CORRESPONDENCE respecting the Status of Slavery in East Africa and the Islands of Zanzibar and Pemba.1898, 1899.

No. 1.-Sir A. Hardinge to the Marquess of Salisbury.-(Received July 11.)

(Extract.)

Zanzibar, June 13, 1898.

I HAVE the honour to acknowledge the receipt of your Lordship's despatch of the 9th ultimo, respecting Seyyid Khalifa's engagement that all children born in his dominions after the 1st January, 1890, should be free.* I was inaccurate in my reference to this engagement in my despatch of the 9th February, which was written from Mombasa, where I was unable to refer to previous papers, for there was not even an unpublished Decree on the subject, but merely an Article, in a Treaty, which the Sultan stipulated should be kept secret, at least so far as his own subjects were concerned, until he was in a position to make it public. Only three copies of this Treaty, or rather two originals and one copy, are in existence-one, the English original, which was sent home to your Lordship; one, the Arabic original, which is in the archives of Her Majesty's Agency; and one in English, a mere copy of the English original, which is bound up in the volumes of our Confidential correspondence. As a consequence, the two Sultans who succeeded Seyyid Khalifa remained in ignorance of the engagement; and the present Sultan was, I believe, the first to learn of its existence in the course of the discussions which took place in connection with the last abolition Decree.

The Native Courts at Mombasa approached the question of this Agreement, as I imagine they were bound to do, in a purely legal spirit, looking at it as a matter of law alone, without reference to considerations of expediency. They dealt with it precisely as they would have dealt with an engagement by Seyyid Khalifa about the sale of liquors, or about a concession to a foreign merchant, and so dealing they found that there was before them no legal evidence, or any evidence at all except report, of the existence of the Agreement, much less of its embodiment in any legal instrument which could make it binding upon the subjects of the Sultan. By the laws and customs of Zanzibar an order of the Sultan must be formally issued in a particular way (like an "Order in Council" with us) before its provisions can be appealed to or enforced, for the Sultan, though an absolute Prince, is not an utterly irresponsible despot, but is, I

Article III of Agreement of September 13, 1889. See Vol. LXXXI,

page 1291.

believe, bound, both by usage and the Sheria of Islam, to observe in making his enactments certain regular and recognized legal forms, and as a matter of principle the doctrine that a law cannot be held to be binding before publication is, I think, pretty generally received both in Christian and Mahommedan States. From a strictly legal point of view, therefore (and Mr. Cracknall thinks also from that of equity"), the Courts could not take away rights secured by law, and by earlier and later Decrees (for Seyyid Ali's Decree, on which the present rights of slave-owners rest, confirms all decrees and ordinances made by his predecessors, but says nothing of Treaties), on the strength of a Treaty stipulation of uncertain existence and wording, and which, moreover, even if its existence could have been proved, was not embodied as required by the local law, in any decree, ordinance, or regulation.

I fully understand, however, that, whatever may be the views of jurists, Her Majesty's Government, in their natural anxiety to promote the disappearance of slavery, should regard the question from the broader standpoint of policy and utility; and it was for this reason that I thought it right to call your Lordship's attention to the decision of the judicial authorities. Now that I know your opinion on the subject, it will be quite easy for me to give effect to it without encroaching upon the province of Tribunals.

The simplest way of doing this would appear to be that 1 should issue a short notification in English and Arabic, which would be sent to the various authorities concerned, but which, as affecting only natives and not British subjects, need not contain any reference to "The East Africa Order in Council.”

The notification would run somewhat as follows:

"Whereas His late Highness Seyyid Khalifa-bin-Saïd agreed on the 13th September, 1889, with Her Majesty's then Agent and Consul-General at Zanzibar, that all persons born in his dominions after the 1st January, 1890, should be free;

"And whereas some doubt has arisen, owing to the non-promulgation of this Agreement in His Highness' mainland dominions, whether it is valid and operative in them:

"It is hereby declared by Her Majesty's Commissioner and Consul-General for the East Africa Protectorate, under authority from Her Majesty's Government, that the said Agreement is valid and operative in the aforesaid mainland dominions of His Highness the Sultan of Zanzibar, and that no person born subsequent to the 1st January, 1890, can be legally claimed as a slave within them."

I should mention that no appeal has been, or is likely to be, instituted from the decisions of the two Mombasa Courts. It was not in fact raised by the parties, but by Mr. Craufurd himself, who, kuowing of the Agreement by report, was in doubt whether, notwith

standing the numerous precedents to the contrary, the Court could not, or ought not, to enforce it.

As regards Zanzibar, I have informed the Sultan's Government, in the note of which I have the honour to inclose a copy, that no compensation should, until further notice, be paid in respect of children born since the 1st January, 1890. The instances in which it has been paid up to the present are, Mr. Alexander informs me, very few.

Turning next, as directed by your Lordship, to the interests of the children as affected by the Agreement, I do not believe that its enforcement will be attended by any widespread or serious injury to them; and, in any case, the danger of this happening is likely to diminish every year as the number of parents, and therefore of children, born as slaves, decreases both here and on the mainland by the operation of the existing laws, and as the children themselves, many of whom are over 8 years old, become more and more able to support themselves. The poorer slave-owners, who count every penny they possess, and can ill afford to fill a number of young mouths without prospect of return, may, in many cases, if they realize the meaning of the measure, turn these children, both here and on the mainland, out of doors; and in the case of the little girls, the majority of those so turned out will probably become prostitutes at a very early age, though many may be rescued by the Missions in districts where the latter have stations. But the wealthier Arabs, whose religion enjoins on them, and who practice on the whole in a high degree, the virtues of charity and humanity to their dependents, would, I believe, think it dishonourable to cast out any helpless young children whom, whatever their status by our laws, they would regard as still their slaves in the eyes of God, and as possessing on that account a moral claim on them. To a man who is well off and given to Eastern hospitality, the supplying of the simple wants of native Africans is not a very serious expense; two or three pairs of small black hands, more or less, in the rice dish will not ruin him, and I do not think, if the notification suggested above is issued, that its effect will for some time be widely felt, for the young slaves themselves will not move in the matter unless we compel them, which your Lordship would, I think, scarcely wish us to do.

The chief danger these children have to fear from the enforcement of the Agreement lies in cases where their master dies, leaving several sons and daughters, and they are claimed before the Courts (on the mainland) by his various legal heirs. If the Courts treat the Agreement as a valid Decree, they must in such case face its consequences and free the children, who will thus become masterless and homeless, until, tempted by hunger to theft, they will find a new home

and begin a new and less pleasant form of servitude within the walls of the Protectorate gaol. The Missions, as I have stated above, may help to mitigate the evil, and the Courts might be asked to send homeless freed children to them. The best arrangement would, I think, be to apprentice them, after freeing them, for a term of years, or until they could support themselves, to their masters, where the latter were trustworthy and honourable; but I make this suggestion with some diffidence, in view of the feeling expressed in England against apprenticeship, and its rejection by your Lordship in your instruction to me of February 1897. I would not, indeed, have ventured to submit it at all but for the important difference between the apprenticeship in individual cases of young homeless children (which exists in England itself), and the institution of a general system of apprenticeship for all slaves, young and old, as a sort of universal transition or middle term between servitude and absolute freedom which is what I understood you more especially to condemn. The future of the freed girl children is, moreover, for obvious reasons, a graver problem than that of the boys.

Your Lordship will be able to judge from the foregoing observations of some of the difficulties in the way of combining a strict enforcement of Seyyid Khalifa's engagement with the material and moral interests of the slave children. It is easy to exaggerate these difficulties, and when all has been said, a little homeless negro waif in East Africa is not as badly off as a white child similarly situated in Europe; but that some degree of suffering will be occasioned in many cases to these children is, I fear, inevitable, and though it may be palliated, and in particular instances entirely remedied, I cannot suggest any general panacea. It is one of the numerous hardships which a radical and rapid social change, such as that through which these countries are being forced, must inflict on many classes and individuals.

The Marquess of Salisbury.

ARTHUR H. HARDINGE.

P.S.-June 17th. I have the honour to inclose herewith a copy of Mr. Alexander's reply to my note to him of the 12th instant which has just been received by me.

(Extract.)

(Inclosure 1.)-Sir A. Hardinge to Mr. Alexander.

A. H. H

Zanzibar, June 12, 1898. You are aware that on the 13th September, 1889, His Highness Seyyid Khalifa-bin-Saïd signed an Agreement with Her Majesty's Agent and Consul-General, which provided amongst other things that all children born in his dominions after January 1890 should be free. This Agreement was reported to Her Majesty's Government, and is

now generally known to all persons in Great Britain who are interested in the affairs of Zanzibar.

The Article respecting children born after 1890 was, however, owing to the unwillingness of the Sultan to offend his subjects, never published or issued in any legal form here, and has therefore not hitherto been deemed legally valid in accordance with the laws and customs of Zanzibar. The Courts in the mainland dominions of His Highness, both in the time of the Imperial British East Africa Company and since, have also apparently always held themselves bound to ignore it until it was embodied in legal form, and my attention having recently been called to a case in which they did so, I deemed it my duty to report their action to Her Majesty's Secretary of State. In doing so I mentioned to his Lordship that the Zanzibar Government were giving compensation in respect of children born since 1890, on the ground, which they had thought not contested, that these children were "legally" held, inasmuch as no prohibition to hold them had been embodied in any instrument which, according to the laws of Zanzibar, was binding on His Highness' subjects.

I have now received a despatch from the Marquess of Salisbury, in which he informs me that this view cannot be admitted by Her Majesty's Government, and that no compensation should be paid for children born after the 1st January, 1890. A. Alexander, Esq.

SIR,

ARTHUR A. HARDINGE.

(Inclosure 2.) Mr. Alexander to Sir A. Hardinge.

Zanzibar, June 17, 1898. I HAVE the honour to acknowledge receipt of your despatch of the 12th instant with reference to an Agreement signed on the 13th May, 1889, between Seyyid Khalifa-bin-Saïd and Her Majesty's Agent.

I note that the Marquess of Salisbury has informed you that Her Majesty's Government cannot admit the view that has been hitherto taken of the Agreement by the Courts in the mainland, and more lately by the Courts of His Highness' Government here in awarding compensation in respect of children born since 1890. I shall therefore do as you request, namely, give no further compensation to owners of children born since 1890, and direct the Courts, here and at Pemba, not to award compensation in similar cases.

Sir A Hardinge.

I have, &c.,

A. ALEXANDER, Acting Treasurer.