»There Is in the Great Big Law Too Much Bad Little Law«: The Slavery Abolition Act and Labour Laws in the Post-Emancipation British West Indies^*

1. Prologue

This article adopts a long-term and comparative perspective to examine the British West Indies in the wake of the abolition of enslavement as a unique testing ground for the implementation of legal measures aimed, on the one hand, at supporting the establishment and preservation of a free labour market and, on the other, at governing and restricting the dynamics of that market. In fact, lest the formerly enslaved consider themselves emancipated not only from the shackles of slavery but also from the imposition of work, metropolitan and colonial administrators looked for legal »bonds« which, similar to the slave codes of the times of slavery, would force the freedmen to engage in labour.¹ Even the members of the Anti-Slavery Society, in an advertisement published in 1833, stressed »the necessity of substituting, for the present authority of the master, a system of legal constraint, of equal, if not superior vigour«. The arbitrariness of the planters’ personal power, they argued, should be replaced by the lawful coercion of an impersonal legal order: »The magistrate, and not the irresponsible owner, must be the judge of what shall constitute offence. We would supersede the private cart-whip, and replace it with the magisterial tread-mill […]. In a word, we would abolish slavery, but we would establish law.«² As Nigel Bolland has argued, the process of emancipation »changed the legal framework of social relations« in the British Caribbean without subverting them.³ This essay provides a comprehensive investigation of this changing framework, which formally restructured the West Indian labour regime while ensuring the persistence of a varied set of »unfreedoms« predicated on racial difference.⁴

The historiography on the process of emancipation in the British West Indies is extensive, making the painful transition of the formerly enslaved from bondage to freedom a meticulously researched topic.⁵ By building on previous work, for example, by Mary Turner and Diana Paton,⁶ this article aims to contribute to this literature by examining the interconnectedness of the legislative measures regulating labour relations in Britain and the post-abolition Caribbean from a longue durée and transnational perspective. By focusing on the legal dimension of emancipation in the West Indies and considering the colonies as part of »a single analytic field« with their metropole,⁷ the intention here is not to downplay Caribbean specificities (such as the process of racialisation which accompanied abolition)⁸ nor to equate slavery and wage labour (an argument often historically advanced for anti-abolitionist purposes and based on racist premises).⁹ Instead, it is proposed that within the imperial framework, different labour systems were frequently underpinned by similar social | concerns, which pushed policy makers to address new problems by looking for previously tested legal solutions within an ancient, established repertoire.¹⁰

This article reconstructs the legal history of emancipation in the West Indies through the views of its different actors: the exponents of the British political intelligentsia, who, from the Houses of Parliament and the Colonial Office, were committed to introducing abolition; the white planters of the Caribbean and their local legislatures, who instead attempted to postpone and thwart its introduction; and the enslaved of African origin, at one and the same time the ›objects‹ of emancipation and its protagonists, whose voices are often silenced in the sources and therefore more difficult to retrieve. Despite their conflicting interests regarding the existence of a juridical status of enslavement in the Caribbean, the metropolitan and colonial elites shared an underlying preoccupation with labour shortage as well as a belief in the supposed necessity to discipline the formerly enslaved into a poor, hard-working and compliant proletariat – a necessity which was felt in Britain, too. From the perspective of the British Parliament and the Colonial Office, interfering in favour of abolition in the colonies and encouraging the approval of stringent measures in matters of employment (both at home and abroad) was not contradictory as, for it to work as they wished, the ›progressive‹ measure of slavery emancipation had to be accompanied by the introduction of ›conservative‹ norms imposing the coercion to wage labour. Therefore, emancipation from enslavement should not be considered as extending the boundaries of modern liberal society, made up of free and equal individuals, to include the previously excluded manumitted slaves. Rather, what Thomas Holt has called the »problem of freedom« of the post-emancipation Caribbean highlights the hierarchies and inequalities which were constitutive features of that society, and whose existence and continuity were upheld by its key ordering instrument – the law.¹¹

2. Part One (1349–1823): Enslaved and Exploited

In his History of Jamaica (1774), the Anglo-Jamaican planter and historian Edward Long identified a striking similarity between West Indian slave codes and the regulations concerning serfdom, or villeinage, in medieval England. This legislative affinity led him to conjecture about a process of transatlantic legal transfer:

The Negroe code of this island appears originally to have copied from the model in use at Barbadoes; and the legislature of this latter island […] resorted to the English villeinage laws, from whence they undoubtedly transfused all that severity which characterizes them, and shews the abject slavery which the common people of England formerly laboured under. In the 34th of Edward III, for example, [if] a labourer, or slave, fle[d] from his master’s service […] the chief officer of the place was required to deliver him up to his master […]. But the most remarkable badge of servility was imposed, in the 1st of Edward VI, by the statute against vagabonds; which […] inflicts several violent punishments […] to force them to work for their owner […]. The first emigrants to the West-Indies […] carried with them some prejudices in favour of the villeinage system, so far as it might seem to coincide with the government of Negroe-labourers.¹²

In his account, not only was Long ignoring the fact that, since the mid-17th century and alongside slave codes, the British West Indies had regulations specifically aimed at governing the service of the convicted and indentured white labourers transported from the metropole.¹³ In comparing villeinage, 14th- and 16th-century English statutes and slave codes, he was also juxtaposing different systems. Villeinage was a form of medieval serfdom which tied villeins to the manor and bound them to work for their feudal lord.¹⁴ The extent to which |the status of villeins resembled that of slaves has been widely debated.¹⁵ In contrast to the Caribbean enslaved, who had no right recognised by law and were equated to chattel (though a peculiar kind of chattel, bearing criminal liability), English villeins, as Dana Rabin and others have argued, did not properly belong to their lords.¹⁶ This crucial difference was acknowledged by Long himself in his Candid Reflections upon the Judgement Lately Awarded by the Court of King’s Bench, in Westminster-Hall, on What Is Commonly Called the Negroe-Cause (1772), a harsh commentary on Lord Mansfield’s judgement in the case Somerset v. Stewart (1772), relating to the illegal re-enslavement of an individual who had managed to escape slavery on English soil. Long noted, in fact, that whereas »the law takes no notice of a Negroe«, medieval villeins were theoretically entitled to the writ of Habeas Corpus, protected against ill usage at least to some extent, and recognised as the King’s subjects. At the same time, however, they were, by custom, »unfree«: they lacked autonomy of movement (if they left the manor without their lord’s permission, they could be forcibly reclaimed) and, in the event that they refused to »do service to [their] master«, they could be legally imprisoned.¹⁷ Long remarked on the peculiar legal status of villeins: the right to personal inviolability to which they were entitled in principle was in practice contradicted by the coercive social regime under which they lived and laboured.¹⁸ In other words, as Brian Simpson observes, »vis-à-vis their lord« villeins were »unfree«, even though »vis-à-vis the rest of the world they were accorded the rights of free men«.¹⁹

However, Long was mistaken in presenting the 14th- and 16th-century statutes enforcing service and criminalising vagrancy as a development of villeinage. The first English labour legislation was actually passed in the late 1340s as a result of the decline of manorial serfdom. The social disorder caused by the Black Death epidemic, which de facto delivered most villeins from their bondage, prompted the introduction of statutory labour laws.²⁰ The Ordinance of Labourers (1349) and the Statute of Labourers (1351) of Edward III – confirmed and reinforced by several successive enactments, and systematised by the Statute of Artificers (1562) of Elizabeth I – aimed to ensure both a guaranteed supply of workers and their reliable service in times of labour shortage. These statutes jointly implemented an assortment of norms: they made the departure of labourers before fulfilment of their performance agreement punishable by imprisonment; imposed the formal duty to work on all those who lacked visible, independent means of subsistence; required the hiring of certain categories of workers on a yearly basis; criminalised vagrancy and the collective bargaining of labourers; and mandated wage rates. The purpose of this legislation was to compel labourers to be socially and economically dependent on their masters; its administration was given to Justices of the Peace or other inferior magistrates.²¹ These late medieval and early modern statutes were direct antecedents of the »Master and Servant« legislation approved from the mid-18th century onwards. According to Douglas Hay, Simon Deakin and Frank Wilkinson, Master and Servant laws marked a statutory innovation of the 1562 Statute of Artificers in the wake of nascent industrialisation. In 1747, the Regulation of Servants and Apprentices Act, or Master and Servant Act, strengthened the power of justices to force labourers to fulfil contracts.²² Subsequently, several consecutive measures established new crimes and exacerbated punishment for servants who quit before the end of the agreed term or refused to enter into employment. Absenteeism, misconduct and neglect of duty were penalised and punished by whipping, imprisonment, abatement of wages or forced labour. As argued by several scholars,| harsher discipline was thought necessary to regulate the working classes’ performance of labour in order to ensure the success of the increasingly mechanised English manufacturing system.²³ The core feature of 14th-century statutes – the criminalisation of employment breaches on the part of the labourers – was therefore not only preserved but even enhanced by 18th-century Master and Servant laws.

This long-term continuity in English labour legislation did not go unnoticed by Edward Long. Quoting a passage from the Considerations of Criminal Law by Henry Dagge (1772), Long criticised the »legislative barbarity« which still characterised the legal system »at home« as a result of Master and Servant provisions:

The regulation, discipline, and punishment […] of vagabonds, of labourers, of apprentices, of soldiers, seamen, [and] the workers in coal and saltmines […] favoured much of the antient coercions under which they had lain, and indeed to the present hour have been little more relaxed […]. The penal laws in England were always sanguinary, and still retain this savage complexion; which has given occasion to an ingenious author to assert, that ›they seem rather calculated to keep slaves in awe, than to govern freemen‹.²⁴

Long’s remark – ironically coming from a slave-owner – that metropolitan Master and Servant laws were better suited to governing enslaved rather than free labourers highlights what Alessandro Stanziani has referred to as »the blurred boundaries between freedom and unfreedom« which characterised the status of dependent wage workers in England and Britain from the Middle Ages well into the modern period.²⁵ In fact, there was an invisible thread that, despite historical transformations, linked medieval villeins to early modern servants to early industrial labourers: the coexistence of formal liberty with personal subordination to their masters. Through 14th-century statutes and 18th-century enactments, the peculiar, customary legal status of manorial serfs was extended to ›free‹ labourers, producing a distinctive mixture of private and public law by equating civil breaches of agreement with criminal offences within a harsh disciplinary regime.²⁶ This combination of civil violations and criminal consequences in labour legislation aimed to respond to the practical problem of how to hold a poor workforce to their agreements to serve other than through fines that, being propertyless, they could not pay. A solution was found in providing masters with a right over the persons of the labourers they employed.²⁷ This principle was articulated by another Jamaican planter in 1831: the only »security the man who has no property can give« the proprietor against breach of contract was a »claim of man over man«, which de facto reduced the former to a »man in debt« or, in other words, to »a slave«.²⁸

Therefore, while inaccurate in terms of legal development, Edward Long’s juxtaposition of villeinage, late medieval statutes and Master and Servant laws was far from arbitrary. The condition of villeins as simultaneously free subjects of the Crown and unfree dependents of their lords was perpetuated by the combination of »public« freedom and »private« unfreedom of English and British labourers over the centuries, at the same time as »real slavery« was being established in overseas plantations.²⁹ As has been argued, the late 18th and early 19th centuries witnessed an increase in criminal sanctions in the administration of labour laws. In the face of growing social tensions due to the ideological radicalisation and industrial unrest of the working classes, British high courts became more frequently involved in matters of‍‍‍ employment; consequently, discontented and uncompliant workers were subject to a greater number of prosecutions, summary sentences and corporal punishment. This process was aided by the‍‍‍ establishment of new prisons and houses of correction.³⁰ As will be discussed below, when enslavement was abolished in the British colonies in the 1830s, the legal measures which had for | centuries mandated the terms of wage labour in Britain offered a useful model after which to frame employment relations in the Caribbean.³¹ Edward Long speculated about a process of legal mirroring and borrowing between metropole and colonies in 1774, one year before what David Eltis has called the »first Emancipation Act« (the Colliers and Salters Act 1775) »set free the Colliers, Coal-bearers, and Salters« who lay »in a state of slavery« in Scotland as they had previously been sold along with the collieries they worked in.³² The legislative emulation of metropolitan norms would inspire imperial legislators in the years following the second, epochal act of emancipation: the Act for the Abolition of Slavery throughout the British Colonies (with the exception of the territories of the East India Company), also known as the Slavery Abolition Act of 1833.

3. Intermezzo (1823–1838): Manumitted and Apprenticed

Notably, the term »emancipation«, widely used among contemporary observers to refer to the abolition of slavery across the British Empire, does not occur once in the text of the 1833 Abolition Act. Instead, its drafters employed »manumission«, a notion drawn from Roman law and referring precisely to the practice of freeing one’s bondsmen.³³ Manumissio was a unilateral legal act of the owner, carried out on an individual basis, just like the emancipatio, the enfranchisement of sons from their filial subordination to patria potestas.³⁴ However, according to Reinhart Koselleck and Karl Martin Graß, in the wake of the French Revolution, and especially from the 1830s onwards, Emanzipation became the watchword of political struggles and movements in Europe. Concurrently, it progressively lost its ancient meaning as an individual, legal act and acquired the new, modern connotation of a social and political process, the upheaval of the people aimed at collectively gaining freedom for themselves rather than having it dispensed from above.³⁵

The Slavery Abolition Act was passed by the British Parliament during the years which, according to Koselleck and Graß, saw the transition of »emancipation« from act to process. Nonetheless, the abolition of enslavement in the British Empire unfolded as both. On the one hand, it was an act, a legislative enactment granting freedom from above to a mass of workers significantly defined as newly »manumitted«, as if the general freeing of thousands of people in the wake of slavery abolition could be equated with a large-scale implementation of the practice of releasing an individual from bondage while slavery was still lawful.³⁶ On the other hand, it was a process, triggered by the increasingly occurring revolts of the enslaved across Caribbean plantations, promoted by the British abolitionist movement for decades, and finally unfolding via a set of social measures, in addition to a proliferation of laws passed before and after the 1833 Act and within and outside the British Parliament.³⁷ In fact, from a legal perspective, turning over 600 000 enslaved people into free labourers necessitated a process of »restructuring« of Caribbean labour legislation within which the Abolition Act represented only one, albeit the most ground-breaking, enactment.³⁸

The »ameliorative« attempts to reform the conditions of the enslaved population (and thereby increase its numbers, counteracting the feared consequence of the imminent abolition of the slave trade, namely, a lack of available workforce) commenced in the second half of the 18th century through acts passed by Caribbean legislatures.³⁹ However, from 1823 onwards – the same year that Parliament passed a new Master and Servant Act which reinforced the coercive character of labour legislation in Britain⁴⁰ – the imperial government took the unprecedented step of interfering in colonial employment laws to lay the legal foundation of, and gradually introduce, abolition. The »amelioration« of West Indian slave laws was directed by the permanent counsel to the Colonial Office and later Undersecretary for the Colonies, Sir James Stephen.⁴¹ In Crown Colonies such as Trinidad and Berbice, the progressive ›mitigation‹ |of the harsher features of slavery was introduced by two Orders in Council, of March 1824 and November 1831, respectively, which jointly curbed the personal power of planters by appointing »Protectors of Slaves« tasked with regulating flogging, imposing limitations to working hours and defining the mutual obligations between masters and slaves in contractual terms.⁴² Representative colonies such as Jamaica and Barbados received a circular despatch from the Colonial Office, outlining the measures that the planter-dominated local assemblies were expected to implement in order to revise the local labour regimes. In these colonies, however, the metropolitan ameliorative project clashed with the non-compliance of slave-owning elites.⁴³

To quell the planters’ opposition, not only did the 1833 imperial Act set an amount of 20 million pounds to be distributed to former slave-owners to compensate them for their newly lost property in human beings;⁴⁴ while abolishing the status of enslavement, the Act also created an intermediate period of »apprenticeship«, during which former slaves were de facto reduced to servitude. This form of post-emancipation labour was based on the metropolitan system of apprenticeship, which had regulated entry into trade in England since the early 15th century until its abolishment in 1814. Apprenticeships in Britain had lasted for seven years, during which time apprentices were required to live in their masters’ households and paid only in kind.⁴⁵ In the West Indies, apprenticeship – often criticised by apprenticed labourers and those who sympathised with them as an »ordeal« between slavery and freedom – was presented by the legislative architects of abolition as a period of social and moral probation to prepare the formerly enslaved for wage labour.⁴⁶ The system aimed at binding them to their respective plantations and »promot[ing] their industry«: both »praedial« (agricultural) and »non-praedial« (domestic) apprentices above six years old were obliged to work on their former masters’ estates for 45 hours per week in return for food, shelter and clothing, while wages could only be earned by performing extra labour.⁴⁷ Some limitations of corporal punishment were introduced (including exempting women from flogging), and apprentices were granted the right to seek legal redress.⁴⁸ In fact, a body of over one hundred stipendiary adjudicators, the »Special Magistrates«, was created in order to supervise relations between planters and apprentices, stripping the former of their personal power over the latter. The magistrates’ responsibilities included regularly visiting the estates, assigning constables to different colonial districts, convening courts to adjudicate complaints between the parties, administering fines and corporal punishments, and filing reports.⁴⁹ The end of praedial and non-praedial apprenticeships was initially scheduled for 1840 and 1838, respectively; eventually, the system ended for both categories of workers in 1838.

The Abolition Act contained some general guidelines, but the apprentices’ specific conditions of employment were left to colonial assemblies to decide. Therefore, direct metropolitan intervention in the details of colonial legislation, which had characterised the »amelioration« phase, was now avoided; in the words of Mary Turner, the Abolition Act was thus framed as an »employers’ charter«.⁵⁰ To receive the compensation budgeted for former slave-owners, colonial legislatures had to approve their own local Abolition Acts; this led to the enactment of measures with slightly modified terms designed to favour the interest of planters.⁵¹ Even the Special Magistrate for Barbados and St.Vincent, John Colthurst, observed that most colonial assemblies were treating the imperial Act as »waste paper« by passing local laws that de facto »defeat[ed]« its principles.⁵² The Acts of Jamaica, Barbados and St.Vincent, for instance, added a |clause enabling planters to »require and compel the immediate and continued service« of their apprentices in the event of unspecified »emergency«.⁵³ The vagueness and omissions of the imperial Act were also exploited by local legislatures. For example, the Slavery Abolition Act mandated a 45-hour work week but did not define how this working time was to be spread, apart from prescribing Sundays as days of rest.⁵⁴ Consequently, a dispute between apprentices and planters arose in Jamaica: whereas the former requested a nine-hour workday with half-days off on Fridays and Saturdays to farm their provision grounds (upon which they had largely subsisted during slavery, and which could be miles away from their plantations), the latter wanted to mandate eight-hour workdays in order to prevent apprentices from having time for themselves outside of and far from the plantations.⁵⁵

The system of apprenticeship prevented labourers from either buying or occupying vacant land,⁵⁶ obstructing their access to an independent livelihood. Their freedom of movement was also restricted, as they could move to another colony only with a passport (which could be issued solely with the permission of their former masters). Marronage, that is, fleeing from plantations and joining a community of runaways, remained a crime.⁵⁷ In some colonies, apprentices could even be sold and hired out, just like when they had been enslaved.⁵⁸ Though there were some local differences, across the West Indies apprenticeship was accompanied by the passing of vagrancy and pass laws, the creation of armed police forces and new prisons and houses of correction, and the introduction of novel forms of punishment.⁵⁹ The latter included the treadmill, which had first been implemented and tested in the penitentiary system of the metropole and combined repetitive labour with automatic flogging (to which women were also subject).⁶⁰ The 1833 Abolition Act stressed that:

Proper regulations should be framed and established for the maintenance of order and good discipline amongst the apprenticed labourers, and for ensuring the punctual discharge of the services due by them to their respective employers, and for the prevention and punishment of indolence, […] for the prevention or punishment of vagrancy, […] for the suppression and punishment of any riot or combined resistance […] and for preventing the escape of any such apprenticed labourers […] from the colonies to which they may respectively belong.⁶¹

As early as 1833–1834, Jamaica, the Bahamas, St.Kitts, and Antigua (whose legislature, in contrast to other colonial assemblies, proclaimed the abolition of enslavement in 1834 without introducing a transitionary period of apprenticeship)⁶² approved vagrancy laws which incorporated the traditionally broad and intentionally vague meaning of »vagabonds and other idle and disorderly persons« found in English legislation.⁶³ In fact, in 1824 the British Parliament had passed a new Vagrancy Act penalising the poor and homeless (by criminalising begging and rough sleeping) as well as all those deemed immoral or potentially threatening to social order and the public peace.⁶⁴ After 1834, in the West Indies, the non-white »vagrant« became the post-emancipation equivalent of the fugitive slave.⁶⁵ In addition to pieces of legislation preserved from the times of slavery (such as the law prohibiting apprentices from bearing arms),⁶⁶ novel solutions were also implemented. Labour bargaining (which had custom|arily existed between masters and slaves) was made illegal by criminalising as »combination« the act of three or more apprentices attempting to negotiate working conditions together.⁶⁷ The colonies were following in the metropole’s footsteps in this, too, as the Combinations of Workmen Act of 1825 had recently outlawed collective bargaining and prohibited strikes and trade unions in Britain.⁶⁸ In the Caribbean, some islands also witnessed the proliferation of new laws outlawing minor issues: in 1836, for example, free non-white women in St.Vincent were banned from retailing syrup and sugar, and from running leisure houses.⁶⁹ In a circular letter to the Special Magistrates, the Governor of Jamaica, Lord Sligo, stressed the importance of these regulations in post-emancipation societies: even if these laws restrained formal liberty, they appeared to him to be »intimately connected to the great measure«, namely, the Slavery Abolition Act. In fact, Sligo remarked, »a power of coercion« had been »provided by the Law« – that law – as an important tool in the government of freedmen.⁷⁰

To the formerly enslaved, apprenticeship proved a judicial as much as a legislative »ordeal«, as most Special Magistrates sympathised with planters.⁷¹ Consistent with the combination of civil violation and criminal offence that characterised metropolitan labour legislation, Special Magistrate for St.Vincent, John Anderson, equated breaches of contract by apprentices with »breaches of the peace«, deserving harsh punishment.⁷² The appalling treatment suffered by apprentices was detailed by James Williams, a Jamaican apprenticed labourer who was introduced to the British anti-apprenticeship activist Joseph Sturge in 1837, in his Narrative of Events since the First of August 1834. Sturge supplied Williams with the financial means to purchase his freedom, took him to Britain and promoted the publication of his Narrative.⁷³ According to Williams, »since the new law come in«, apprentices were experiencing »a great deal more punishment […] than they did when they was slaves«.⁷⁴ Indolence, neglect of duty, insubordination, petty theft, trespass and the departure from one’s assigned plantation were punished with imprisonment or detention in a house of correction, hard labour and public works, the treadmill or whipping (meted out by Special Magistrates only, at least officially), in addition to fines and degrading punishments such as hair shaving.⁷⁵ However, it was not only the planters who brought apprentices before Special Magistrates: John Colthurst recorded several complaints raised by apprentices against their employers for physical assault, ill-treatment, illegal whipping and withholding of allowances, in addition to more specific charges such as non-praedial apprentices being forced to work as praedials in plantation labour. Although fines were the most common penalty for masters and mistresses, in extremely severe cases Special Magistrates could order the full manumission of ill-treated apprentices.⁷⁶ In 1837, the publication of Williams’s account forced the new Jamaican Governor, Lionel Smith, to appoint a Commission of Inquiry to investigate the former apprentice’s allegations of the maladministration of justice in Jamaica. The evidence collected among apprentices, magistrates, owners and estate managers eventually confirmed Williams’s testimony.⁷⁷

Interestingly, the imperial Abolition Act and colonial enactments were known to apprentices, who appear to have been well aware of their legal rights and duties. As Diana Paton has demonstrated, because the law was interpreted and appealed to by parties on both sides of the class and colour line, apprenticeship became a contested field of legal negotiation between employers, the employed and the magistrates appointed to adjudicate between them.⁷⁸ For instance, the apprentices knew that according to the Abolition Act, children under six should not work on plantations; most |adhered to the letter of the law, categorically refusing to let their offspring perform agricultural labour.⁷⁹ Williams’ Narrative provides further evidence of the post-emancipation conflict around the meaning of the law: Williams himself, when beaten by his former master, warned him, »you can’t lick me down, sir, the law does not allow that, and I‍‍‍ will go complain to magistrate if you strike me«; he then informed the magistrate that »the old flogging is not well yet«.⁸⁰ Another Jamaican apprentice, forced to perform overnight work, complained that »the law« – of which, she stressed, she was as »well aware« as the Special Magistrate – was »not so«.⁸¹ The report of the evidence taken by the Commissioners of Inquiry appointed by Governor Smith included similar testimony: a non-white driver refused to whip an apprentice because »the law would not give me right if I switched any body«; conversely, an overseer did not let a labourer interrupt her work prior to the end of the prescribed workday as, he maintained, »there is no law for that«. However, even though the legal provisions were regularly appealed to by apprentices looking for protection and redress against arbitrary measures, they more frequently reinforced social and racial hierarchies, especially in islands where the proprietors of land and employers of labour still claimed they had »a law of [their] own«, in disregard and defiance of the imperial Act.⁸² Overworked on plantations and discriminated against by a judiciary biased in favour of planters, West Indian apprenticed workers saw a contradiction between the Act which had set them free and the labour laws that allowed for their exploitation and maltreatment on a daily basis. More precisely, as recently shown by Gad Heuman, it was the very same letter of the Abolition Act which, by mandating compulsory labour under the terms of the apprenticeship, appeared so distant from the apprentices’ own conception of freedom as to make them doubt that that provision had indeed been passed by the British Parliament: as inquired by a group of dismayed Jamaican apprenticed labourers, »is it the King’s law? […] Did not the Jamaica house make it?«.⁸³ As one apprentice told Special Magistrate Colthurst, »Major, we all of us thank King William for the great law, but there is in the big law too much bad little law.«⁸⁴

4. Part Two (1838–1866): Emancipated and Employed

In 1827, the then member of the Anti-Slavery Society and future lawmaker of British India, Thomas Babington Macaulay, commented with concern on the ongoing debates about the forthcoming abolition of enslavement throughout the Empire. In his opinion, those debates were shaping a »new«, grim »philosophy of labour«, according to which, to induce the service of the West Indian workforce after they had been freed, »the only remedy is coercion«.⁸⁵ Macaulay wondered if the »argument for coercing« the formerly enslaved of the Caribbean would perhaps eventually turn against »the spinners of Manchester and the grinders of Sheffield?«.⁸⁶ Macaulay was a Whig member of the House of Commons when, a few years later, Parliament passed not only the Slavery Abolition Act but also the 1833 Factory Act, which prohibited child labour for those younger than nine years and improved the working conditions of children over that age.⁸⁷ However, as Thomas Holt has observed, this was the same Parliament that also enacted the 1834 Poor Law Amendment Act, or New Poor Law, which abolished »outdoor« relief for the »able-bodied« poor and established workhouses for the exploitation of paupers according to the notion of »less eligibility«; aimed at deterring the poor from claiming relief, this principle mandated that conditions within workhouses be worse than those available outside.⁸⁸ This was a‍‍‍ crucial step in the production – and discipline – of the dependent workforce necessary to industrialise Britain.⁸⁹ Crucially, this system of coercion and criminalisation imposed on the metropolitan >working classes would serve as the model for legislating for the soon-to-be fully emancipated labourers of the West Indies.

From 1834 to 1838, in anticipation of the forthcoming abolition of apprenticeship, metropolitan authorities kept up pressure on West Indian legis|latures to complete the revision of their labour laws and amend existing »imperfections«, namely, those norms preserved unchanged from, or still too evocative of, the times of slavery.⁹⁰ Due to the reluctance of Caribbean assemblies to do so, and in the wake of the publication of critical accounts of the abuses of apprenticeship (such as the abolitionists Joseph Sturge and Thomas Harvey’s The West Indies in 1837) as well as the consequently increased zeal of the British campaign for full emancipation,⁹¹ in April 1838 Parliament passed the Act to Amend the Act for the Abolition of Slavery, which mitigated the terms of apprenticeship. This Act, coupled with the fear of a general rebellion on Caribbean plantations, prompted colonial assemblies to approve abrogative enactments to end the apprenticeship of both praedial and non-praedial workers on 1 August 1838.⁹² These measures had an immediate effect in some colonies, such as Jamaica, where most formerly apprenticed labourers refused to go back to work for a month.⁹³ There, at least, the pessimistic prediction of Special Magistrate John Anderson – namely, that once fully emancipated, the Caribbean workforce would pursue »freedom without industry« – appeared to materialise.⁹⁴

However, Anderson had also envisaged a possible solution: »I fear compulsory labour must always be resorted to among the majority of negroes, if we wd. restrain them from vagabondism.«⁹⁵ By criminalising self-sufficient production (which in some of the West Indies was fostered by the availability and fertility of unoccupied soil) as vagrancy, the law could reintroduce the compulsion to dependent labour – theoretically abolished by full emancipation – in a new guise, and help turn the formerly enslaved into a class of perpetual servants even after the end of apprenticeship.⁹⁶ In July 1838, Special Magistrate John Colthurst took great pains to explain to apprentices that, from the beginning of August, they would become »free agent[s], only restrained by the law«; in fact, he clarified, as »the restraints of the law of apprenticeship are about to be withdrawn«, there was an »urgent necessity of introducing other and more legitimate restraints«.⁹⁷ The abolition of apprenticeship did not require a more indulgent set of labour laws but a more rigorous one. This had also been implicitly suggested by the then Secretary of State for the Colonies, the abolitionist Lord Glenelg, in a despatch sent to West Indian Governors late the previous year:

The laws which determine […] the mutual rights and duties of employers and servants, […] those which relate to vagrancy, to the maintenance of the poor, [and] to police […] will survive the apprenticeship, but may be found very ill adapted to a state of things in which compulsory labour will be no longer practised. I do not intend to state that this code will in all cases be found to press with undue severity on the emancipated population. In some cases the objections may be of a different nature.⁹⁸

In Glenelg’s view, »duly severe« Master and Servant regulations, combined with and reinforced by laws against vagrancy and squatting, were required to produce the wage nexus. The Governor of Jamaica, Lionel Smith, echoed Lord Glenelg when he remarked that, »if specific laws have been found desirable for the working classes in all free countries«, those laws had to be even stricter in the West Indies, »where the proprietor is smarting under the loss of absolute control over his slaves«.⁹⁹ What Douglas Hay and Paul Craven have called the »medieval genesis« of English labour legislation persisted: in the 19th-century West Indies, as much as in plague-afflicted 14th-century England, labour legislation was »predicated on labour shortage«.¹⁰⁰

In the summer of 1838, colonial legislatures hurriedly undertook a revision of their labour legislation, and the Colonial Office was overwhelmed by colonial legislative drafts. To thwart these inefficient and hasty amendments, Colonial Secretary Glenelg and Undersecretary Stephen |drafted a set of ordinances collected under the title of New Laws Proposed to Meet the New Relations of Society, which were sent to Crown Colonies as Orders in Council for immediate enactment, and to representative colonies as legislative models.¹⁰¹ These provisions inter alia regulated employment (and, similar to metropolitan regulations, detailed penalties for breach of contract); vagrancy (applicable to the »able-bodied« labourers who did not work but also to practitioners of obeah, which drew elements from African religions and was considered tantamount to sorcery); marriage (which had to take place in a public, Christian service and required meticulous registration); squatting and unauthorised occupation of lands (punishable by imprisonment and hard labour); and the sale of Crown lands (whose price should not drop below a certain amount).¹⁰² By drawing parallels between West Indian provisions and the measures enacted in Britain and other parts of its Empire, the drafters of these orders demonstrated that the same set of social problems, as well as similar legal solutions, interconnected the different parts of the imperial structure. In the collection of New Laws, the measures regulating the alienation of West Indian Crown lands were compared to the instructions sent to New South Wales, Van Diemen’s Land and Swan River in Australia; the Police Act had been, in Glenelg’s words, drafted »with the assistance of the commissioners of metropolitan police«; and, quoting from Poor Law Commissioner John Shaw Lefevre, it was the Irish Poor Law Act (1838) which had served as »the model of the measures to be adopted in the West India colonies«.¹⁰³

Metropolitan and colonial administrators seem to have been eager to stress that the employment laws which from that moment on would govern the service of West Indian labourers were not specific to them but also regulated working conditions in Britain. Lord Glenelg observed that »even in this country the Legislature has found it necessary to interpose between parties standing in th[e] relation […] of master and servant«; no wonder, therefore, that similar laws »form a part of every new code transmitted from the West Indies«, that is, the sets of measures drafted by Caribbean legislatures and sent to London in the summer of 1838.¹⁰⁴ Likewise, commenting on a new vagrancy law to be enacted in Barbados, Undersecretary Stephen clarified that »the definitions of the offences are taken with scarcely any variation from the British statutes, and the powers vested in the Justices of the Peace in England are transferred to the corresponding functionaries in the colony.«¹⁰⁵ It was also deemed important by colonial authorities to make the emancipated cognisant of this affinity between metropolitan and colonial legislation. In a March 1838 proclamation, Governor Smith warned Jamaican apprentices that »in freedom you will have to depend on your own exertions for your livelihood […]. Idle people who will not take employment, but go wandering about the island, will be taken up as vagrants, and punished in the same manner as they are in England.«¹⁰⁶ In his view, former apprentices needed to be told that the harsh measures which regulated their performance of labour were not an aberration to the free labour market but were consistent with the juridical ›liberty‹ of wage workers across the Empire. In July 1838, on the eve of the abolition of apprenticeship, the Governor of St.Vincent, George Tyler – after presenting the »law which gives you freedom« (the 1833 Abolition Act) and the »law for regulating and determining disputes between masters and servants« as intimately related – warned the emancipated that apprenticeship would soon be replaced by a set of »laws which will apply to all, whatever may be their station or colour«:

When you hire yourselves you cannot leave your place until the time you agreed to serve is completed [… and] should any servant employed depart without leave, […] the master will apply to a magistrate who is authorized by law to adjudge imprisonment with hard labour for such willful breach of contract […]. The lazy and dissolute […] will surely come within the operation of the next law, which is ›an act for the punishment of idle and disorderly persons, rogues, and vagabonds‹ which declares that every person being able to maintain himself or his family by work or labour, and neglecting or |refusing to do so; every person found wandering about the high roads […]; every person who shall be found […] cultivating or using or trespassing upon the land of any plantation or estate, or any Crown lands, […] shall be deemed an idle and disorderly person and shall be punished as such by imprisonment and hard labour […]. By the other act – ›for the appointment of police magistrates and a constabulary force‹ – you will learn that gentlemen of respectability are appointed, […] whose duty it will be to see and take care that justice is done by the master to the servant as well as by the servant to the master […]. There is a law which prohibits any person quitting this colony who has anyone here dependent upon him or her for support […]. Remember, the strong arm of the law will punish all that misbehave, while it protects and encourages all those who are industrious and of good conduct.¹⁰⁷

The four provisions referred to by Tyler were a Master and Servant law, an act to punish vagrancy, a police act and an emigration act. All measures except for the last were disallowed by the Colonial Office because, according to Glenelg, they »would tend to reproduce, in a new form, many of those evils which it was the design of Parliament to bring to a close by the abolition of slavery«.¹⁰⁸ The Jamaican assembly also clashed with metropolitan authorities in another matter of law: in 1838, after the publication of Captain John Pringle’s alarming Report on Prisons in the West Indies,¹⁰⁹ Parliament applied the Act for the Better Government of Prisons to the colony. The stubborn resistance of the Jamaican assembly to the urgently required reform of the island’s prison system (regulated by the Gaols Act of 1834) almost pushed the British government to suspend the colony’s Charter for five years.¹¹⁰

However, the appointment in 1839 of John Russell, who was more sympathetic towards Caribbean planter elites, as Colonial Secretary eventually provided West Indian assemblies with greater autonomy in the revision of their labour laws.¹¹¹ Throughout the 1840s, Jamaica passed, among others, an Act for the Punishment of Idle and Disorderly Persons, Rogues and Vagabonds, an Act to Organize a General Police and Constabulary Force, an Act to Provide Penitentiaries in This Island, an Act to Authorize the Several Courts of This Island to Inflict Corporal Punishment, and an Act for the More Effective Prevention of Trespasses upon Property.¹¹² The assembly of Barbados followed in Jamaica’s footsteps by approving, over a span of a few years, an Act to Regulate the Hiring of Servants, an Act for the Suppression and Punishment of Vagrancy, an Act for the Government and Better Ordering of the Poor of This Island and the Prevention of Bastardy, a Consolidated Police Act and an Act to Regulate the Emigration of Labourers.¹¹³ Concurrently, vagrancy regulations, pass laws and police, militia and prison acts were enacted across the other West Indies. In addition, apprenticeship was reintroduced in a new form, as indentured labourers from India and China (the so-called »coolies«) started being ›imported‹ in order to depress the wages of the formerly enslaved by producing competition between »indigenous« and »foreign« workers.¹¹⁴ Moreover, in years when an increasing number of Caribbean labourers were becoming independent cultivators, various ad hoc measures were devised to bolster social control over them. Not only did several islands raise the‍‍‍ price of Crown lands to impede their purchase, they also increased taxation on necessities in order‍‍‍ to reinforce labourers’ dependence on cash wages.¹¹⁵ The Jamaican assembly introduced several customs duties and indirect taxes on goods mainly consumed by the labouring classes. In 1844, a Capitation Tax for road maintenance, also in Jamaica, was criticised by the then Secretary of State for the Colonies, Lord Stanley, as an instrument to coerce wage labour by »producing artificial poverty« among labourers.¹¹⁶ Meanwhile, in Britain, that same year 1844 witnessed the intro|duction into the House of Commons of a Bill for Enlarging the Powers of Justices in Determining Complaints between Masters, Servants and Artificers. Outraged working-class leaders compared the draft law to the criminal provisions of »the days of baron and serf« and to the slave codes applied to »negroes in America«. The Bill was withdrawn following vociferous campaigning by Chartists and trade unionists that had included petitions and mass meetings.¹¹⁷ The ruling and proprietary elites on both sides of the Atlantic felt the economic and social need to keep the working classes poor and disciplined, and framed laws offering convenient formulas and sanctions for this purpose.

In the Caribbean, another strategy adopted for fabricating the »artificial poverty« of workers was the rent/wage system: the homes and provision grounds (to which enslaved people had had free access) were now subject to a rental obligation.¹¹⁸ This peculiar overlapping of labour and rental agreements (whereby planters were simultaneously employers and landlords, and labourers wage-earners and tenants) made any worker’s »breach« of contract a double crime: as a committee of Jamaican estate managers put it in 1839, »squatting on the properties« and »sitting down under a passive refusal to do any sort of work« amounted to offences against both »the right of ownership« and »the just requirements of industry«.¹¹⁹ In Jamaica, house rents were usually charged per capita; they tended to be lower for tenants who worked on the neighbouring plantation than for non-employees, and could even amount to almost half of the ordinary rate of pay.¹²⁰ Moreover, as rents were deducted from the weekly salary, it was even easier to curtail wages arbitrarily to punish alleged neglect of duty and insubordination.¹²¹ A copy of an 1838 Jamaican regulation on the »rate of wages« shows the rental and labour restrictions applied to former apprentices: everyone, including children over six, was expected to work on the estates where they lived, in exchange for a wage but receiving neither a food allowance nor medical care; labourers »must, as in England, bear the loss of every day [they are] unable to work« and, if they disagreed with their employers, they had to leave the property, »not to return«. A handwritten side »reservation« commented that the »freeman« thereby appeared to be not only in a »worse condition than an apprentice, but even than when he was a slave«.¹²² As stipendiary magistrate Richard Chamberlaine reported, »notices to quit« became an oft-used coercive instrument in the hands of planters to punish refusal to work and demands for higher wages after the end of apprenticeship. Chamberlaine condemned this »suicidal« policy, which in his opinion would sooner or later push former apprentices to desert the plantations and become »independent cultivators«.¹²³ Chamberlaine was farsighted: as shown by Douglas Hall, disputes over rent led several labourers to abandon their former houses and grounds and resort to peasant farming. This was their »protest against the inequities of freedom«.¹²⁴

The precise form taken by the rent/wage system differed from colony to colony. In Barbados, so-called »conditional tenancy« was established: labourers could occupy accommodation on their employers’ estates, provided they worked on plantations five days per week; the penalty for non-compliance was ejection.¹²⁵ This was a colonial version of the »tied cottage« in Britain, where occupancy came with the requirement of service to the owner of the property.¹²⁶ Colonial Office functionary James Spedding described the Barbadian system in the following terms:

The great mass of the labourers are tenants at will of their former masters and have no homes but such as belong to them. The manager calls on them to enter into a contract involving heavy duties and small pay and lasting for a long time […]. In case of any kind of failure to fulfil the entire conditions of it, which need not be expressed in writing, […] they are liable […] to be summarily ejected from the estate. Being ejected, they may be brought before the nearest justice as vagrants wandering abroad […] and sentenced to hard labour.¹²⁷|

Spedding’s account illustrates the vicious circle of pauperisation, criminalisation and coercion in which the West Indian emancipated were trapped. They were »captives« in a system in which the formal device of free labour, the contract, was imposed on them by their employers and, according to a law passed in Antigua in 1834 and later replicated in other islands, could be made orally or even merely »implied«.¹²⁸ In non-plantation colonies such as Belize and the Bahamas, the white elites found other systems to maintain their disciplinary powers over the emancipated. Labour contracts for mahogany workers in the Belizean forests featured wage advances to bind labourers to their employers and stipulated imprisonment in the event of breach.¹²⁹ This system was frequently combined with the so-called »truck«, which was also enforced in the Bahamas and had only recently been outlawed in Britain with the Truck Act of 1831. »Truck« denoted a system in which wages were paid not in cash but in the form of credit or tokens that labourers had to use to purchase their supplies from their employers’ stores. This practice frequently resulted in a form of debt bondage, as workers were subject to extortionate prices and then bound to pay their employers back through extra labour.¹³⁰

The social conditions of Caribbean labourers were further worsened by the unequal administration of justice.¹³¹ In the late 1830s, Undersecretary Stephen recommended maintaining the system of Special Magistrates established during apprenticeship to check on locally appointed Justices of the Peace and guarantee greater impartiality, but his proposal was rejected.¹³² The copies of cases tried at petty sessions in Port Royal, Jamaica, at the beginning of 1839 reported several complaints by labourers against planters and estate managers for double rents levied as a punishment for having worked fewer than five days per week. In the same year in Spanish Town, over one hundred and thirty labourers were convicted for »disorderly conduct«, breach of contract and petty theft in only two months; while several of them were sent to the house of correction to receive hard labour, the maximum penalty their employers faced for mistreatment of workers were fines.¹³³ A Jamaican stipendiary magistrate denounced these injustices in a letter to the Governor: as most courts at petty sessions were staffed by planters, labourers usually found it difficult even to obtain a hearing; in this manner, he remarked, »the benefit of freedom to the negro will be utterly destroyed«.¹³⁴

5. Conclusion: Constitutional Divergence (1866–1875)

In the early 1840s, however, the »benefit of freedom« was also still fairly unknown to the white working class in Britain, where thousands of labourers continued to be prosecuted under the terms of the Master and Servant provisions every year.¹³⁵ In 1865, a new Prison Act was enacted to standardise the British penitentiary system by systematising punishment; the Act, however, still provided for hard labour on the treadmill.¹³⁶ In 1867, a revised Master and Servant Act was passed, which, despite partially limiting the criminalisation of the workers’ behaviour, nonetheless gave magistrates the power to summarily impose imprisonment for »aggravated« misconduct.¹³⁷ The journalist and historian Frederic Harrison’s bitter comment was that »the power of enforcing a contract by prison is a miserable remnant of class oppression«.¹³⁸ However, an improvement in the conditions of metropolitan workers was on the horizon. In 1871, Parliament legalised trade unions with the Trade Union Act, and in 1875 the Conspiracy and Protection of Property Act lifted the strictest constraints on strike action.¹³⁹ Eventually, in that same year, the Employers and Workmen |Act abrogated the equalisation of employment breaches by labourers with criminal offences. This marked the end of labour legislation as it had existed in England since the mid-14th century.¹⁴⁰

As Robert Steinfeld has noted, it was no coincidence that the British Parliament passed the Trade Union Act, the Conspiracy and Protection of Property Act and the Employers and Workmen Act after the Representation of the People Act 1867 (or Second Reform Act, which extended the suffrage to a portion of the urban male working class) followed by the introduction of the secret ballot in 1872.¹⁴¹ Whereas those who were on the »servant« side of labour legislation had been traditionally denied the franchise (which had been conceived not as a right but as a privilege indissolubly attached to the possession of property and a resulting condition of social independence),¹⁴² as soon as the representatives of the working classes entered the House of Commons in the wake of the 1868 general election, the reform of employment relations became an item on Parliament’s agenda.¹⁴³ In the British case, electoral reform was thus a necessary precondition for the repeal of the criminalisation of employment breaches.

In the West Indies, by contrast, the restrictions imposed on the political participation of the non-white working population, followed by the constitutional transformation of the political regimes of most representative colonies, whose elected assemblies were abrogated, prevented the substantial improvement of Caribbean labour laws. In a social context where issues of race and class were tightly intertwined, and yet narratives of racial difference were often instrumentalised by proprietors to distract from class inequality, the electoral requirements for white voters in Caribbean islands with representative institutions had traditionally been few in order to allow whites of all classes to vote. When some of the formerly enslaved began to purchase small landholdings after the end of apprenticeship in 1838, these simple requirements meant that they, too, would be potentially able to access the franchise and, over time, win seats in the local legislatures.¹⁴⁴ This raised the fear that the political systems of several of the West Indies could potentially come to be dominated by a majority of »servants« – something still anathema even in Britain. To prevent the establishment of what Edward Gibbon Wakefield, the theorist of systematic colonisation, envisaged with horror as a »Black democracy«,¹⁴⁵ property qualifications were raised to prevent the emancipated from becoming electors.¹⁴⁶ In Barbados, for example, the so-called »Brown Privilege Bill« (or Act to Remove Certain Restraints and Disabilities Imposed by Law on His Majesty’s Free Coloured and Free Black Subjects in This Island) opened political participation to free non-white people in 1831, while simultaneously setting as an electoral requirement their possession of a house worth at least £30 (whereas for whites, the stipulated worth was £10).¹⁴⁷ In Jamaica, where electoral privileges depended on the possession of real property worth only £6, measures were proposed throughout the 1830s and 1840s to raise property, taxpaying and literacy qualifications for the franchise.¹⁴⁸ The two electoral reforms of 1852 (which limited the number of small freeholders registered on voting lists to taxpayers) and 1859 (which imposed a 10-shilling stamp duty on voting) were effective in restricting the numbers of non-white voters.¹⁴⁹ However, the crucial step in this process came in 1866, when, after the Morant Bay Rebellion (itself preceded by the passing of the so-called »Whipping Act«, which reintroduced flogging as a punishment for repeated convictions for larceny), the Jamaican assembly abolished itself with the Act to Alter and Amend the Political Constitution of This Island,¹⁵⁰ turning it into a Crown Colony. The final, permanent method for preventing the traditionally planter-dominated colonial assembly from becoming increasingly populated by non-white members was to have no representative legislature at all.¹⁵¹ The same constitutional transformation was introduced in the other West Indies in the late 1860s and through the 1870s; only Barbados and the Bahamas retained their old systems.¹⁵²

Meanwhile, the extension of the franchise in Britain was racialised by being presented as a white |achievement: in 1866–1867, while some conservatives were hopeful that the »introduction of [… a] recently emancipated antagonistic population into a constituency of old representatives« in the West Indies would sound unconceivable even to »the most sanguine democrat who would be ready to compose the constituency of the House of Commons chiefly of working men«, one of these »sanguine democrats«, the anti-slavery politician John Bright, supported electoral reform on the ground that Britons should not live like »the coolies imported into the West Indies«.¹⁵³ The social privilege inscribed in whiteness was presented to the British working classes as a form of compensation for their coercion to wage labour: they were destitute but, thanks to their skin colour, they were entitled to political privileges which were still out of reach for the even more impoverished, non-white labourers of the Caribbean. While racial difference was exploited in Britain to construct a fictitious national unity in years of alarming social tensions, it was also used in the West Indies to refashion the old hierarchies of slave society into the new labour relations between propertied white masters and poor Black servants.¹⁵⁴

6. Coda: Between Status and Contract

While the broadening of the franchise in Britain, on the one hand, and racist ideas and discourses, on the other, led labour legislation in the metropole and the West Indies to diverge from the 1860s onwards, at the time of slavery emancipation in the mid-1830s the legal provisions regulating the working life and political participation of the labouring classes on both sides of the Atlantic had much in common. From 1834–1838, West Indian labourers were progressively released from their juridical enslavement while simultaneously coerced into service via a varied set of social and legal constraints little different from those imposed on the poorest members of British society. This article has investigated these measures by reassessing the findings of existing scholarship on slavery abolition and post-emancipation labour legislation from a longer-term and transnational perspective, considering the British metropole and its Caribbean colonies as part of a single analytic field. Combining the approach of legal history with the interests of social history – as well as, in the previous section, insights from political and constitutional history – it has privileged continuities over the change from enslavement to freedom. As a result, I have demonstrated that, in the British West Indies, the law was the formal device in the hands of employers – who were also landowners and constituted the majority of electors and members of legislative assemblies – to retain social control over the freedmen even after the latter’s transition from chattelisation to British subjecthood. These legal measures, however, were, on the one hand, inspired by metropolitan labour legislation but were also, on the other, reminiscent of slavery, fostering an insidious ambiguity between the status of the enslaved and the contractual condition of free labourers. This ambiguity was criticised by the lawyer, judge and former member of the Imperial Legislative Council of British India, James Fitzjames Stephen, the son of the Colonial Undersecretary. In 1879, while commenting on a draft Master and Servant law to be applied to India, Stephen drew on the distinction between »status« and »contract« theorised by Henry Sumner Maine¹⁵⁵ to argue that the bill for India exhibited »an anachronism dating from the days of slavery«, because it assumed employment relations as »related to status«, similar to the ascribed condition of »master and slave«; however, »inasmuch as the rights and duties of masters and servants depend, in the present day, upon contract, […] the measure ought now to be treated as a branch of the general law of contract«, whereas the bill was, in fact, »a supplement to the Penal Code«.¹⁵⁶

Here, Stephen highlighted the traditional ambiguity of English labour laws since the mid-14th century: their definition of employment relations as midway between a transaction regulated by |private law and a status determined by public law. As Simon Deakin and Frank Wilkinson have observed, industrialisation in Britain was not accompanied by the full contractualisation of labour relations – quite the contrary: the new »contractual theory of employment« and the »old notion of service« coexisted for some time, producing a »conjunction of status and contract« that lasted as long as workplace violations by employees were criminalised.¹⁵⁷ In the late 1870s, the transition from status to contract had only recently begun in Britain, but the West Indies continued to ignore the contractual liberty promised by a free labour market. Upon the abolition of enslavement, the ›new‹ post-emancipation Caribbean societies had come to share the paradoxical features of ›old‹ British society: the hierarchical differentiation of free and equal individuals into masters and servants, and the imposition of the wage nexus by coercive means.¹⁵⁸