CO882-(2-3) — Page 322

PUBLIC RECORD OFFICE

Reference :-

C.O.882

2 PUBLIC RECORD OFFICE, LONDON

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tion from the wages of the complainants which was unauthorized and illegal; but, for this net no penalty is inflicted. The failure to pay servants' wages," referred to in the Order in Council of 7th September, 1838 (Chapter 4, section 8) had been "com- plained of and proved," but the Magistrate declined to extend to the complainants any of the remedies provided by that Section to meet such cases. The complainants had admittedly suffered a wrong, but the only redress to which they were found entitled was the restitution of the bare sum which had been illegally retained from them. When it is borne in mind that the time during which this complaint was pending did not count as part of the period during which the labourers were under contract to the defendant, but would fall to be replaced at the close of the complainants' engagements, the unfair- ness of finding them entitled to the bare sum only which had been deducted from their wages, and to recover which they had been at such expense in the way of wasted time,- is abundantly apparent.

In dealing with this count, the Court of Petty Sessions adopted, in opposition to the whole bulk of the other evidence, the statement made by the defendant to the Pro- tector of Immigrants. I have already stated my reasons for dissenting from such a course. The result, in fact, to which this Court came was that the complainants, other than those belonging to Lutchman's band (who formed a very large majority), had been subjected to unlawful retentions from their wages to pay for tools. In law the Court held that these men were entitled to receive from their master the sum of 3. each, being the amount, as stated by the defendant, so deducted from their wages. I have stated above the grounds on which I consider that such an award, being merely the restitution of money illegally retained, did not meet the requirements of the case.

7. The same remarks apply to the judgment with reference to the seventh count in the original complaint, and the third in the amended complaint.

If the money deducted from the labourers' wages to pay for the pump was illegally retained, as was found by the Stipendiary Magistrate, the complainants were entitled to something more than bare restitution, especially as the enforcement of that restitu- tion had involved the sacrifice of so large a portion of their only capital-time. The prejudice which they suffered by being obliged to continue for upwards of five months longer in the service of the defendant, to replace the time occupied in proving their complaint, was an infinitely greater hardship than the mere restitution of the improper deduction was a benefit.

The judgment of the Petty Sessions on this point was "that the charge on this count must be dismissed, the charge not coming within the jurisdiction of the Court." It is difficult to understand the reason of this judgment. One thing is clear, namely, that all deductions from wages, such as that in question, are unlawful under the Stipen- cliary Code, unless they can be proved to come under some authority,-conferred by law upon masters in general, or conferred by the consent of the labourers on their master in any particular case. There is no law authorizing such deductions as the one in question. The whole point, therefore, resolves itself into the simple question, "Has the defendant proved in this case that the deduction was made with the complainants' consent "The l'etty Sessions seem, on the whole, to be of opinion that such consent was proved, though the following sentences from their judgment throw some doubt on this point: "It would have been less liable to contestation had such subscription not Leen deducted from their wages. It has no longer the look of a voluntary subscrip- tion."

From the evidence, I have come to the conclusion that this deduction from the complainants' wages never received their full consent, and that, therefore, the deduction was unlawful. But in whichever way the evidence is viewed, the competency of Stipen- diary Courts to deal with such a complaint,-involving, as it does, the question of the lawful or unlawful retaining of wages,-scems beyond doubt; and the dismissal of the charge on the ground stated can only be ascribed to an imperfect apprehension of the question at issue, and of the nature of the jurisdiction of Stipendiary Courts.

8. The Stipendiary Magistrate decided that the eighth count of the original com- plaint was not within "the competency of the Stipendiary Court." As it was not thought advisable to press this count in the amended complaint, I do not think it necessary to examine the grounds of this opinion, which, however, I believe to be

erroneous.

9. In dealing with the ninth count in the original complaint, and the fourth count

in the amended complaint, the Stipendiary Magistrate says as followB

"The evidence adduced on this point has been too vague to enable the Court to estimate the amount of prejudice done to each of the five complainants." No adjudica tion was made under this count in favour of the complainants. This result is certainly a curious one. The language of the judgment involves an admission that the alleged

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grievance (retention of wages for "malade-travail") was proved, and, as to this, there could, one would imagine, be no doubt, as the practice of making deductions on this ground was admitted by the defendant to exist on the estate. But, though the burden of proof had, by that very admission, been transferred to the defendant, and it had become incumbent on him to prove that the complainants rarely suffered under this exaction, the magistrate does not hesitate to hold that no redress can be given, 89, though proved to be due, it had not been proved to exactly what extent it was due. The exact amount of indemnity due was a fact which, from the inability of Indian witnesses to speak with precision as to dates, was incapable of proof. If the principle here adopted were to be followed in Stipendiary Courts, redress would most frequently be utterly beyond the reach of the immigrant. If he, before obtaining redress, is to be called on to establish the dates on which he suffered from a continually recurring grievance, and on failure to do so is to be denied all redress, then it is quite impossible for him to obtain it.

The Court of Petty Sessions, while arriving at a somewhat more reasonable decision, have yet failed, I think, to do justice to the complainants. The result at which the magistrates arrived in point of fact, was, that a practice existed on the estate of deducting Bd. from the wages of a labourer for each day on which he was marked as guilty of "malade-travail," In law, they held that such a practice was unjustified. But the conclusion they came to was that justice would be done by condemning the defendant to refund the sums marked in his estate book as withheld from the com. plainants on this ground. Now, I am inclined, in the first place, to doubt the justness of allowing the books of the estate (kept, as has been seen, with no very rigid accuracy) to be final as to the number of instances in which this deduction had been made. But, be this as it may, it is certainly contrary to every principal of equity that such an illegal and repeated breach of contract should be punished by no severer penalty than bare restitution. Such an award might have met the justice of the case if the deductions had been made innocently and in good faith; but, when it is considered that the deductions must be held to have been made illegally and wrongfully, inasmuch as there is no authority to be found for such a practice, I think that the penalty was much too light. Restitution was certainly due, but something more, in the way of compensation to the labourer for the hardship suffered, the difficulty of obtaining redress, and as a penalty against the master, should, in my opinion, have been awarded. For these reasons, I think that the judgment of the Petty Sessions in this instance, also erred in too great leniency towards the master.

In the preceding pages I have endeavoured to note, under the various sections, everything that appeared to me to be of sufficient importance to call for remark in regard to the proceedings under, and judgments following upon the complaint by the labourers of "Mont Choisy" estate against their employer, Mr. H. Poulin.

Humbly reported to his Excellency the Governor by,

(Signed) A. .G. ELLIS, Substitute Procureur-General.

APPENDIX No. 1.

Statements by Defendant to Protector of Immigrants.

Statements made to the Honourable Mr. Beyts by Mr. H. Poulin, on “Mont Choisy” Estate, on the 11th May 1871.

Water.

On the 3rd October last I received 98 dollars from a gang of about 118 men for a pump which I put up at their request. I established the pump in a well situated in their camp called Bois-Rouge. There had been no pump before. Water used to be drawn from the well by means of buckets. It was solely for their convenience, and not for my own purposes, that I bought the pump, which cost me 688 dollars.

Deductions for Tools.

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It has been a long-standing practice on this estate to stop, from the first or second payment of wages, 8s. for each man as a guarantee for the tools confided to him. The amount so deducted from each man's pay is returned to him at the end of his contract, if he then leaves the estate, and before leaving returns his tools. The rule applies to Creoles as well as to Indians. The men of Lutchman's gang (831,794), who have

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