91
16
-
17
The documents supplied or transmitted by the British Government tend to confirm this statement. There are said to be no sales of children, but children are placed in service, on payment, it is true, of a sum of money to the parents, though the main object is to ensure the child the means of subsistence, which the parents cannot give it. The child is regarded rather as a member of the family in which she is placed; in any case, though obliged to give her services, she occupies in the house a position superior to that of the paid servants. According to the same authority, Mui Tsai are rarely ill-treated, as the Chinese love children. Further, the Chinese courts, it is stated, inflict severe penalties on persons guilty of ill-treating children, and such persons lose all standing in public opinion.
Whatever the explanation of this very marked divergence of opinion, the Canton Provincial Government issued on March 1st, 1927, regulations which, inter alia, prohibit the purchase, sale or pledging of young girls as "Mui Tsai". The regulations declare all such contracts null and void. Girls purchased before the publication of the edict are to be known as adopted daughters. Adopted daughters must be well treated, and sent to school from the age of 12 to 16, and married before the age of 23, if they so desire. Penalties are provided for breaches of the regulations. The documents refer to similar regulations in the Province of Fukien, but these appear to authorise adoption by purchase. It appears also that the Nanking authorities have issued provisions similar to those of the Canton Government; but the Committee has not been able to ascertain the purpose of either the Fukien or the Canton regulations. Draft regulations of a stricter character than those of March 1st, 1927, are under consideration at Canton. The Committee is not aware whether they have acquired the force of law.
Such are the data supplied by the existing material, The Committee feels that it should confine itself to describing the contents without endorsing one or other of the opinions summarised above as to the legitimacy or reprehensibility of the " Mui Tsai " system. It would stress the point that, apart from the Chinese delegate to the Assembly of September 1931, these divergent opinions number among their supporters persons who are equally impartial and reliable and who would appear to be equally competent in the matter.
One is led to wonder whether this difference of opinion is not due to a misunderstanding. May it not be the case that, side by side with the Mui Tsai" system, there is a clandestine traffic in young girls in China, as in other countries, for purposes of prostitution? May not the explanation be found in the fact that the parents who live at a distance from the centres of population believe, when they hand over their daughters-with or without payment to persons who present them- selves saying that they are in a position to place the children in circumstances which are for their advantage, that they are providing them with honourable means of livelihood? It is possible and the information supplied by one expert confirms this opinion that these intermediaries abuse the confidence placed in them and hand over the young girls to disorderly houses in return for money. As a general rule, the go-betweens justify the possession of young girls by representing them to be adopted daughters.
B. Suggestions.
46. In view of the progress recorded above, except perhaps as regards China, the Committee has no suggestions to submit beyond those already set forth in the 1925 report-namely, that the Powers desirous of abolishing slavery should re-examine their laws and, if necessary, supplement them, in the light of the data supplied by experience, in such a way as actually to get at all the facts in regard to slave-dealing, including transfer by exchange, sale, gift or occasional sale of persons previously free.
The position in regard to the transfer of slaves by inheritance is a delicate one. While it is evident that, even in this case, it is impossible to recognise any right of ownership of the heir or legatee in the slaves forming part of his inheritance, it is desirable not to make regulations which will compel him to part from them against their own will, since that would be to run the risk of depriving them of their only means of livelihood, which the heir is traditionally bound to provide for them. Such a course would be inadmissible and even cruel in the case of aged or infirm slaves.
47. As regards China, assuming that the "Mui Tsai" system is open to the serious criticism directed against it, legislation such as the Canton Government's Edict of 1927 will certainly not put an end to it, for the edict simply prohibits the sale, purchase and pledging of children. It is, however, far from certain that, under Chinese law, a Mui Tsai" is a child who has been bought in the strict sense of the term. The persons concerned can, as a rule, claim that the purpose of the contract is not to transfer the right of ownership over the child, and that, in consequence, they are not liable to the penalties laid down in the edict, but that the purpose is rather to transfer the rights of paternal authority over the child and to enable the person receiving the child to make use of such services as the latter can render. Legislation embodying the provisions of the Hong-Kong Order would undoubtedly be far more efficacious. Again, one can hardly anticipate the complete disappearance of the "Mui Tsai" system, unless economic conditions in China become such that parents are not obliged to hand over their children to others in order to ensure them the means of livelihood. It is necessary also to reckon with Chinese public opinion, which sees nothing repre- hensible in the "Mui Tsai" system that has been practised for centuries.
As regards procuration properly so-called, the Committee leaves this important question for study by competent organisations.
4
CHAPTER V. PRACTICES RESTRICTIVE ON THE LIBERTY OF THE PERSON.
Under this head, the present report, like that of 1925, deals with practices or customs the legal scope of which is not well known.
A. Survey of the Situation.
(a) Acquisition of Girls by Purchase disguised as Payment of Dowry.
48. The Temporary Commission of 1925 was of opinion that, generally speaking, neither native customary laws nor Moslem law regarding marriage, properly so-called, involved, from the native point of view, the purchase of the wife or any act of enslaving. The custom of concubinage, according to Moslem law and some local customs, is, on the other hand, much more likely to lead to traffic in slaves, since the acquisition of a concubine is usually accompanied by the payment of a certain sum which in that case constitutes a real sale, whatever the word ("gift" or "dowry ") used to designate the payment.
The present Committee is also of opinion that there is a great deal of misunderstanding in regard to the "lobolo" system-i.e., the sum paid to the girl's family by the fiancé. The most competent authorities regard this, not as a purchase price, but rather as a guarantee of proper treatment and an actual certificate of legal marriage. However, there is no doubt that this system has given rise to abuses, especially on the part of natives who no longer belong to any tribe and who carry on a regular trade in wives.
The Committee has here again to record progress, for, when the handing over of a dowry is in fact a disguised purchase that is, when it confers on the person providing the dowry rights analo- gous to those of an owner of a chattel-this practice comes within the category of slave-dealing; it has accordingly lost all legal validity and may even be punishable in countries which, in 1925, still tolerated slavery, but have since abolished it. These countries are enumerated in paragraphs 2 to 6 of the present report.
49. While, in Abyssinia, the 1924 Statute only prohibits the purchase or sale of slaves, it is obviously within the intention of the edict to prohibit the purchase of free persons, especially women, for the purpose of enslaving them. At any event, even if the woman has been purchased before the 1924 Edict, she is entitled to emancipation, not only in the cases for which provision is made in regard to other slaves, but also if she becomes a mother by her master or by a son of the latter.
50. As regards polygamy, which sometimes has the effect in certain countries of reducing the less-favoured wives to a condition hardly distinguishable from slavery, the changed economic conditions are contributing to its disappearance.
Further, the practice adopted by certain colonial Governments of imposing on polygamists a tax in respect of each wife except one is also tending to the abolition of this practice.
(b) Enslavement of Children disguised as Adoption.
51. Adoption is a current practice in the Far East and Oceania, but appears to be less common in Africa. Apart from the objects of adoption, as practised in western countries, it sometimes has religious objects as well. Sometimes also, it is an expression of politeness between families or a tribute to the adopting family by the family of the adopted child. Under these adoption contracts, the treatment accorded to the adopted child differs but little or not at all from that accorded to the children of the person adopting the child.
A French report points out, however, that recourse is sometimes had in Annam to adoption in cancellation of a debt to the parents of the adopted child.
52. It is alleged that, in China, adoption is frequently deprived of its true character in such a way as to amount to real enslavement, involving the conditions of existence to which paragraph 45 of this report refers for the adopted children. The Committee is not in a position either to contest or to confirm these assertions. It may be that these allegations confuse the practice of adoption and the system of " Mui Tsai " and the traffic in children described in paragraph 45 of this report, in which the accusations brought against the system of "Mui Tsai " and the denials with which they are met are set forth.
(c)
Pledging of Third Persons; (d) Pledging of the Debtor himself.
53. This practice has its origin in the absence among the majority of primitive peoples of movable and immovable property which a creditor can seize for the payment of his debt. Among such peoples, it constitutes an essential rule of their customary law.
Does it, however, amount to a regular pledging-i.e., does it confer on the creditor the right to sell the person who has been pledged, or to become the owner of that person if the debt is not paid? Is it not a kind of keeping a person as a hostage until the day of payment? Or, when the person concerned is able to render service, should not this practice be regarded as a means accorded to the debtor of paying in the form of labour the amount of the debt?