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CHAPTER 1
The Migration of "Free" Labor
Contracting Freedom
The abolition of slavery has rendered the British colonies the scene of an experiment, whether the staple products of tropical countries can be raised as effectually and as advantageously by the labour of freemen, as by that of slaves. To bring that momentous question to a fair trial, it is requisite that no unnecessary discouragement should be given to the introduction of free labourers into our colonies. So far as it may be inevitable to obstruct such immigration by taking effective securities that the immigrants shall be, in the fullest sense of the term, free agents, — that obstruction may be justified, but no further.
— LORD STANLEY, Secretary of State for the Colonies, to Sir Lionel Smith, Governor of Mauritius, January 22, 1842
The abolition of slavery had not merely "rendered the British [plantation] colonies the scene of an experiment" but, in conjunction with the expansion of colonialism and the widespread deployment of a specifically liberal – capitalist discourse on freedom, had rendered the entire world the scene of that experiment. The hypothesis that the experiment set out to prove was somewhat more ambitious than the limited one Lord Stanley, Secretary of State for the Colonies, intimates in his dispatch: that free labor could be as effective and advantageous to the capitalist as slave labor. On a larger scale, the experiment set out to establish that free labor, or social relations characterized by the commodification of labor power, was the manifest and true destiny of humankind; that, indeed, the "universalization of free labour [was] the raison d'être of history." Although the installation of free labor was the initial aim of the experiment, over the course of the nineteenth century it came also to constitute its axiomatic premise. In other words, the precepts of political economy were advanced as the "natural condition of humanity" even as producing and instituting labor relations that adhered to this so-called natural state of freedom became central to the civilizing mission of colonialism itself. In part, then, what was at stake in the success of the experiment of transporting Indian indentured labor to replace slave labor was the very future of liberalism. This future, however, was not one where such historical events simply filled out a shell whose outlines were already drawn; rather, the abolition of slavery and the subsequent system of Indian indentured migration were elements that would crucially shape the future of liberalism and newly emergent understandings of freedom. In particular, as this chapter argues, these historical events would have a lasting impact on the contours of nineteenth-century contract law and on normative definitions of state sovereignty in relation to migration.
Legal historians and theorists have noted that the nineteenth century saw an ascendance of the notion of consent, or "will," to contract law. However, this historical shift has not been related to British slavery abolition, perhaps the most significant legal transformation of labor relations, and hence the terms of contract, in the nineteenth century. James Gordley, for instance, in considering the causes for such a transformation — particularly the eclipse of the concept of "equality in exchange" as well as the philosophical and legal incoherence surrounding notions of "duress," "fraud," and "mistake" to the validity of contracts — catalogues a range of possible reasons: the growth of large-scale markets, the rise of industrialization, and changes in the ideology of nineteenth-century liberalism. He suggests that the centrality of consent to nineteenth-century contract law, championed by the "will theorists," cannot be attributed to any of these factors. By his account, jurists' propensity to accept will theories is best understood as indicative of the decline of an Aristotelian philosophical tradition and an "intellectual crisis within their own discipline." Missing, however, from Gordley's catalogue of possible causes for changes in contract law is the historical event of abolition, as related either to institutional changes in how contract worked or to political, social, and ideological changes in how freedom was conceived.
In another register, historians working on the post-abolition transformations in the legal terms of labor have largely tended to assume that emergent contractual relations of ex-slaves, apprentices, and indentured labor simply duplicated — if often in terms of deviation — extant contractual arrangements that defined free labor. In fact, as Douglas Hay and Paul Craven point out, "much recent work on indentured and other labor in the post-slavery empire remains relatively incurious about the details of the law and its enforcement." In other words, historians often evaluate the contracts made by ex-slaves, apprentices, or indentured labor with reference to a fixed or stable definition of a free labor contract. Thus, where legal theorists have overlooked how abolition might have wrought changes in nineteenth-century contract law, historians working on the changes wrought by abolition have tended to overlook the transformations in what constituted a free labor contract. A central task of this chapter is to read the debates on and definitions of contracts in the regulation of the post-abolition practice of indentured Indian migration alongside the transformations in contract law, to bring into view a different account of the centrality of consent, or will, to nineteenth-century contract law.
A second, closely affiliated, task is to expand discussions on state control of migration, particularly in relation to understandings of state sovereignty. As noted in the introduction, while historians of migration have provided detailed descriptions of the manifold migration controls undertaken by a variety of states, they have not given sufficient consideration to how such controls were profoundly intertwined with the historical development of, and transformations in, the modern state and inter-state relations. Simultaneously, theorists of the state have favored, with few exceptions, a diffusionist or mimetic model of the modern state. As we will see, a politico – historical consideration of the legal debates concerning slavery, abolition, and indenture make such positions increasingly difficult to sustain, and, instead, illuminate colonial genealogies of the modern state.
"This Practice Has No Foundation in Any Existing Law": Colonial (Re)configurations of State Sovereignty
On August 1, 1834, following the British Slavery Abolition Act of 1833, Britain adopted a method for the gradual abolition of slavery in its colonies. The method of gradual abolition bound the recently emancipated slaves to a plantation under a system of apprenticeship for a period of six years, later reduced to four. Thus, the year 1838 marks the formal end of slavery in the British plantation economies. Well before apprenticeship had begun, plantation owners in Mauritius and the Caribbean were already anxious about the feasibility of emancipated slaves providing a continued source of labor on the plantations and, more significantly, were worried about how to expand their enterprises without a concomitant increase in the supply of labor. Hence, in addition to an increase in the illicit slave trade (of both Africans and Indians), the planters in Mauritius had arranged for indentured labor from India. Between 1834 and 1839, that is, the period of apprenticeship, more than 20,000 indentured Indians arrived in Mauritius. In fact, on August 1, 1834, the date Emancipation came into effect, the ship Sarah sailed into the harbor at Mauritius carrying thirty-nine indentured Indian migrants.
Mauritius not only was the first colony to initiate the migration of Indian labor but also came to occupy a preeminent status with regard to what was the "great experiment" of the nineteenth century — namely, to ascertain the relative degrees of cost, productivity, and profit of slave versus free labor. It therefore served as a critical site for the success or failure of this experiment, even as practices of indentured migration to Mauritius served as a model to be replicated elsewhere. For instance, in 1836, learning of the system used by the planters in Mauritius, John Gladstone (father of William Gladstone, four-time liberal Prime Minister of Britain) initiated correspondence to have indentured Indian labor shipped to work on his plantations in British Guiana (Guyana). It took Gladstone almost two years to complete the arrangements with the governments of India and British Guiana, the Colonial Office in London, and the shipping agency of Gillanders, Arbuthnot & Co., who was charged with the task of actually recruiting the migrants. The Hesperus and Whitby eventually sailed from Calcutta (Kolkata) in January 1838 with 437 indentured Indians on board. Only 419 arrived in British Guiana; eighteen had died on the voyage, two of whom had reportedly "[fallen] overboard in a violent gale" and drowned. These Indians came to be known as the "Gladstone Coolies." Slave uprisings on Gladstone's plantations in British Guiana in 1823 had made him notorious with abolitionists in England. His scheme of transporting Indian labor only added to this notoriety.
Coming as it did on the heels of slavery, the migration of Indian indentured labor was, from the start, plagued by opposition, doubt, and anxiety regarding the "freedom" of the migrants. Hence, as early as 1835, when the migration to Mauritius was gaining momentum, the Court of Directors of the East India Company (in charge, at the time, of British administration in India), in an effort to ensure freedom, stipulated that "intending emigrants [were] to appear before a magistrate and satisfy him of their freedom of choice and knowledge of the circumstances of the case." Despite this state oversight of a private contractual arrangement, the anxiety over the freedom of the migrants continued. Thus the government, though recognizing "the inexpediency of throwing impediments in the way of free emigration of the native Indian labourer," had asked the Law Commission in India to give the matter their "serious consideration" and determine "whether any further security can be afforded to these people against ill-treatment than is provided for by the existing orders." The Law Commission felt that extensive legislation and regulation were unwise and unnecessary: "no legislation is advisable, except ... such as have already been made, to prevent undue advantage being taken of the simplicity and ignorance of [these] persons. ... If sufficient care be taken to ascertain that every essential point is provided for in the engagements [i.e., the contracts] ... it does not appear to the Commissioners that there is anything more which the Government of this country can reasonably be expected to do for the protection of [this] class of persons." It was along the lines of such minimalist state involvement that the first piece of legislation regulating the movement of indentured Indian labor was ratified by Act V of 1837. In conjunction with the regulations and the Act in India, in 1835 the government of Mauritius passed two ordinances that, in addition to stipulating the precise terms of labor, prohibited the entry of laborers into Mauritius, "except under the authorization of his Excellency the Governor."
Given that over the course of the nineteenth century the regulation of Indian indentured migration would blossom into a massive, micro-managed, state-controlled enterprise, it is significant that this minimalist state oversight of private contracts constituted a radical departure from prevailing practice. Indeed, in asking for the recommendations of the Law Commission in India, the imperial government had stated: "It is to be observed, that this practice [of regulating migration] has no foundation in any existing law, but was prescribed by [an] order of Government on the first case coming under its notice." Not only was the state aware of the novelty of legal regulation, but the initial regulations, particularly in Mauritius, occurred amid challenges to the state's authority to monitor "free" migration. For instance, Hollier Griffiths, a planter in Mauritius, writing to G. F. Dick, the Colonial Secretary of Mauritius, found the nature of the Mauritius ordinances to be unprecedented: "[N]o example does exist, to my knowledge, in any civilized country, in modern times at least, of the creation by legislative acts of obstacles to the augmentation of the labour and industry of a community." He objected to the ordinances on the grounds that they would "discourage the introduction into this colony [i.e., Mauritius] of free workmen or labourers," when what was needed was to "promote the establishment of free labourers in this island by means of premiums." But, more importantly, he found it his "duty to question the competency of the authority by which the enactments ... have been made." Griffiths pointed out that while the sovereign had the authority, in exceptional cases, to prohibit the departure of a British subject from British territory, or even to recall him, the royal prerogative "[did] not extend so far as to prohibit the entrance into his dominions of any of his subjects." Moreover, wrote Griffiths, "this power vested in his Majesty has been considered so contrary to the liberty of the subject, that very few instances are on record of its ever having been exercised." Griffiths worried that if the government of Mauritius "was legally entitled thus to infringe on the rights of his Majesty's subjects, natives of India, it might equally claim the same authority in respect to the subjects of his Majesty, natives of Great Britain, ... [who would] thus [be] deprived of a right appertaining to [them] by birth." By passing the 1835 ordinances restricting the entry of immigrants, the local Council of Mauritius had, in effect, superseded even the authority vested in the sovereign.
The relation between mobility, freedom, and the state has received relatively little elaboration in classical liberal theory. Significantly, one of the historical occasions for the limited discussion that exists concerns European migration to the Americas and the accompanying seizure of territories. Such negligible attention might today appear curious; however, it is less curious given the widespread nineteenth-century view that for the state or sovereign authority to hinder the free movement of persons traveling for "peaceful and lawful reasons" was an exceptional, and largely indefensible, exercise of sovereign power. In this regard, the tenets of natural law were incorporated into those of positive law. Thus, for instance, when, in 1792, England exercised exceptional powers to monitor the entry of Jacobins following the French Revolution, it was not without dissent, with contemporaries even denouncing the accompanying Act of Parliament as "equivalent to the suspension of ... Habeas Corpus." The basis for this exceptional Act was directly related to the political threat — almost akin to the threat of an entering army — that the Jacobins were thought to pose to sovereignty. Hollier Griffiths in Mauritius was therefore entirely correct in asserting that there did not exist, at the time, legislative acts on migration that functioned as "obstacles to the augmentation of the labour and industry of a community."
Further, key aspects of liberal theory itself become incoherent if one suspends the premise of free movement. For instance, Locke's notion of "tacit consent" includes an implicit presumption of unconstrained mobility. Locke introduces this important idea in order to circumvent the problem of the lack of express consent in his version of a consensual political society. For him, "a child is born a subject of no country or government ... he is a freeman, at liberty what government he will put himself under, what body politic he will unite himself to," though, simultaneously, an adult who enjoys the benefits and protection of a particular government, "does thereby give his tacit consent" to it. But, continues Locke, "[when an] owner, who has given nothing but such tacit consent to the government, will, by donation, sale or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth, or to agree with others to begin a new one in vacuis locis, in any part of the world they can find free and unpossessed [i.e., the New World]."
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Excerpted from "Indian Migration and Empire"
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