as compensation. Jeremie, a senior British official complained at the time that to award compensation to Mauritian slave owners was to legitimize the position of those who had imported slaves unlawfully.Footnote ⁸⁸ Since many of the slaves working in Mauritius had indeed been imported illegally, it seems possible that the Mauritius Commercial Bank, currently a highly profitable company that was founded on the basis of compensation funds, may be open to cases of unlawful enrichment as discussed above.

Cook's formulation that American slave managers could literally claim that their people were their greatest asset also applied in Mauritius and, even after emancipation, many of them therefore sought to retain labour to meet growing demand for sugar.Footnote ⁸⁹ Slave owners were concerned that, if ex-slaves were to be employed and given wages, there was a possibility of their being unwilling to work after being paid.Footnote ⁹⁰ Moreover, the slave owners needed to buy time because they were, behind closed doors, looking for a new type of labour as they had reservations about employing ex-slaves as free labour. In 1834, Parliament decided, partly as a result, that liberation would be conducted in two stages. In the first stage, slaves would become “apprentices” for six years; in the second, they would be free. Yet slaves had expected full freedom and the decision created uproar in the colonial world; petitions were sent to Parliament and demonstrations and strikes occurred in the West Indies. Consequently, the period was reduced to four years.Footnote ⁹¹

Slavery was therefore officially abolished in Mauritius on 1 February 1835 but ex-slaves were not actually given their full freedom until 31 March 1839.Footnote ⁹² Indian bonded labour was subsequently imported as a substitute.Footnote ⁹³

“Apprenticeship” was enacted by the British Parliament and was therefore lawful. However, the way that it was implemented appears not to have been. The ex-slave owners simply carried on as before despite apprentices' raised expectations. As Meyer and Scott point out in their affirmation of long-standing insights from Marx and Weber, formal changes in regulatory regimes are generally at odds with inherited norms, leading to conflicting expectations on the part of actors.Footnote ⁹⁴ As Tinker pointed out, after the British annexation, the Franco-Mauritians “continued to dwell in the atmosphere of pre-revolutionary France”.Footnote ⁹⁵ “Apprentices” were in fact effectively confined to their quarters on plantations; their masters prevented them from leaving by using guards. They also bought and sold them as before.Footnote ⁹⁶ To a limited extent, this was implicitly condoned by the government since each estate was legally required to have two guards, but owners both benefitted and offended by treating apprentices as though they were still slaves bound to their masters.Footnote ⁹⁷ The question is whether this may have constituted false imprisonment under English law, since in effect slaves were not free to leave their plantation quarters, the camps des noirs [black camps].

False imprisonment is a tort, defined as the infliction of bodily restraint not expressly or impliedly authorized by law.Footnote ⁹⁸ The definition of imprisonment was established at English law in 1520 by Termes de la Ley: “restraint of a man's liberty whether it be in the open field, or in the stocks or cage in the street, or in a man's own house, as well as in the common gaol. And in all these places the party so restrained is said to be a prisoner so long as he has not his liberty freely to go at all times to all places wither he will”.Footnote ⁹⁹

The case of Grainger v Hill in 1838, ie before the “apprentices” were given their full freedom, held that false imprisonment is an intentional deprivation of a person's freedom of movement from a particular place for any time, however short, unless expressly authorized by law.Footnote ¹⁰⁰ In this case, the court held that it was not a necessary condition that the claimant was aware of the false imprisonment.

Prima facie, the conditions for false imprisonment as they existed at the time were met by the apprentices' position. They were forced to remain on the plantations. Restraint was enforced by armed guards; escape through marooning was (as ever) a possibility but guards had to be evaded and serious risks run while punishment was inevitable.

Potential defendants include five sugar estates currently operating in Mauritius which produced sugar when the island was under French and British dominion. The slaves' living quarters are still visibly in place. Many earlier companies have changed their names but the successor companies may be traced and a number of them have also operated in partnership with these five estates. These companies may be open to cases for unlawful enrichment through false imprisonment.