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Colonial Cases

Mauritius Slaves, 1836

[slavery compensation]


Mauritius Slaves

Judicial Committee of the Privy Council
28 June 1836
Source: The Times, 29 June, 1836

PRIVY COUNCIL, Thursday, June 28.
  This case, which is one of very great importance, and has excited the deepest interest among the owners of colonial property, was opened by Mr. Pemberton, on behalf of some of the slave proprietors of the Mauritius, on Thursday last. The arguments were resumed today before the Judicial Committee of the Privy Council, when
  Sir W. Follett succeeded Mr, Pemberton on the same side. The learned gentleman proceeded to say that the case rested upon the construction of the two Orders in Council of the years 1814 and 1826, and of the Slavery Emancipation Act of 1833. That act provided that the slaves in all British Colonies who should have been duly registered should, after a limited period of apprenticeship, become entitled to absolute freedom. The two Orders in Council were issued for the purpose of establishing in the Isle of France and its dependencies a registry of the slaves of those islands. By the first Order in Council the returns were to be furnished by the proprietors to the register annually, and by the second biennially.  The second Order also more effectually provided for an accurate statement of the alterations which might have taken place since the preceding returns in the number of any proprietor's slaves, and for registration of their births and deaths, &c. These returns had been regularly made up to 1830.  In 1833 the Slave Emancipation Act passed, and in 1832 and 1834 no returns had been made, and no proclamations, ordering them to be made, had been issued by the Governor of the colony of the Mauritius.
  The question then was, whether the absence of a registry in 1832, or the neglect of the Governor to issue the above order in 1834, were to have the effect of setting all the slaves free from the provisions of the Slavery Emancipation Act as to apprenticeships.
  Having made that preliminary remark, the learned counsel observed, that the question was purely one of law. By the 45th section of the act of 3rd and 4th William IV., cap. 73, it evidently was the intention of the Legislature to make certain provisions to secure gradually and peacefully a change of society in all the colonies, and he had yet been unable to discover any reason why these provisions were not as applicable to the Mauritius as to any other colony. It was admitted that up to the year 183 the returns required to be made by the proprietors were correctly made, and no blame, therefore, could attach to them. But the registrar had taken a wrong view, he apprehended, when, ceasing as he did to make any registry at all at that period, and intending to consult His Majesty's Government as to the propriety of so doing, he had neglected to communicate any such intention to the slave proprietors.
Ought, then, the absence of a registry in 1832 to be taken advantage of to the injury of the proprietors for a default for which they were not liable? And again, because the Governor in 1832 abstained from issuing a proclamation, were the proprietors to be the sufferers on account of his dereliction of duty? But was the large body of slaves to be affected by these circumstance, who were duly registered in the years 1826, 1828, and 1830? He maintained that they were not, as, to all intents and purposes, they were duly registered. There was an act which established a register in this country also, which was to be an exact copy of that kept in each colony, and no slave should be considered as duly registered unless duly returned to the registrar. This, the learned gentleman contended, applied to the proprietors, and not to the Government officer, and showed that the proprietors could only suffer by their own neglect, and not by the neglect of the government officer. He contended moreover that the return itself made by the proprietor was bona fide a register. The Order in Council of 1826 was only intended to continue the register.  The registrar's duty was to give notice to the slave owners in case any mistake had taken place in the returns, in order that it might be corrected; and surely, after everything had been rightly done on the part of the owners, it was an absurd construction to put upon an act of Parliament, to say that there was anything in the Slavery Emancipation Act applicable to other colonies which was not equally so to the Mauritius.
  Was a person having property in any given number of slaves, who had been duly registered in 1830, to lose that property, because there had been no registration in 1832? Such a conclusion would be monstrous in the extreme. To argue from analogy, all the allusions in the Order in Council to the forfeiture of slaves bore reference to the owners not making returns, and not to the neglect of the registrar. The words "duly registered" formed the true principle according to which the provisions of the Emancipation Act ought to be construed, and if it were so construed, it never could with any reason or justice be contended, that property slaves previously duly registered was to be lost for want of registry in 1832, or the failure of a proclamation in 1834. The question related to that great mass of slaves who were found to be duly registered in 1826, 1828, and 1830, and he maintained that the intention of the Legislature would be frustrated, which provided by the Slavery Emancipation Act for the gradual and better fitness of the slaves for freedom and the altered state of colonial society, if their Lordships should come to the decision that the great body of slaves should become at once entitled to absolute and unqualified freedom.
  The Solicitor-General appeared for the Crown, and said that he was placed in rather an anomalous situation, as he appeared on the part of a Government anxious to know if an act they had passed was capable of such construction as had been put upon it or not. The best way to get at the real merit of the question was, they had considered, to have it argued before the Privy Council, the only tribunal which was competent to decide the point their Lordships were now sitting by virtue of an act which attached a Judicial Committee to the Privy Council and certainly no case ever came before them of more weighty importance or more worthy of their calm consideration.  His learned friends had rested their case upon two propositions - first, that whatever names of slaves should be found on the original register were good, as to due registration, to the end of time; and, secondly, that the owners of slaves, having done every thing required of them with respect to the returns to be sent in, could not suffer the loss of the services of those slaves by the absence of registry in one year, or the neglect of a Government officer in another.
  The learned gentleman then referred at considerable length to many passages in the Orders in Council dwelt on by the learned counsel on the opposite side, as well as to the provisions of the Slavery Emancipation Act, and contended that a person duly registered as a slave in the original register was not legally to be considered so, unless he was also registered in every subsequent return. This, he maintained, was proved by the provisions of the Order in Council which called on the proprietors to say whether there was any alteration or not as to numbers, &c., of their slaves at the period of each successive return. The registration was established to obtain from time to time correct accounts of those who were in a servile condition, and to prevent illegal importation. Suppose, for instance, a case of the death of a slave, if such circumstances were not duly registered, his place might be supplied by another imported from the African coast. The periodical returns were not merely intended to prove the owners' title to the slaves, but also who the slaves were.
  The learned gentleman also maintained that the country marks were essential to the knowledge of a slave's identity, and that the registry ought to contain any changes in them, as such might be made. A slave might lose a limb, and, unless such circumstance were duly registered, his identity might not possibly be sworn to.  The learned gentleman then objected to the case of "The King v. the Justices of Leicester and others," which had been cited by his learned friend Mr. Pemberton, on a former occasion, being anomalous to the present, and mentioned others relating to enrolments according to the terms of the Annuity Act, and registries under the Ship Registry Act, which he maintained were more in unison with it. In those cases he maintained the question was not whose fault it was there had been no registry, but whether there had or had not been a due registration.
  In conclusion the learned counsel stated, that whatever should be the result of their Lordships' decision he was convinced that the question whether the slaves who were duly registered on the 1st of August, 1834, should not be entitled to their immediate freedom, could not be better decided than it would be by the Judicial Committee of the Privy Council.
  Dr. Lushington followed on the same side, but as the learned gentleman was interrupted in the earlier part of his argument by the Council being unable to sit any longer today, we shall reserve his arguments until their completion on Thursday next, the 30th inst., until which day the further hearing of this interesting case is postponed.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School