CO882-(2-3) — Page 315

PUBLIC RECORD OFFICE

Reference :-

TLC.O.882

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PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH—NOT TO

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Brahmin, seems to have been only the passive one of allowing the Indians to fall at his feet and engage to go and complain. The evidence against the other two, Soebrothe and Sookun, was that one witness said, "We are all suffering, and a Sirdar also; let us go to the police," and " Do each of you give 6d. that Bhoodhun (sent to the police The evidence showed no trace of compulsion, or for cutting wood) may be released.” force of any kind, used at the meeting by any one to induce their comrades to go and complain. On this evidence the district magistrate (Mr. Mayer) condemned the four above-mentioned to three week's imprisonment.

This judgment is a curious one in whatever way it is regarded. Looked at as proceeding on the evidence, the conclusion seems drawn from quite inadequate premises. Evidence of “ persuasion to leave the service" of Mr. Poulin there is none, and the evidence of presence at, and part taken in the meeting of the 8th May, is of the weakest possible kind. Regarded as an application of the Article of the Penal Code above quoted, the judgment shows an imperfect appreciation of the law. The part of the article which the Magistrate held applicable to the facts which he found proved, must have been " persuading or endeavouring to persuade such servant. to leave the service of his master, or to absent himself therefrom," but to constitute absence itself (and, therefore, also persuasions to absent) a criminal offence, there must In the present case there was be the additional element of want of justifiable cause.

no proof of this qualification. The purpose for which two of the defendants were said, by one witness, to have advised the others "to go to the police," was in exercise of their undoubted right to complain of their treatment on the estate. The article was evidently designed to meet the case of persuasion used to induce servants unlawfully to leave or absent themselves from their master's service. Here the cause of absence was a just and proper one. It was one of those "justifiable causes" which take absence from work out of the category of "unlawful absences," as defined by Article 49 of Ordinance No. 31 of 1887, and exempt from punishment for absence. The judgment is a misapplication of the law, and if Indian labourers are to be debarred, under pain of imprisonment, from consulting each other with regard to any hardship under which they may labour, and from agreeing together to complain, their case will indeed become a hard one, as many of them have neither the intelligence nor the boldness to assert their rights alone.

This information was followed up by another of a similar nature against the defendants, which was also followed by imprisonment in two or three instances.

These incidents in the commencement of the case cannot but he regarded as calculated to terrify and intimidate the remainder of the complainants, showing them, as they did, that any co-operation in bringing a complaint was regarded by the District Magistrate and treated as a criminal act. In the appendix hereto (No. 6) a return is given of the various informations and complaints made before the District Court by Mr. Poulin against his labourers during the time that the complaint by the latter against him was pending before the Stipendiary Court and the Court of Petty Sessions. The two informations above referred to for persuading labourers to leave his service are the most important, but they all serve to explain the manner in which Mr. Poulin dealt with the complainants.

The hearing of the complaint of the sixty-seven Indians was begun in the Stipen- diary Court on the 28rd of May. With a view to protect the complainants from the influences which might have been brought to bear upon them, had they been compelled to return to the defendant's estate, pending an enquiry into the truth of a complaint (which the statement of the defendant had already shown to be well founded in several particulars), the Protector of Immigrants interposed and provided lodging and rations In the first for them at the Immigration Depôt during the hearing of the case. instance, a Mr. Lionnet, Barrister-at-Law, appeared for the defendant, Mr. Poulin, and On that day, in con- conducted the case during three sittings, until the 5th June. sequence of disrespectful language and conduct towards the Magistrate, Mr. Renouf, Mr. Lionnet was suspended, and the defendant, who is himself a Barrister, thereafter conducted his own case. In the conduct of the complainants' case I was assisted by Mr. Vaudagne, Barrister-at-Law, who was retained by the Indians.

In consequence of Mr. Poulin's want of experience in the practice of Courts of Law, and also owing to his very evidently manifested design to prolong the hearing of the complainant to the utmost, in order to exhaust the patience of the Magistrate, and of every one connected with the case, the progress made in the examination of witnesses was excessively tardy. Every means was adopted on behalf of the complainants to expodite procedure; but, as the defendant declined to accept the evidence with regard to one complainant, as bearing on the case of the remainder, unless he were allowed to

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select the complainants whose cases were to be made the subject of investigation,—an offer which could not be accepted by those in charge of the complainants' case-it was found necessary to go into evidence in detail with regard to the complainants seriatim.

Proceeding in this system the complainants were called in turn, and from each, on his examination, the names of witnesses who could speak to the grievances of which he complained were elicited.

This mode of procedure was extremely slow, the more so, as the defendant used his right of cross-examination so as most unnecessarily to protract the hearing of the case. As an instance of this, it may be mentioned that in some cases while the examination in chief of a witness lasted less than half an hour, the cross-examination was continued for upwards of eight hours.

A large portion of these oross-examinations was not relevant to the matter at issue; but although this was duly brought under the notice of the Magistrate, the objection was generally overruled, on the ground that, though the relevancy of the evidence was not apparent, the greatest latitude must be given to the defendant in consideration of his inexperience.

From the method adopted by the defendant, the examination of five of the complainants, and of witnesses in support of their case, ocupfed eighteen sittings. At the end of that period, I moved the Magistrate to disjoin the case of the complainants already heard from that of the remaining sixty-two, în order that the case of the former might be adjudicated upon, and the complaint annended with reference to the remainder. This motion was made as the evidence already led had convinced me that the complaint might be curtailed and simplified by the omission of some of the grounds of complaint of secondary importance.

The motion was granted by the Court, and on the 14th of July the hearing of the general witnesses in favour of the five complainants was commenced, and continued during eight sittings until the 31st of July. On that day the case of the five complainants was closed, after having occupied the Court during twenty-six days.

The defendant began to adduce evidence on the 4th of August, and concluded on the 22nd of August. This speedy conclusion was due to the fact of the Magistrate having stated that his opinion with reference to the most important question, namely, that of overworking labourers, had been already formed in favour of the defendant, who accordingly desisted from adducing further evidence with regard to this point, The soundness of this opinion, and how far it was consistent with the evidence before the Court, I shall have occasion to examine hereafter.

The case of the defendant having been closed, the 5th September was fixed as the sitting for hearing parties on the evidence. As this day was also the first day of the sittings of the Assize Court, at which I was obliged to be present, I applied for another day to be fixed, mentioning a day on which I should be disengaged. In reply to this application the Magistrate wrote to me, informing me that the day I mentioned would not suit the convenience of the Court, and stating that the case stood adjourned to 11th September, when, if I could not be present, no further opportunity would be afforded me, and the defendant would be heard. The day mentioned was again one on which I required to be present as public prosecutor in the Assise Court, and all applications for a further postponement or alteration of the day mentioned were unavailing.

On 11th September Mr. Vaudagne was heard for the complainants, and the defendant commenced his pleading, which lasted for the greater part of two sittings. At the conclusion of his pleading, I craved leave to address the Court for the complainants, again explaining that my inability to attend on the days previously fixed, arose from the fact of public duty requiring my presence elsewhere. This application was refused by the Magistrate.

On 20th September judgment was pronounced on the complaint of the five complainants. That judgment is given at length in the appendix (No. 2), and it is sufficient to say here that the 2nd, 3rd, 4th, 6th, and 9th counts were dismissed by the Magistrate on the ground of want of evidence; that the 1st count was decided in favour of the defendant; that the 8th count was held not to be "within the competency of the Stipendiary Court," and that the 5th and 7th counts were found proved, and the defendant ordered to pay the sum of 9s. to each of the complainants "as an indemnity or refund." Costs were reserved, and the complainants were ordered to return to the defendant's estate.

This judgment, delivered on the thirty-eighth sitting in the case, disposed of the complaint of five of the sixty-seven complainants. The Court having been occupied