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Under the first of these aspects (ie., in the case where a debtor really pledges a person), the system obviously comes within the definition of slavery, and it has been abolished implicitly in all countries where the status of slave has been done away with.
Nevertheless, the abolition of slavery has not in itself had the effect of rendering illegal the acceptance by the creditor of a hostage pending the payment of his debt, particularly if the hostage agrees to the restraint on his person. That is perhaps why certain Governments, such as Annam and the Rio de Oro Colony, have explicitly prohibited the pledging of a person.
However this may be, thanks to the diffusion among the natives of modern ideas regarding the rights attaching to the human person, as well as to the action of the courts, the practice in question is disappearing or at all events those aspects of it which constitute an infringement of liberty. Similar progress cannot, of course, be recorded for countries in which slavery is still a legal institution.
The so-called pledging of the person is rarely found now, save in the third aspect described above-i.e., in the case of services rendered to a creditor by a debtor or voluntarily by a third party, in payment of the debt.
54. This change, desirable though it may be, in that it results in a system coming within the legal conceptions of civilised peoples, may nevertheless give rise to malpractices.
The first is where the creditor, when the debtor offers or agrees to serve in payment of his debt, is free not to stipulate in the contract the length of time during which the debtor shall be bound to render service for this purpose. This abuse appears to be fairly widespread among primi- tive peoples, and it is perhaps the fear of it that has led certain Governments to declare specifically that no one may discharge his debts by placing himself in the service of his creditor. That is the case in Kedah.
A second malpractice has been pointed out in the Temporary Commission's 1925 report- namely, where the contract between the creditor and the debtor acquires full effect irrespec- tive of the amount of the debt or of the duration of the services to be rendered in discharge thereof. Not only will the debtor when threatened with proceedings agree, in order to avoid them, to serve for a period out of all proportion to the value of his debt, but often, too, the creditor will induce the debtor while in his service to become more heavily indebted, which may have the effect of practically placing him under the obligation to sign a new lease of service and to spend the rest of his life or a great part of it as his creditor's servant.
כיון
The Committee, to its great regret, has not found, in the material supplied, any information contesting the allegation referred to in the 1925 report to the effect that this practice, termed in certain countries peonage or "concertaje still exists in some of the American countries. It appears, however, from a communication from the Government of Ecuador, that it was abolished in that Republic by law in 1919. If it formerly existed in the Philippines, it has been explicitly prohibited there now. Other Governments, such as that of the Netherlands, in the Netherlands East Indies and in the other oversea territories governed indirectly by the Netherlands, have done away with it.
The Governments lay down that the giving of services in discharge of a debt shall not be valid unless the relevant contract stipulates exactly the amount of the debt, the value of the labour to be supplied to redeem it, and the period within which the debt will be redeemed. The same system appears to have been adopted also in the Bahrein Archipelago,
B. Suggestions.
55. As regards the measures to be taken against the acquisition of girls by purchase, even when disguised as payment of dowry, the only suggestion the Committee has to offer is that the courts should determine if, in fact, the transaction is one of purchase and sale and, if so, to deal with it as an act of enslavement.
56. As regards the enslavement of children in the disguised form of adoption, the Committee suggests, if China has not already done so, that she should take administrative repressive and social measures to punish offenders similar to those adopted by most western countries for the protection of children.
57. As regards the pledging of a human being, this should never be recognised by the courts' whether the latter have before them a real case of pledging or the holding of a hostage as a means of forcing the debtor to pay his debt. Penalties should be inflicted when the person pledged is a child, since a child is not in a position to know its rights or to assert them.
58. Even the obligation to work for a creditor in payment of the debt should not be recognised as valid unless that obligation ensues from a contract between the creditor and the person giving his services and unless the contract stipulates the amount of the debt, the nature of the work and the value at which it is assessed for the redemption of the debt. Further, measures should be adopted to protect the person who has entered into an undertaking to work. Thus, save when the amount of the debt has been mentioned in a deed submitted to or drawn up with the assistance of a public official, or has been established under the terms of a judgment, the person who has under- taken to render service in payment of the debt should be able, up to the date of the expiry of the period laid down for his work, to contest the amount of the debt unless it is certain that the debtor had formally recognised the existence of the debt at the time of concluding the contract of service. Further, the assessed value of the labour to be supplied should not be below what is sanctioned by usage in the district, according to the nature of the work and the age and capacity of the person
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who has entered into an obligation to render service. In the third place, whatever the amount of the debt, the labour contribution should not exceed a period to be determined by law (as has been enacted by the Portuguese and French laws), whether the labour is performed continuously or intermittently. Lastly, the contract should not be binding if it refers to a debt contracted in the course of labour supplied in discharge of a previous debt. In addition, the debtors should be encouraged to take their cases to the competent authorities.
The Committee further suggests that, to prevent abuse, steps should be taken to see that advances or loans are not authorised with a view to inducing the natives to pay them back in the form of labour, which would evade the legal stipulations concerning the contract of service.
CHAPTER VI. . — DOMESTIC OR PREDIAL SERVITUDE (SERFDOM).
A. Survey of the Situation.
59. The 1924 Temporary Commission was inclined to think that, in addition to slavery within the meaning usually attributed to it prior to the 1926 Convention, the institutions of certain States and the customs of more or less primitive peoples included, before the advent of the colonising nations, a status which, without being slavery according to the current conception, was still not that of full liberty.
The 1924 Temporary Commission unanimously agreed that the various forms of institution known as domestic or predial slavery or serfdom differed enormously in their effects. These effects" may imply the most abject servitude or, on the other hand, an obligation of service compa- rable to that due from a villein to his lord under the feudal system formerly common in Europe; they may give to the master or owner powers of life and death over the slave or give him only certain customary privileges not specially onerous upon the latter; they may give the slaves even a particularly favourable position in the master's household
Without endorsing the views expressed by M. Delafosse as to the exact situation in the French colonies of tropical Africa, which views are reproduced in paragraphs 79 to 86 inclusive of the Temporary Commission's report, the latter expressed the opinion that the description given in M. Delafosse's survey was probably more or less applicable to other territories of the African continent.
According to M. Delafosse, the serf cannot be one individual's chattel; he can only belong to a collective body, which is either a native State or a tribe, or, most frequently, a family in the wide sense of a family collectivity. He cannot be sold.
The Committee considered it of special importance to examine the customary rights of the master over the serfs, because the information supplied by the French Government raises the question as to the extent to which slavery still survives in French oversea possessions in veiled forms, such as domestic slavery and household captivity, and the slaves of tribes or chiefs. The French report expresses the view that the present Committee was set up to consider, inter alia, whether the 1926 Convention provides the States with the desired means for entirely abolishing such survivals.
60. The French experts on the present Committee formally refused to describe as even partial slavery the condition of a man whom his master had not the right to sell or even to bring back by force if he left him, whom the master could not get rid of when the serf had become a useless mouth to feed and whom he must keep until he died, thus solving, without any red tape, the serious problem in European countries of social insurance; a man who, at any moment, by appealing to the French law which was made known with sound of trumpets and proclamations, from 1906 to 1908, in all French African villages could resume his full liberty and who only remained with his master from force of habit or gratitude, because and so long as the latter treated him well; a man who, having the choice in his language between two expressions, one meaning "slave properly so-called" and the other " a serving man born in the house called himself by the latter term.
Moreover, the French expert added that thirty-five years of French direct administration had profoundly modified the mentality of the natives and had led them spontaneously to abandon a number of customs. Under the influence of various social and economic factors, the former status of domestic servitude was now disappearing. Such was the evolution, and it was so rapid that the term "house captive "had no longer any real meaning in the eyes of the native populations. The French expert thought that by continuing to confuse slavery in the ordinary sense of the term, and even slavery as very broadly defined in the 1926 Convention, with the social state to which he had just referred, where it still existed, was to commit two grave faults: on the one hand, the gravity of what still remained of slavery in the world was exaggerated in the eyes of the public, and, on the other, the League's attention was diverted from the main problem, which was the suppression of the last remaining raids and slave-markets, and the complete abolition of the status of slave in all countries where it still existed.
The French expert considered that in Abyssinia, side by side with some hundreds of thousands of genuine slaves who should be freed as soon as possible, there were, above all, social conditions analogous to domestic serfdom that were in no way inhuman, and were often not without advantage for the social and economic equilibrium of the country. These conditions will gradually disappear of themselves.
The Portuguese expert fully agreed with the views expressed by the French expert.
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