XXVIII. THE RIGHT OF PROPERTY…

XXVIII. THE RIGHT OF PROPERTY

THE right of property implies that a certain person or certain persons are recognised as having a right to the exclusive disposal of a certain thing. The owner is not necessarily allowed to do with his property whatever he likes; but whether absolute or limited, his right to disposal is not shared by anybody else, save under very exceptional circumstances, as in the case of "compulsion by necessity."[1] Property in a thing thus means not only that the owner of it is allowed, at least within certain limits, to use or deal with it at his discretion, but also that other persons are forbidden to prevent him from using or dealing with it in any manner he is entitled to.

[Footnote 1: Supra, i. 285 sqq.]

The most common offence against property is illicit appropriation of other persons' belongings. Not the mere fact that individuals are in actual possession of certain objects, but the public disapproval of acts by which they are deprived of such possession, shows that they have proprietary rights over those objects. Hence the universal condemnation of what we call theft or robbery proves that the right of property exists among all races of men known to us.

{2} Travellers often accuse savages of thievishness.[2] But then their judgments are commonly based upon the treatment to which they have been subject themselves, and from this no conclusions must be drawn as regards intra-tribal morality. Nor can races who have had much to do with foreigners be taken as fair representatives of savage honesty, as such contact has proved the origin of thievish propensities.[3] In the majority of cases uncivilised peoples seem to respect proprietary rights within their own communities, and not infrequently even in their dealings {3} with strangers. Many of them are expressly said to condemn or abhor theft, at any rate when committed among themselves. And that all of them disapprove of it may be inferred from the universal custom of subjecting a detected thief to punishment or revenge, or, at the very least, of compelling him to restore the stolen property to its owner.

[Footnote 2: Beni, 'Notizie sopra gli indigeni di Mexico,' in Archivio per l'antropologia e la etnologia, xii. 15 (Apaches). Burton, City of the Saints, p. 125 (Dacotahs and Prairie Indians). Powers, Tribes of California, p. 127 (Yuki). Macfie, Vancouver Island and British Columbia, p. 468. Heriot, _Travels through the Canadas_, p. 22 (Newfoundland Eskimo). Coxe, _Russian Discoveries between Asia and America_, p. 300 (Kinaighi). Georgi, Russia, iv. 22 (Kalmucks), 133 (Buriats). Scott Robertson, Káfirs of the Hindu-Kush, p. 193 sq. Modigliani, _Viaggio a Nías_, p. 468. Powell, Wanderings in a Wild Country, p. 23 (South Sea Islanders). Romilly, From my Verandah in New Guinea, p. 50; Comrie, 'Anthropological Notes on New Guinea,' in _Jour. Anthr. Inst._ vi. 109 sq. de Labillardière, _Voyage in Search of La Pérouse_, i. 275; Moseley, _Notes by a Naturalist on the "Challenger,"_ p. 391 (Admiralty Islanders). Brenchley, _Jottings during the Cruise of H.M.S. Curaçoa_, p. 58 (natives of Tutuila). Lisiansky, Voyage round the World, p. 88 sq. (Nukahivans). Williams, Missionary Enterprises in the South Sea Islands, p. 126 (natives of Rarotonga). Cooke, _Journal of a Voyage round the World_, p. 40; Montgomery, _Journal of Voyages and Travels by Tyerman and Bennet_, ii. 11 (Society Islanders). Barrington, History of New South Wales, p. 22; Breton, _Excursions in New South Wales_, p. 221; Collins, _Account of the English Colony in New South Wales_, i. 599 sq.; Hodgson, _Reminiscences of Australia_, p. 79; Mitchell, _Expeditions into the Interior of Eastern Australia_, i. 264, 304; Lumholtz, Among Cannibals, p. 71 sq. (Australian tribes). Reade, Savage Africa, p. 579 (West African Negroes). Bosman, _Description of the Coast of Guinea_, p. 324 sq. (Negroes of Fida and the Gold Coast). Caillié, Travels through Central Africa, i. 353 (Mandingoes). Beltrame, Il Fiume Bianco, p. 83 (Shilluk). Wilson and Felkin, Uganda and the Egyptian Soudan, ii. 310 (Gowane people of Kordofan). Krapf, _Travels, Researches and Missionary Labours in Eastern Africa_, p. 355 (Wakamba). Burton, Zanzibar, ii. 92 (Wanika). Bonfanti, 'L'incivilimento dei negri nell' Africa intertropicale,' in Archivio per l'antropologia e la etnologia, xv. 133 (Bantu races). Arbousset and Daumas, _Exploratory Tour to the North-East of the Colony of the Cape of Good Hope_, p. 323 (Bechuanas). Andersson, Lake Ngami, pp. 468 sq. (Bechuanas), 499 (Bayeye). Leslie, Among the Zulus and Amatongas, p. 256. Fritsch, Die Eingeborenen Süd-Afrika's, pp. 53 (Kafirs), 372, 419 (Hottentots and Bushmans).]

[Footnote 3: Domenech, Great Deserts of North America, ii. 321. Mackenzie, Voyages to the Frozen and Pacific Oceans, p. xcvi. note (Crees). Burton, Highlands of the Brazil, i. 403 sq. Moorcroft and Trebeck, Travels in the Himalayan Provinces, i. 321 (Ladakhis). Anderson, Mandalay to Momien, p. 151 (Kakhyens). Earl, Papuans, p. 80. Tyler, _Forty Years among the Zulus_, p. 192.]

The Fuegians have shown themselves enterprising thieves on board European vessels visiting their shores;[4] but, when presents were given to them, a traveller noticed that "if any present was designed for one canoe, and it fell near another, it was invariably given to the right owner."[5] The boys are taught by their fathers not to steal;[6] and in case a theft has been committed, "quand le coupable est découvert et chatié, l'opinion publique est satisfaite."[7] In his dealings with the Tehuelches Lieutenant Musters was always treated with fairness, and the greatest care was taken of his belongings, though they were borrowed at times. He gives the following advice to the traveller:--"Never show distrust of the Indians; be as free with your goods and chattels as they are to each other. . . . As you treat them so they will treat you."[8] Among the Abipones doors, locks, and other things with which civilised men protect their possessions from thieves, were as unnecessary as they were unknown; and if children pilfered melons grown in the gardens of the missionaries or chickens reared in their houses, "they falsely imagined that these things were free to all, or might be taken not much against the will of the owner."[9] Among the Brazilian Indians theft and robbery were extremely rare, and are so still in places where strangers have not settled.[10] We are told that the greatest insult which could be offered to an Indian was to accuse him of stealing, and that the wild women preferred the epithet of a prostitute to that of a {4} thief.[11] When detected a thief was not only obliged to restore the property he had stolen, but was punished with stripes and wounds, the chief often acting as executioner.[12] Among the Indians of British Guiana theft and pilfering rarely occur; "if they happen to take anything, they do it before one's eyes, under the notion of having some claim to it, which, when called to an account, they are always prepared to substantiate."[13] If anything is stolen from his house during his absence, the Guiana Indian thinks that the missing article has been carried off by people of some other race than his own.[14] Formerly, when the Caribs lost anything, they used to say, "The Christians have been here."[15] In Hayti the punishment of a thief was to be eaten.[16]

[Footnote 4: Weddell, Voyage towards the South Pole, pp. 151, 154, 182. King and Fitzroy, _Voyages of the "Adventure" and "Beagle,"_ i. 128; ii. 188.]

[Footnote 5: Darwin, Journal of Researches, p. 242. See also Snow, 'Wild Tribes of Tierra del Fuego,' in _Jour. Ethn. Soc. London_, N.S. i. 264.]

[Footnote 6: Bridges, in A Voice for South America, xiii. 204.]

[Footnote 7: Hyades and Deniker, _Mission scientifique du Cap Horn_, vii. 243.]

[Footnote 8: Musters, At Home with the Patagonians, pp. 195, 197 sq.]

[Footnote 9: Dobrizhoffer, Account of the Abipones, ii. 148 sq.]

[Footnote 10: von Martius, Beiträge zur Ethnographie Amerika's, i. 85, 87 sq. Idem, in Jour. Roy. Geo. Soc. ii. 196. von Spix and von Martius, Travels in Brazil, ii. 242. Southey, History of Brazil, i. 247. von den Steinen, Unter den Naturvölkern Zentral-Brasiliens, p. 332. Burton, Highlands of the Brazil, i. 403 sq.]

[Footnote 11: Burton, Highlands of the Brazil, i. 404.]

[Footnote 12: von Martius, Beiträge, i. 88. Idem, in _Jour. Roy. Geo. Soc._ ii. 196.]

[Footnote 13: Bernau, Missionary Labours in British Guiana, p. 51.]

[Footnote 14: Brett, Indian Tribes of Guiana, p. 348.]

[Footnote 15: Kames, Sketches of the History of Man, iv. 133 sq.]

[Footnote 16: von Martius, Beiträge, i. 88, n.*]

It is known that many North American tribes had a very high standard of honesty among themselves. Domenech wrote:--"The Indians who do not come in contact with the Palefaces never appropriate what belongs to others; they have no law against theft, as it is a crime unknown among them. They never close their doors."[17] According to Colonel Dodge, theft was the sole unpardonable crime amongst them; a man found guilty of stealing even the most trifling article from a member of his own band was whipped almost to death, deprived of his property, and together with his wives and children driven away from the band to starve or live as best he could.[18] Among the Rocky Mountains Indians visited by Harmon theft was frequently punished with death.[19] Among the Omahas, "when the suspected thief did not confess his offence, some of his property was taken from him until he told the truth. When he restored what he had stolen, one-half of his own property was returned to him, and the rest was given to the man from whom he had stolen. Sometimes all of the policemen whipped the thief. But when the thief fled from the tribe, and remained away for a year or two, the offence was not remembered."[20] Among the Wyandots the punishment for theft is twofold restitution.[21] The Iroquois looked down upon {5} theft with the greatest disdain, although the lash of public indignation was the only penalty attached to it.[22] The Potawatomis considered it one of the most atrocious crimes.[23] Among the Chippewas Keating found a few individuals who were addicted to thieving, but these were held in disrepute.[24] Richardson praises the Chippewyans for their honesty, no precautions for the safety of his and his companions property being required during their stay among them.[25] Mackenzie was struck by the remarkable honesty of the Beaver Indians; "in the whole tribe there were only two women and a man who had been known to have swerved from that virtue, and they were considered as objects of disregard and reprobation."[26] Among the Ahts "larceny of a fellow-tribesman's property is rarely heard of, and the aggravation of taking it from the house or person is almost unknown"; nay, "anything left under an Indian's charge, in reliance on his good faith, is perfectly safe."[27] The Thlinkets generally respect the property of their fellow-tribesmen; but although they admit that theft is wrong they do not regard it as a very serious offence, which disgraces the perpetrator, and if a thief is caught he is only required to return the stolen article or to pay its value.[28] Among the Aleuts "theft was not only a crime but a disgrace"; for the first offence of this kind corporal punishment was inflicted, for the fourth the penalty was death.[29] According to Egede, the Greenlanders had as great an abhorrence of stealing among themselves as any nation upon earth;[30] according to Cranz, they considered such an act "excessively disgraceful."[31] Similar views still prevail among them, as also among other Eskimo tribes.[32] A Greenlander never touches driftwood which another {6} has placed above high-water mark, though it would often be easy to appropriate it without fear of detection.[33] Parry states that, during his stay at Igloolik and Winter Island, a great many instances occurred in which the Eskimo scrupulously returned articles that did not belong to them, even though detection of a theft, or at least of the offender, would have been next to impossible.[34]

[Footnote 17: Domenech, op. cit. ii. 320.]

[Footnote 18: Dodge, Our Wild Indians, pp. 64, 79. Cf. Charlevoix, Journal of a Voyage to North America, ii. 26, 28 (Hurons).]

[Footnote 19: Harmon, _Voyages and Travels in the Interior of North America_, p. 348.]

[Footnote 20: Dorsey, 'Omaha Sociology,' in _Ann. Rep. Bur. Ethn._ iii. 367.]

[Footnote 21: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._ i. 66.]

[Footnote 22: Colden, in Schoolcraft, Indian Tribes of the United States, iii. 191. Morgan, League of the Iroquois, p. 333 sq. Loskiel, History of the Mission of the United Brethren among the Indians, i. 16.]

[Footnote 23: Keating, Expedition to the Source of St. Peter's River, i. 127.]

[Footnote 24: Ibid. ii. 168.]

[Footnote 25: Richardson, Arctic Searching Expedition, ii. 19 sq.]

[Footnote 26: Mackenzie, _Voyages to the Frozen and Pacific Oceans_, p. 148.]

[Footnote 27: Sproat, Scenes and Studies of Savage Life, p. 159.]

[Footnote 28: Krause, Die Tlinkit-Indianer, p. 167. Holmberg, 'Ethnographische Skizzen über die Völker des russischen Amerika,' in Acta Soc. Scient. Fennicæ, iv. 322. Petroff, Report on Alaska, p. 170. Dall, Alaska, p. 416.]

[Footnote 29: Veniaminof, quoted by Petroff, op. cit. pp. 155, 152.]

[Footnote 30: Egede, Description of Greenland, p. 124. See also Dalager, Grønlandske Relationer, p. 69.]

[Footnote 31: Cranz, History of Greenland, 160.]

[Footnote 32: Nansen, First Crossing of Greenland, ii. 335. Idem, Eskimo Life, p. 158. Rink, Danish Greenland, p. 224. Hall, Arctic Researches, pp. 567, 571. Richardson, Arctic Searching Expedition, i. 352. Parry, Second Voyage for the Discovery of a North-West Passage, p. 522; Lyon, Private Journal, p. 347 (Eskimo of Igloolik). Seemann, Voyage of "Herald," ii. 65 (Western Eskimo). Nelson, 'Eskimo about Bering Strait,' in Ann. Rep. Bur. Ethn. xviii. 293. Among the Point Barrow Eskimo, however, "men who were said to be thieves did not appear to lose any social consideration" (Murdoch, 'Ethnological Results of the Point Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 41).]

[Footnote 33: Nansen, Eskimo Life, p. 162.]

[Footnote 34: Parry, op. cit. p. 521.]

Among the Chukchi it is held criminal to thieve "in the family and race to which a person belongs";[35] and incorrigible thieves are sometimes banished from the village.[36] In Kamchatka, if anybody was found to be a thief he was beaten by the person from whom he had stolen, without being allowed to make resistance, and no one would ever after be friends with him.[37] The three principal precepts of the Ainu are to honour old age, not to steal, not to lie;[38] theft is also uncommon among them, and is severely punished.[39] Among the Kirghiz "whoever commits a robbery on any of the nation must make restitution to nine times the value."[40] Among the Tunguses a thief is punished by a certain number of strokes; he is besidesobliged to restore the things stolen, and remains covered with ignominy all the rest of his life.[41] The Jakuts,[42] Ostyaks,[43] Mordvins[44] Samoyedes,[45] and Lapps,[46] are praised for their honesty, at least among their own people; and so are the Butias,[47] Kukis,[48] Santals,[49] the hill people in the Central Provinces of India,[50] and the Chittagong Hill tribes.[51] The Kurubars of the Dekhan are of such known honesty, that on all occasions they are entrusted with the custody of produce by the farmers, who know that they would rather starve than take one grain of what was given them in {7} charge.[52] "Honest as a Pahari," is a proverbial expression. In fact, among these mountaineers theft is almost unknown, and the men "carry treasures, which to them would be priceless, for days and days, along wild mountain tracks, whence at any moment they might diverge, and never be traced. Even money is safely entrusted to them, and is invariably delivered into the right hands."[53] Harkness says of the Todás:--"I never saw a people, civilised or uncivilised, who seemed to have a more religious respect for the rights of meum et tuum. This feeling is taught to their children from the tenderest age."[54] Among the Chukmas "theft is unknown."[55] Among the Karens habitual thieves are sold into slavery.[56] Among the Shans theft of valuable property is punishable with death, though it may be expiated by a money payment; but in cases of culprits who cannot pay, or whose relatives cannot pay, death is looked upon as a fitting punishment even for petty thefts.[57] At Zimmé, "if a theft is proved, three times the value of the article is decreed to the owner; and if not paid, the offender, after suffering imprisonment in irons, is made over with his family, to be dealt with as in cases of debt."[58] Among the hill tribes of North Aracan a person who commits theft is bound to return the property or its value and pay a fine not exceeding Rs. 30.[59] Among the Kandhs, on the other hand, the restitution of the property abstracted or the substitution of an equivalent is alone required by ancient usage; but this leniency extends to the first offence only, a repetition of it being followed by expulsion from the community.[60] The Andaman Islanders call theft a y[=u]bda, or sin.[61] Among those Veddahs who live in their natural state, theft and robbery are not known at all.[62] They think it perfectly inconceivable that any person should ever take that which does not belong to him,[63] and death only would, in their opinion, be the punishment for such an offence.[64]

[Footnote 35: Georgi, op. cit. iii. 183.]

[Footnote 36: Dall, op. cit. p. 382.]

[Footnote 37: Steller, Beschreibung von Kamtschatka, p. 356. See also supra, i. 311 sq.]

[Footnote 38: von Siebold, Die Aino auf der Insel Yesso, p. 25.]

[Footnote 39: Ibid. pp. 11, 34 sq. See also supra, i. 312.]

[Footnote 40: Georgi, op. cit. ii. 262.]

[Footnote 41: Ibid. iii. 83 sq. Cf. ibid. iii. 78.]

[Footnote 42: Ibid. ii. 397. Sauer, Expedition to the Northern Parts of Russia, p. 122.]

[Footnote 43: Castrén, Nordiska resor och forskningar, i. 319.]

[Footnote 44: Georgi, op. cit. i. 113.]

[Footnote 45: Ibid. iii. 13. von Struve, in Das Ausland, 1880, p. 796.]

[Footnote 46: Jessen, Afhandling om de Norske Finners og Lappers Hedenske Religion, p. 72. Castrén, op. cit. i. 118 sq.]

[Footnote 47: Fraser, Tour through the Him[=a]l[=a] Mountains, p. 335.]

[Footnote 48: Lewin, Wild Races of South-Eastern India, p. 256. Cf. Butler, Travels in Assam, p. 94.]

[Footnote 49: Man, Sonthalia, p. 20.]

[Footnote 50: Hislop, Papers relating to the Aboriginal Tribes of the Central Provinces, p. 1.]

[Footnote 51: Lewin, Wild Races of South-Eastern India, p. 341.]

[Footnote 52: Buchanan, quoted by Elliot, 'Characteristics of the Population of Central and Southern India,' in Jour. Ethn. Soc. London, N.S. i. 105.]

[Footnote 53: Cumming, In the Himalayas, p. 356.]

[Footnote 54: Harkness, _Description of a Singular Aboriginal Race inhabiting the Neilgherry Hills_, p. 17 sq.]

[Footnote 55: Lewin, Wild Races of South-Eastern India, p. 188.]

[Footnote 56: Mason, 'Dwellings, &c., of the Karens,' in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. p. 146 sq. Smeaton, Loyal Karens of Burma, p. 86.]

[Footnote 57: Woodthorpe, in Jour. Anthr. Inst. xxvi. 21.]

[Footnote 58: Colquhoun, Amongst the Shans, p. 131.]

[Footnote 59: St. John, in Jour. Anthr. Inst. ii. 241.]

[Footnote 60: Macpherson, Memorials of Service in India, p. 82.]

[Footnote 61: Man, in Jour. Anthr. Inst. xii. 112.]

[Footnote 62: Sarasin, Ergebnisse naturwissenschaftlicher Forschungen auf Ceylon, iii. 548. Deschamps, Carnet d'un voyageur, p. 385. Nevill, 'Vaeddas of Ceylon,' in Taprobanian, i. 192.]

[Footnote 63: Hartshorne, 'Weddas,' in Indian Antiquary, viii. 320.]

[Footnote 64: Sarasin, op. cit. iii. 549.]

{8} In the Malay Archipelago native custom punishes theft with a fine, most frequently equivalent to twice the value of the stolen article,[65] or with slavery,[66] mutilation,[67] or even death;[68] and in many islands it was lawful to kill a thief caught in the act.[69] Among the Malays of Perak,[70] Dyaks,[71] Kyans,[72] Bataks,[73] and the natives of Ambon and Uliase,[74] theft is said to be unknown or almost so, at least within their own communities.

[Footnote 65: Wilken, 'Het strafrecht bij de volken van het maleische ras,' in Bijdragen tot de taal- land- en volkenkunde van Nederlandsch-Indië, 1883, Land- en volkenkunde, p. 109 sq. Crawfurd, History of the Indian Archipelago, iii. 117. Marsden, History of Sumatra, pp. 221 (Rejangs), 389 (Bataks). von Brenner, Besuch bei den Kannibalen Sumatras, p. 213 (Bataks). Junghuhn, Die Battaländer auf Sumatra, ii. 145 (Bataks), 308 (natives of Passumah in Central Sumatra), 317 (Timorese), 339 (natives of Bali and Lombok). Modigliani, op. cit. p. 496; von Rosenberg, Der malayische Archipel, p. 166 (Niase). Worcester, Philippine Islands, p. 108 (Tagbanuas of Palawan).]

[Footnote 66: Wilken, loc. cit. p. 108 sq. Junghuhn, op. cit. ii. 145 sq. (Bataks). Raffles, History of Java, ii. p. ccxxxv. (people of Bali). Forbes, A Naturalist's Wanderings in the Eastern Archipelago, p. 320 (people of Timor-laut). von Rosenberg, op. cit. p. 166 (Niase).]

[Footnote 67: St. John, Life in the Forests of the Far East, ii. 297 (natives of the kingdom of Borneo, formerly). Low, Sarawak, p. 133. Marsden, op. cit. p. 404 (Achinese of Sumatra). Hickson, A Naturalist in North Celebes, p. 198 (Sangirese). Crawfurd, op. cit. iii. 107, 115. Crawfurd thinks (ibid. iii. 107) that the punishment of mutilation was introduced by Muhammedanism.]

[Footnote 68: Crawfurd, op. cit. iii. 115 (Javanese) Kükenthal, Ergebnisse einer zoologischen Forschungsreise in den Molukken und Borneo, i. 188 (Alfura of Halmahera). Marsden, op. cit. p. 471 (Poggi Islanders). Among the Bataks (von Brenner, op. cit. p. 212) and Achinese of Sumatra (Marsden, op. cit. p. 404) robbery is punished with death.]

[Footnote 69: Wilken, loc. cit. p. 88 sqq. von Rosenberg, op. cit. p. 166; Modigliani, op. cit. p. 496 (Niase).]

[Footnote 70: McNair, Perak and the Malays, p. 204.]

[Footnote 71: Boyle, Adventures among the Dyaks of Borneo, p. 235. Bock, Head-Hunters of Borneo, p. 209. Selenka, _Sonnige Welten_, p. 19. Ling Roth, Natives of Sarawak, i. 81, 82, 92.]

[Footnote 72: Low, op. cit. p. 336.]

[Footnote 73: Marsden, op. cit. p. 389. Junghuhn, op. cit. ii. 148.]

[Footnote 74: Martin, Reisen in den Molukken, p. 63.]

Many of the South Sea Islanders have been described as honest among themselves, and some of them as honest even towards Europeans.[75] In the opinion of Captain Cook the light-coloured Polynesians have thievish propensities, but the dark-coloured not.[76] In the Tonga Islands theft was considered {9} an act of meanness rather than a crime,[77] whereas in many other islands it was regarded as a very grave offence.[78] Sometimes the delinquent was subject to private retaliation,[79] sometimes to a fine,[80] or blows,[81] or the loss of a finger,[82] or the penalty of death.[83]

[Footnote 75: Earl, Papuans, pp. 49, 80, 105. Seemann, Viti, p. 46 sq.; Anderson, Travel in Fiji, p. 130. Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography and Philology_, p. 73 (Micronesians). Melville, Typee, pp. 294 (Marquesas Islanders), 295 n. 1 (various Polynesians). Williams, _Missionary Enterprises in the South Sea Islands_, p. 530 (Samoans). von Kotzebue, Voyage of Discovery into the South Sea, iii. 164 (people of Radack), 255 (Sandwich Islanders). Lisiansky, op. cit. p. 125 (Sandwich Islanders). Dieffenbach, Travels in New Zealand, ii. 105; Meade, _Ride through the disturbed Districts of New Zealand_, p. 162 sq.; Thomson, Story of New Zealand, i. 86; Colenso, Maori Races, p. 43. Bonwick, _Daily Life and Origin of the Tasmanians_, p. 9.]

[Footnote 76: Seemann, Viti, p. 47.]

[Footnote 77: Mariner, Natives of the Tonga Islands, ii. 162. In Ponapé (Christian, Caroline Islands, p. 72) and among the Maoris (Meade, op. cit. p. 162) thieves are said to be despised.]

[Footnote 78: Earl, op. cit. p. 80 (Papuans of Dorey). Ellis, Tour through Hawaii, p. 429; &c.]

[Footnote 79: Turner, Samoa, pp. 278 (natives of Humphrey's Island), 343 (New Caledonians). Lisiansky, op. cit. p. 80 sq. (Nukahivans). Williams, Missionary Enterprises, p. 127 (natives of Rarotonga). Ellis, Polynesian Researches, iv. 420 (Sandwich Islanders).]

[Footnote 80: Earl, op. cit. p. 83 (Papuans of Dorey). Sorge, in Steinmetz, _Rechtsverhältnisse von eingeborenen Völkern in Afrika und Ozeanien_, p. 421 (Nissan Islanders of the Bismarck Archipelago). Williams and Calvert, Fiji, p. 22. Turner, Samoa, p. 281 (natives of the Mitchell Group).]

[Footnote 81: Cook, Journal of a Voyage round the World, p. 42 (Tahitians). Yate, Account of New Zealand, p. 104.]

[Footnote 82: Williams and Calvert, Fiji, p. 23.]

[Footnote 83: Gill, Life in the Southern Isles, p. 47. Turner, Samoa, pp. 290 (natives of Hudson's Island), 295 (natives of Arorae), 297 (natives of Nikumau of the Gilbert Group), 300 (natives of Francis Island), 337 (Efatese, of the New Hebrides). Tutuila, in Jour. Polynesian Soc. i. 268 (Line Islanders). Ellis, Polynesian Researches, iv. 421 (Sandwich Islanders). Cook, Journal of a Voyage round the World, p. 41 sq. (Tahitians).]

Among the natives of Herbert River, Northern Queensland, there is "considerable respect for the right of property, and they do not steal from one another to any great extent. . . . If they hunt they will not take another person's game, all the members of the same tribe having apparently full confidence in each other."[84] When a theft does occur, "the thief is challenged by his victim to a duel with wooden swords and shields; and the matter is settled sometimes privately, the relatives of both parties serving as witnesses, sometimes publicly at the borboby, where two hundred to three hundred meet from various tribes to decide all their disputes. The victor in the duel wins in the dispute."[85] So also among the Dieyerie tribe, "should any native steal from another, and the offender be known, he is challenged to fight by the person he has robbed, and this settles the matter."[86] Of the Bangerang tribe of Victoria we are told that, amongst themselves, they were scrupulously honest;[87] and, speaking of West Australian natives, Mr. Chauncy expresses his belief that "the members of a tribe never pilfer from each other."[88] In their relations to Europeans, again, Australian blacks have been sometimes accused of thievishness,[89] sometimes praised for their {10} honesty.[90] From his own observation Mr. Curr has no doubt that they feel that theft is wrong.[91] Of the aborigines of West Australia we are told that they occasionally speared the sheep and robbed the potato gardens of the early settlers simply because they did not understand the settlers' views regarding property, having themselves no separate property in any living animal except their dogs or in any produce of the soil. But "only entrust a native with property, and he will invariably be faithful to the trust. Lend him your gun to shoot game, and he will bring you the result of his day's sport; send him a long journey with provisions for your shepherd, and he will certainly deliver them safely. Entrust him with a flock of sheep through a rugged country to a distant run, and he and his wife will take them generally more safely than a white man would."[92]

[Footnote 84: Lumholtz, Among Cannibals, p. 147.]

[Footnote 85: Ibid. p. 126.]

[Footnote 86: Gason, in Woods, _Native Tribes of South Australia_, p. 266.]

[Footnote 87: Curr, Recollections of Squatting in Victoria, p. 298.]

[Footnote 88: Chauncy, in Brough Smyth, Aborigines of Victoria, ii. 278.]

[Footnote 89: Supra, ii. 2, n. 1.]

[Footnote 90: Howitt, in Brought Smyth, op. cit. ii. 306. Fraser, Aborigines of New South Wales, p. 90.]

[Footnote 91: Curr, The Australian Race, i. 100.]

[Footnote 92: Chauncy, in Brough Smyth, op. cit. ii. 278.]

"The Arab," says Burckhardt, "robs his enemies, his friends, and his neighbours, provided that they are not actually in his own tent, where their property is sacred. To rob in the camp, or among friendly tribes, is not reckoned creditable to a man; yet no stain remains upon him for such an action, which, in fact, is of daily occurrence. But the Arab chiefly prides himself on robbing his enemies."[93] This, however, seems to hold true only of Bedouin tribes inhabiting rich pasture plains, who are much exposed to attacks from others, whereas in more sheltered territories a person who "attempts to steal in the tents of his own tribe, is for ever dishonoured among his friends." Thus among the Arabs of Sinai robberies are wholly unknown; any articles of dress or of furniture may be left upon a rock without the least risk of their being taken away.[94] According to Waháby law, a robber is obliged to return the stolen goods or their value, but if the offence is not attended with circumstances of violence he escapes without further punishment, except a fine to the treasury.[95] Among some Bedouins of [H.]adhramaut theft from a tribesman is punished with banishment from the tribe.[96] Lady Anne and Mr. Blunt state that, with regard to honesty, the pure Bedouin stands in marked contrast to his half-bred brethren. Whilst the Kurdish and semi-Kurdish tribes of Upper Mesopotamia make it almost a point of honour to steal, the genuine Arab accounts theft disgraceful, although he holds {11} highway robbery to be a right. In the large tribes persons of known dishonesty are not tolerated.[97]

[Footnote 93: Burckhardt, Notes on the Bedouins and Wahábys, p. 90.]

[Footnote 94: Ibid. p. 184 sq. Wallin, _Första resa från Cairo till Arabiska öknen_, p. 64.]

[Footnote 95: Burckhardt, op. cit. p. 301.]

[Footnote 96: von Wrede, Reise in [H.]adhramaut, p. 51.]

[Footnote 97: Blunt, Bedouin Tribes of the Euphrates, ii. 204, 225.]

In Africa honesty between members of the same tribe is no uncommon characteristic of the native races, and some of them have displayed the same quality in their dealings with European travellers.[98] Andersson, for instance, tells us that the Ovambo, so far as they came under his observation, were strictly honest and appeared to entertain great horror of theft. "Without permission," he says, "the natives would not even touch anything; and we could leave our camp free from the least apprehension of being plundered. As a proof of their honesty, I may mention, that, when we left the Ovambo country, the servants forgot some trifles; and such was the integrity of the people, that messengers actually came after us a very considerable distance to restore the articles left behind."[99] A few African peoples are said to look upon petty larceny almost with indifference.[100] Among others thieves are only compelled to restore stolen property, or to return an equivalent for it,[101] but at the same time they are disgraced or laughed at.[102] In Africa, as elsewhere, theft is frequently punished with a fine.[103] Thus {12} among the Bahima,[104] Wadshagga,[105] and Tanala of Madagascar,[106] thieves are made to pay twice the value of the stolen goods; among the Takue,[107] Rendile,[108] and Herero,[109] three times their value; among the Bechuanas double or fourfold.[110] Among the Taveta, if a man commits a theft, he has to refund what he has robbed, and five times the value of the stolen property can be claimed by the person who has suffered the loss.[111] Among the Kafirs, "in cases of cattle stealing, the law allows a fine of ten head, though but one may have been stolen, provided the animal has been slaughtered, or cannot be restored."[112] Among the Masai, according to Herr Merker, the fine for stealing cattle is likewise a tenfold one;[113] whilst, according to another authority, "if a man steals one cow, or more than one cow, all his property is given to the man from whom he has stolen."[114] Among the Basukuma all thieves, it seems, are punished with the confiscation of everything they possess.[115] Other punishments for theft are imprisonment,[116] banishment,[117] slavery,[118] flogging,[119] mutilation,[120] and, especially under aggravating circumstances, death.[121] {13} In some African countries a thief caught in the act may be killed with impunity.[122]

[Footnote 98: St. John, Village Life in Egypt, ii. 198. Tristram, The Great Sahara, p. 193 sq. (Beni Mzab). Nachtigal, Sahara und Sudan, i. 188 (inhabitants of Fezzân). Dyveyrier, Exploration du Sahara, p. 385 (Touareg); cf. Chavanne, Die Sahara, p. 188. Munzinger, _Ostafrikanische Studien_, p. 531 sq. (Barea and Kunáma). Scaramucci and Giglioli, 'Notizie sui Danakil,' in _Archivio per l'antropologia e la etnologia_ xiv. 25. Baumann, _Durch Massailand zur Nilquelle_, pp. 165 (Masai), 179 (Wafiomi). Thomson, _Through Masai Land_, p. 64 (Wakwafi of the Taveta). Baker, Ismailïa, p. 56; Petherick, Travels in Central Africa, ii. 3 (Shilluk). Macdonald, Africana, i. 182 (Eastern Central Africans). Mungo Park, Travels in the Interior of Africa, p. 239; Caillié, Travels through Central Africa to Timbuctoo, i. 353 (Mandingoes). Ward, Five Years with the Congo Cannibals, p. 93; Tuckey, Expedition to explore the River Zaire, p. 374. Johnston, Uganda Protectorate, ii. 590 (Wanyoro). Kolben, Present State of the Cape of Good Hope, i. 326; Hahn, _The Supreme Being of the Khoi-Khoi_, p. 32 (Hottentots); cf. Fritsch, Die Eingeborenen Süd-Afrika's, p. 307. Tyler, _Forty Years among the Zulus_, p. 191 sq.]

[Footnote 99: Andersson, Lake Ngami, p. 197. Cf. Idem, Notes on Travel in South Africa, p. 236.]

[Footnote 100: Monrad, Skildring af Guinea-Kysten, p. 6, n.*; Reade, Savage Africa, p. 580 (West African Negroes). Ellis, History of Madagascar, i. 144.]

[Footnote 101: Munzinger, Ostafrikanische Studien, pp. 389 (inhabitants of Saraë), 494 (Barea and Kunáma). Arbousset and Daumas, op. cit. p. 66 (Mantetis). Cunningham, Uganda, p. 293 (Baziba). Rautanen, in Steinmetz, Rechtsverhältnisse, p. 343 (Ondonga). Warner, in Maclean, _Compendium of Kafir Laws and Customs_, pp. 65, 67. Post, Afrikanische Jurisprudenz, ii. 84.]

[Footnote 102: Munzinger, Ostafrikanische Studien, pp. 386 (inhabitants of Saraë), 531 (Barea and Kunáma). Arbousset and Daumas, op. cit. p. 66 (Mantetis).]

[Footnote 103: Scaramucci and Giglioli, in Archivio per l'antropologia e la etnologia, xiv. 39 (Danakil). Nachtigal, op. cit. i. 449 (Tedâ). Bosman, Description of the Coast of Guinea, p. 142 (Negroes of Axim, on the Gold Coast). Ellis, Tshi-speaking Peoples of the Gold Coast, p. 303. Idem, E[(w]e-speaking Peoples of the Slave Coast, p. 225. Emin Pasha in Central Africa, p. 86 (Wanyoro). Cunningham, Uganda, p. 322 (Manyema). Steinmetz, Rechtsverhältnisse, p. 52 (Banaka and Bapuku). Beverley, ibid. p. 215 (Wagogo). Lang, ibid. p. 259 (Washambala). Wandrer, ibid. p. 325 (Hottentots). Post, Afrikanische Jurisprudenz, ii. 85 sq.]

[Footnote 104: Cunningham, Uganda, p. 20.]

[Footnote 105: Volkens, Der Kilimandscharo, p. 250.]

[Footnote 106: Richardson, 'Tanala Customs,' in _Antananarivo Annual_, ii. 95 sq.]

[Footnote 107: Munzinger, Ostafrikanische Studien, p. 208.]

[Footnote 108: Chanler, Through Jungle and Desert, p. 317.]

[Footnote 109: François, Nama und Damara, p. 174.]

[Footnote 110: Holub, Seven Years in South Africa, i. 395. Casalis, Basutos, p. 228.]

[Footnote 111: Hollis, in Jour. African Soc. i. 123.]

[Footnote 112: Dugmore, in Maclean, Compendium of Kafir Laws and Customs, p. 36. Cf. ibid. pp. 112, 143.]

[Footnote 113: Merker, Die Masai, p. 208.]

[Footnote 114: Hinde, The Last of the Masai, p. 107.]

[Footnote 115: Cunningham, Uganda, p. 304.]

[Footnote 116: Mademba, in Steinmetz, Rechtsverhältnisse, p. 90 (inhabitants of the Sansanding States).]

[Footnote 117: Chavanne, Die Sahara, p. 315 (Beni Mzab).]

[Footnote 118: Bowdich, Mission to Ashantee, p. 258, n.* (Fantis). Petherick, op. cit. ii. 3 (Shilluk of the White Nile). Post, Afrikanische Jurisprudenz, ii. 87.]

[Footnote 119: Reade, Savage Africa, p. 261 (West Equatorial Africans). Ellis, Yoruba-speaking Peoples of the Slave Coast, p. 191. Volkens, op. cit. p. 250 (Wadshagga). Velten, Sitten und Gebräuche der Suaheli, p. 363. Campbell, Travels in South Africa, p. 519. Post, Afrikanische Jurisprudenz, ii. 88.]

[Footnote 120: de Abreu, Discovery and Conquest of the Canary Islands, p. 27 (aborigines of Ferro). Ellis, Yoruba-speaking Peoples, p. 191. Beltrame, Il Fiume Bianco, p. 280 (Dinka). Casati, Ten Years in Equatoria, i. 163 (Mambettu and Wanyoro). Wilson and Felkin, Uganda and the Egyptian Soudan, i. 201 (Waganda). Holub, op. cit. i. 395 sq. (Bechuanas). Post, Afrikanische Jurisprudenz, ii. 87 sq.]

[Footnote 121: Ellis, Yoruba-speaking Peoples, p. 191; Burton, Abeokuta, i. 304 (Yoruba). Ellis, Tshi-speaking Peoples, p. 303. Bosman, op. cit. p. 143 (Negroes of Axim). Cunningham, Uganda, pp. 69 (Banabuddu), 102 (Bakoki), 346 (Karamojo). François, op. cit. p. 175 (Herero). Andersson, Lake Ngami, p. 197 (Ovambo). Casalis, op. cit. p. 228 (Basutos). Shooter, Kafirs of Natal, p. 155. Tyler, op. cit. p. 192 (Zulus). Kolben, op. cit. i. 158 (Hottentots). Post, _Afrikanische Jurisprudenz_, ii. 88 sq.]

[Footnote 122: Hübbe-Schleiden, Ethiopien, p. 143 (Mpongwe). Cunningham, Uganda, p. 333 (Lendu). Burton, Zanzibar, ii. 94 (Wanika). Macdonald, Africana, i. 162, 183 (Eastern Central Africans). Macdonald, 'East Central African Customs,' in Jour. Anthr. Inst. xxii. 109. Supra, i. 289.]

The condemnation of theft, in one and the same people, varies in degree according to a variety of circumstances. It is influenced by the value of the goods stolen, as appears from the different punishments inflicted in cases where the value differs.[123] Thus, when the penalty consists of a fine, its amount is often strictly proportioned to the loss suffered by the owner, the thief being compelled to pay twice, or three, or four, or five, or ten times the worth of the appropriated article.[124] Among the Aztecs a petty thief became the slave of the person from whom he had stolen, whilst theft of a large amount was almost invariably punished with death.[125] According to the Koran, theft is to be punished by cutting off the offender's right hand for the first offence; but a Sunneh law ordains that this punishment shall not be inflicted if the value of the stolen property is less than a quarter of a deenár.[126] Ancient Scotch law proportioned the punishment of theft to the value of the goods stolen, heightening it gradually from a slight corporal to a capital punishment, if the value {14} amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep.[127] In England a distinction was made between "grand" and "petty larceny," the line between them being drawn at twelve pence, and grand larceny was capital at least as early as the time of Edward I.[128] Among various peoples custom or law punishes with particular severity the stealing of objects of a certain kind, such as cattle, horses, agricultural implements, corn, precious metals, or arms.[129] The Negroes of Axim, says Bosman, "will rather put a man to death for stealing a sheep, than killing a man."[130] The Kalmucks regard horse-stealing as the greatest of all crimes.[131] The ancient Teutons held cattle-lifting and robbery of crops to be particularly disgraceful.[132] According to Roman law, people who stole an ox or horse from the pastures or from a stable, or ten sheep, or four or five swine, might be punished even with death.[133] The natives of Danger Island, in the South Seas, punished with drowning anyone who was caught stealing food, "the most valuable property they knew of."[134] In Tahiti, on the other hand, those who stole clothes or arms were commonly put to death, whereas those who stole provisions were bastinadoed.[135] Among other peoples the appropriation of a small quantity of food belonging to somebody else is not punished at all.[136] The Masai do not punish a person for stealing milk or meat.[137] Among the Bakoki "it was not a crime to steal bananas."[138] In ancient Mexico "every poor traveller was permitted to {15} take of the maize, or the fruit-bearing trees, which were planted by the side of the highway, as much as was sufficient to satisfy immediate hunger."[139] Among the Hebrews a person was allowed to go into his neighbour's vineyard and eat grapes at his own pleasure, or to pluck ears in his field, but the visitor was forbidden to put any grapes in his vessel or to move a sickle into the standing corn.[140] It is said in the Laws of Manu that "a twice-born man, who is travelling and whose provisions are exhausted, shall not be fined, if he takes two stalks of sugar-cane or two esculent roots from the field of another man."[141] According to ancient Swedish laws, a passer-by could take a handful of peas, beans, turnips, and so forth, from another person's field, and a traveller could give to his fatigued horse some hay from any barn he found in the wood.[142] However, whilst the punishment of theft is commonly, to some extent, influenced by the worth or nature of the appropriated property, there are peoples who punish thieves with the same severity whether they have stolen little or much. Among the North American Indians described by Colonel Dodge "the value of the article stolen is not considered. The crime is the theft."[143] Among the Yleou, a Manchurian tribe mentioned by ancient Chinese chroniclers, theft of any kind was punished with death.[144] The Beni Mzab in the Sahara sentence a thief to two years banishment and the payment of fifty francs, independently of the value of the thing he has stolen.[145]

[Footnote 123: Steinmetz, Rechtsverhältnisse, p. 52 (Banaka and Bapuku). Nicole, ibid. p. 133 (Diakité-Sarracolese). Beverley, ibid. p. 215 (Wagogo). Bosman, op. cit. p. 142 (Negroes of Axim). Hinde, op. cit. p. 107 (Masai). Post, Afrikanische Jurisprudenz, ii. 91. Idem, Grundriss der ethnologischen Jurisprudenz, ii. 420. Ta Tsing Leu Lee, sec. cclxix. sqq. p. 284 sqq. (Chinese). Keil, Manual of Biblical Archæology, ii. 366. Laws of Manu, viii. 320 sqq. Wilda, Das Strafrecht der Germanen, p. 870 sqq.; Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 296 sqq.; Stemann, Den danske Retshistorie indtil Christian V.'s Lov, pp. 621, 677 sq.; Brunner, Deutsche Rechtsgeschichte, ii. 639 sqq. (ancient Teutons). Du Boys, Histoire du droit criminel de l'Espagne, p. 721.]

[Footnote 124: Supra, ii. 4, 6-8, 12.]

[Footnote 125: Bancroft, Native Races of the Pacific States, ii. 456.]

[Footnote 126: Koran, v. 42. Lane, _Manners and Customs of the Modern Egyptians_, p. 120 sq. Idem, _Arabian Society in the Middle Ages_, p. 20. Sachau, Muhammedanisches Recht, pp. 810, 811, 825 sqq.]

[Footnote 127: Erskine, Principles of the Law of Scotland, p. 568. Innes, Scotland in the Middle Ages, p. 190. Mackintosh, History of Civilisation in Scotland, 231.]

[Footnote 128: Pollock and Maitland, History of English Law before the Time of Edward I. ii. 495 sq. Brunner, Deutsche Rechtsgeschichte, ii. 640. Stephen, History of the Criminal Law of England, iii. 129.]

[Footnote 129: Post, Grundriss der ethnologischen Jurisprudenz, ii. 421 sqq.]

[Footnote 130: Bosman, op. cit. p. 143.]

[Footnote 131: Bergmann, _Nomadische Streifereien unter den Kalmüken_, ii. 297.]

[Footnote 132: Grimm, Deutsche Rechtsalterthümer, p. 636 sq. Wilda, op. cit. p. 875 sq. Nordström, op. cit. ii. 307. Brunner, Deutsche Rechtsgeschichte, ii. 645 sq.]

[Footnote 133: Digesta, xlvii. 14. 1. pr., 1, 3; xlvii. 14. 3.]

[Footnote 134: Gill, Life in the Southern Isles, p. 47.]

[Footnote 135: Cook, Journal of a Voyage round the World, p. 41 sq.]

[Footnote 136: Supra, i. 286 sq. Post, Grundriss der ethnol. Jurisprudenz, ii. 426. Ellis, History of Madagascar, i. 385.]

[Footnote 137: Hollis, Masai, p. 310.]

[Footnote 138: Cunningham, Uganda, p. 102 sq.]

[Footnote 139: Clavigero, History of Mexico, i. 358.]

[Footnote 140: Deuteronomy, xxiii. 24 sq.]

[Footnote 141: Laws of Manu, viii. 341. Cf. ibid. viii. 339.]

[Footnote 142: Nordström, op. cit. ii. 297.]

[Footnote 143: Dodge, op. cit. p. 64.]

[Footnote 144: Castrén, op. cit. iv. 27.]

[Footnote 145: Chavanne, Die Sahara, p. 315.]

The degree of criminality attached to theft also depends on the place where it is committed. To steal from a house, especially after breaking the door, is frequently regarded as an aggravated form of theft.[146] According to Muhammedan {16} law, the punishment of cutting off the right hand of the thief is inflicted on him only if the stolen property was deposited in a place to which he had not ordinary or easy access; hence a man who steals in the house of a near relative is not subject to this punishment, nor a slave who robs the house of his master.[147] Among some peoples a theft committed by night is punished more heavily than one committed by day.[148]

[Footnote 146: Post, Grundriss der ethnol. Jurisprudenz, ii. 423 sq. von Rosenberg, Der malayische Archipel, p. 166 (Niase). Riedel, _De sluik- en kroesharige rassen tusschen Selebes en Papua_, p. 103 (Serangese). Lang, in Steinmetz, Rechtsverhältnisse, p. 259. (Washambala). Wilda, op. cit. p. 878 sq.; Brunner, Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law). Digesta, xlvii. 11. 7; xlvii. 18. 2.]

[Footnote 147: Lane, Modern Egyptians, p. 121. Cf. Burckhardt, Bedouins and Wahábys, p. 301.]

[Footnote 148: Wilken, loc. cit. p. 109 (people of Bali). Digesta, xlvii. 17. 1. Lex Saxonum, 32, 34; Wilda, op. cit. p. 877; Grimm, Deutsche Rechtsalterthümer, p. 637; Brunner, Deutsche Rechtsgeschichte, ii. 646 (ancient Teutonic law).]

A distinction is further made between ordinary theft and robbery. The robber is treated sometimes more severely,[149] sometimes more leniently than the thief, and is not infrequently regarded with admiration. Among the Wanyamwezi thieves are despised, but robbers are honoured, especially by the women, on account of their courage.[150] In Uganda robbery is not thought shameful, although it is rigorously punished.[151] In Sindh no disgrace is attached to larceny when the perpetrators are armed.[152] Among the Ossetes, "where open robbery has been committed outside a village, the court merely requires the stolen article or an equivalent to be restored; but in cases of secret theft, five times the value must be paid. Robbery and theft within the boundaries of a village are rated much higher. A proverb says, 'What a man finds on the high-road is God's gift'; and in fact highway robbery is hardly regarded as a crime."[153] The Kazak Kirghiz go so far as to consider it almost dishonourable for a man never to have taken part in a baranta, or cattle-lifting exploit.[154] According to {17} Bedouin notions, there is a clear distinction between "taking and stealing." To steal is to abstract clandestinely, "whereas to take, in the sense of depriving another of his property, generally implies to take from him openly, by right of superior force."[155] The Arabian robber, says Burckhardt, considers his profession honourable, and "the term haràmy (robber) is one of the most flattering titles that could be conferred on a youthful hero."[156] In ancient Teutonic law theft and robbery were kept apart; the one was the secret, the other the open crime. In most law-books robbery was subject to a milder punishment than theft, and was undoubtedly regarded as far less dishonourable. Indeed, however illegal the mode of acquiring property may have been, publicity was looked upon as a palliation of the offence, if not as a species of justification, even though the injured party was a fellow-countryman.[157] This difference between theft and robbery seems still to have been felt in the thirteenth century, when Bracton had to argue that the robber is a thief.[158] But in later times robbery was regarded by the law of England as an aggravated kind of theft.[159]

[Footnote 149: Ta Tsing Leu Lee, sec. cclxviii. p. 283 (Chinese law). Digesta, xlviii. 19. 28. 10. Erskine, Principles of the Law of Scotland, p. 566. Post, Grundriss der ethnologischen Jurisprudenz, ii. 455 sq.]

[Footnote 150: Reichardt, quoted by Steinmetz, Rechtsverhältnisse, p. 281.]

[Footnote 151: Ashe, Two Kings of Uganda, p. 294.]

[Footnote 152: Burton, Sindh, p. 195.]

[Footnote 153: von Haxthausen, Transcaucasia, p. 411. Cf. Kovalewsky, Coutume contemporaine, p. 342.]

[Footnote 154: Vámbéry, Das Türkenvolk, p. 306. Cf. Georgi, op. cit. ii. 270 sq. (Kirghiz).]

[Footnote 155: Ayrton, in Wallin, Notes taken during a Journey through Part of Northern Arabia, p. 29, n. [double dagger] (in Jour. Roy. Geo. Soc. xx. 317, n. [double dagger]).]

[Footnote 156: Burckhardt, Bedouins and Wahábys, p. 90. Cf. Burton, Pilgrimage to Al-Madinah & Meccah, ii. 101; Blunt, op. cit. ii. 204 sq.]

[Footnote 157: Wilda, op. cit. pp. 860, 911, 914. Grimm, Deutsche Rechtsalterthümer, p. 634 sq. Nordström, op. cit. ii. 314 sq. Maurer, Bekehrung des Norwegischen Stammes, ii. 173 sq. Brunner, Deutsche Rechtsgeschichte, ii. 647 sq. Thrupp, The Anglo-Saxon Home, p. 288. Pollock and Maitland, op. cit. ii. 493 sq.]

[Footnote 158: Bracton, De Legibus et Consuetudinibus Angliæ, fol. 150 b, vol. ii. 508 sqq. Pollock and Maitland, op. cit. ii. 494.]

[Footnote 159: Coke, _Third Part of the Institutes of the Laws of England_, p. 68. Blackstone, _Commentaries on the Laws of England_, iv. 252. Stephen, _History of the Criminal Law of England_, iii. 149. Pollock and Maitland, op. cit. ii. 493. Cf. Wilda, op. cit. p. 914.]

A line has been drawn between manifest and non-manifest theft. Among many peoples thieves who are caught in the act may be killed with impunity,[160] or are punished much more heavily than other thieves, frequently with death.[161] We also hear that the worst part of the offence {18} consists in being detected, and that a successful thief is admired rather than disapproved of.

[Footnote 160: Supra, i. 293; ii. 8, 13. Brunner, Deutsche Rechtsgeschichte, ii. 642. Post, Grundriss der ethnologischen Jurisprudenz, ii. 441 sq.]

[Footnote 161: Mommsen, Römisches Strafrecht, p. 750 sq. Du Boys, Histoire du droit criminel de l'Espagne, p. 378. Brunner, Deutsche Rechtsgeschichte, ii. 642 sq.; Dareste, Études d'histoire du droit, p. 299 sq. Pollock and Maitland, op. cit. ii. 495 (ancient Teutonic law). Post, Grundriss der ethnologischen Jurisprudenz, ii. 443.]

It is said of the Navahos that "the time is evidently not long gone by when with them, as among the Spartans, adroit theft was deemed honourable."[162] Among the Californian Yuki "thieving is a virtue . . . , provided the thief is sly enough not to get caught."[163] The Ahts "have a tendency to sympathise with some forms of theft, in which dexterity is required."[164] Among the Thlinkets "theft does not seem to be considered a disgrace; the detected thief is at most ashamed of his want of skill."[165] The Chukchi "have but a bad opinion of a young girl who has never acquitted herself cleverly in some theft; and without such testimony of her dexterity and address she will scarcely find a husband."[166] In Mongolia "known thieves are treated as respectable members of society. As long as they manage well and are successful, little or no odium seems to attach to them; and it is no uncommon thing to hear them spoken of in terms of high praise. Success seems to be regarded as a kind of palliation of their crimes."[167] Among the Kukis, according to early notices, the accomplishment most esteemed was dexterity in thieving, whilst the most contemptible person was a thief caught in the act.[168] The Persians say that "it is no shame to steal, only to be found out."[169] The same view seems to be held by the Motu tribe of New Guinea,[170] the natives of Tana (New Hebrides),[171] the Maoris,[172] and several African peoples.[173] In Fiji "success, without discovery, is deemed quite enough to make thieving virtuous, and a participation in the ill-gotten gain honourable."[174] Among the Matabele {19} "the thief is not despised because he has stolen, but because he has allowed himself to be caught, and if his crime remains undetected he is admired by all."[175] Among the aborigines of Palma, in the Canary Islands, "he was esteemed the cleverest fellow who could steal with such address as not to be discovered."[176]

[Footnote 162: Matthews, 'Study of Ethics among the Lower Races,' in Journal of American Folk-Lore, xii. 4.]

[Footnote 163: Powers, Tribes of California, p. 133.]

[Footnote 164: Sproat, op. cit. p. 158 sq.]

[Footnote 165: Krause, op. cit. p. 167.]

[Footnote 166: Georgi, op. cit. iii. 183. Krasheninnikoff, History of Kamschatka, p. 232.]

[Footnote 167: Gilmour, Among the Mongols, p. 291.]

[Footnote 168: Dalton, Descriptive Ethnology of Bengal, p. 45.]

[Footnote 169: Polak, Persien, ii. 81.]

[Footnote 170: Stone, A few Months in New Guinea, p. 95.]

[Footnote 171: Brenchley, op. cit. p. 208.]

[Footnote 172: Shortland, Traditions and Superstitions of the New Zealanders, p. 224. Waitz-Gerland, Anthropologie der Naturvölker, vi. 224. Dieffenbach Travels in New Zealand, ii. 111.]

[Footnote 173: Zöller, Forschungsreisen in der deutschen Colonie Kamerun, ii. 64 (Dualla). Wilson and Felkin, op. cit. i. 224 (Waganda). Leslie, op. cit. p. 256 (Amatongas).]

[Footnote 174: Williams and Calvert, op. cit. p. 110.]

[Footnote 175: Decle, Three Years in Savage Africa, p. 165.]

[Footnote 176: de Abreu, op. cit. p. 138.]

The moral valuation of theft varies according to the social position of the thief and of the person robbed. Among the Marea a nobleman who commits theft is only obliged to restore the appropriated article; but if a commoner steals from another commoner, the whole of his property may be confiscated by the latter's master, and if he steals from a nobleman he becomes the nobleman's serf.[177] Among the Káfirs of the Hindu-Kush the penalty for theft is theoretically a fine of seven or eight times the value of the thing stolen; "but such a punishment in ordinary cases would only be inflicted on a man of inferior mark, unless it were accompanied by circumstances which aggravated the original offence."[178] In Rome, according to an old law, a freeman caught in the act of thieving was scourged and delivered over to the party aggrieved, whereas a slave in similar circumstances was scourged and then hurled from the Tarpeian rock;[179] and according to an enactment of Hadrian, the punishment for stealing an ox or horse from the pastures or from a stable was only relegation if the offender was a person of rank, though ordinary persons might have to suffer death for the same offence.[180] In ancient India, on the other hand, the punishment increased with the rank of the criminal. According to the Laws of Manu, "in a case of theft the guilt of a Sûdra shall be eightfold, that of a Vaisya sixteenfold, that of a Kshatriya two-and-thirtyfold, that of a Brâhmana sixty-fourfold, or quite a hundredfold, or even twice four-and-sixtyfold; each of them knowing the nature {20} of the offence."[181] In other cases, again, the degree of guilt is determined by the station of the person robbed.[182] Among the Gaika tribe of the Kafirs, for instance, the fine by which a theft is punished "is fixed according to the rank of the person against whom the offence is committed, confiscation of property being the general punishment imposed for offences against chiefs."[183] Among many other peoples theft or robbery committed on the property of a chief or king is treated with exceptional severity.[184] Sometimes difference in religion affects the criminality of the thief. According to modern Buddhism, "to take that which belongs to a sceptic is an inferior crime, and the guilt rises in magnitude in proportion to the merit of the individual upon whom the theft is perpetrated. To take that which belongs to the associated priesthood, or to a supreme Buddha, is the highest crime."[185] But the commonest and most important personal distinction influencing the moral valuation of theft and robbery is that between a tribesman or fellow-countryman and a stranger.

[Footnote 177: Munzinger, Ostafrikanische Studien, p. 243 sq.]

[Footnote 178: Scott Robertson, Káfirs of the Hindu-Kush, p. 440.]

[Footnote 179: Mommsen, Römisches Strafrecht, p. 751.]

[Footnote 180: Digesta, xlvii. 14. 1. pr., 3.]

[Footnote 181: Laws of Manu, viii. 337 sq.]

[Footnote 182: Crawfurd, op. cit. iii. 115 (Javanese). Desoignies, in Steinmetz, Rechtsverhältnisse, p. 281 (Msalala). Maclean, Compendium of Kafir Laws and Customs, p. 143.]

[Footnote 183: Brownlee, in Maclean, op. cit. p. 112.]

[Footnote 184: Ellis, Tour through Hawaii, p. 429 sq. Ellis, E[(w]e-speaking Peoples of the Slave Coast, p. 225 (Dahomans). Decle, Three Years in Savage Africa, p. 73. Post, Afrikanische Jurisprudenz, ii. 91. Laws of Æthelbirht, 4, 9 (Anglo-Saxons).]

[Footnote 185: Hardy, Manual of Budhism, p. 483.]

Among uncivilised races intra-tribal theft is carefully distinguished from extra-tribal theft. Whilst the former is forbidden, the latter is commonly allowed, and robbery committed on a stranger is an object of praise.[186]

[Footnote 186: Cf. Tylor, 'Primitive Society,' in Contemporary Review, xxi. 715 sq.; Anthropology, p. 413 sq.]

The Tehuelches of Patagonia, "although honest enough as regards each other, will, nevertheless, not scruple to steal from any one not belonging to their party."[187] The Abipones, who never took anything from their own countrymen, "used to rob and murder the Spaniards whilst they thought them their enemies."[188] Among the Mbayás the law, Thou shalt not steal, "applies only to tribesmen and {21} allies, not to strangers and enemies."[189] The high standard of honesty which prevailed among the North American Indians did not refer to foreigners, especially white men, whom they thought it no shame to rob or cheat.[190] "A theft from an individual of another band," says Colonel Dodge, "is no crime. A theft from one of the same band is the greatest of all crimes."[191] Among the Californian Indians, for instance, who are proverbially honest in their own neighbourhood, "a stranger in the gates who seems to be friendless may lose the very blankets off him in the night."[192] Among the Ahts thieving "is a common vice where the property of other tribes, or white men, is concerned."[193] Of the Dacotahs we read that, though the men think it undignified for them to steal even from white people, "they send their wives thus unlawfully to procure what they want."[194] Of the Greenlanders the old missionary Egede writes:--"If they can lay hands upon any thing belonging to us foreigners, they make no great scruple of conscience about it. But, as we now have lived some time in the country amongst them, and are look'd upon as true inhabitants of the land, they at last have forborne to molest us any more that way."[195] Another early authority states, "If they can purloin or even forcibly seize the property of a foreigner, it is a feather in their cap";[196] and, according to Dr. Nansen, it is still held by the Greenlanders "to be far less objectionable to rob Europeans than their own fellow-countrymen."[197] Many travellers have complained of the pilfering tendencies of Eskimo tribes with whom they have come into contact.[198] Richardson believes that, in the opinion of an Eskimo, "to steal boldly and adroitly from a stranger is an act of heroism."[199] Of the Eskimo about Behring Strait Mr. Nelson writes:--"Stealing from people of the same village or tribe is regarded as wrong. . . . To steal from a stranger or from people of another tribe is not considered wrong so long as it does not bring trouble on the community."[200]

[Footnote 187: Musters, op. cit. p. 195.]

[Footnote 188: Dobrizhoffer, op. cit. ii. 148.]

[Footnote 189: Tylor, in Contemporary Review, xxi. 716.]

[Footnote 190: Ibid. p. 716.]

[Footnote 191: Dodge, op. cit. p. 79.]

[Footnote 192: Powers, Tribes of California, p. 410 sq.]

[Footnote 193: Sproat, op. cit. p. 159. Cf. Macfie, Vancouver Island and British Columbia, p. 468.]

[Footnote 194: Eastman, Dacotah, p. xvii.]

[Footnote 195: Egede, op. cit. p. 124 sq.]

[Footnote 196: Cranz, op. cit. i. 175. See also Dalager, op. cit. p. 69.]

[Footnote 197: Nansen, First Crossing of Greenland, ii. 335 sq. Cf. Idem, Eskimo Life, p. 159 sq.]

[Footnote 198: Murdoch, 'Ethnological Results of the Point Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 41. Seemann, Voyage of "Herald," ii. 65; Armstrong, Discovery of the North-West Passage, p. 196 (Western Eskimo).]

[Footnote 199: Richardson, Arctic Searching Expedition, i. 352.]

[Footnote 200: Nelson, in Ann. Rep. Bur. Ethn. xviii. 293.]

{22} The Chukchi[201] and Koriaks[202] consider theft reputable or glorious if committed on a stranger, though criminal if committed in their own communities. The hill people of the Central Provinces of India, whilst observant of the rights of property among themselves, do not scruple to plunder those to whom they are under no obligation of fidelity.[203] The Bataks of Sumatra, who hardly ever steal among themselves, are expert at pilfering from strangers when not restrained by the laws of hospitality, and think it no moral offence to do so.[204] Other tribes in the Malay Archipelago likewise hold it allowable to plunder the same stranger or traveller who, when forlorn and destitute, would find a hospitable reception among them.[205] "The strict honesty," says Mr. Melville, "which the inhabitants of nearly all the Polynesian Islands manifest towards each other is in striking contrast with the thieving propensities some of them evince in their intercourse with foreigners. It would almost seem that, according to their peculiar code of morals, the pilfering of a hatchet or a wrought nail from a European is looked upon as a praiseworthy action. Or rather, it may be presumed, that, bearing in mind the wholesale forays made upon them by their nautical visitors, they consider the property of the latter as a fair object of reprisal."[206] In Fiji theft is regarded as no offence at all when practised on a foreigner.[207] The Savage Islanders consider theft from a tribesman a vice, but theft from a member of another tribe a virtue.[208] Of the Sandwich Islanders, again, we are told that they stole from rich strangers on board well loaded ships, whereas Europeans settled among them left their doors and shops unlocked without apprehension.[209] Speaking of the honesty of the Herbert River natives, Northern Queensland, Mr. Lumholtz adds:--"It is, of course, solely among members of the same tribe that there is so great a difference between mine and thine; strange tribes look upon each other as wild beasts."[210] The aborigines of West Australia "would not consider the act of pillaging base when practised on another people, or carried on beyond the limits of their own tribe."[211]

[Footnote 201: Georgi, op. cit. iii. 183.]

[Footnote 202: Ibid. iii. 170. Krasheninnikoff, op. cit. p. 232.]

[Footnote 203: Hislop, op. cit. p. 1.]

[Footnote 204: Marsden, op. cit. p. 389.]

[Footnote 205: Crawfurd, op. cit. i. 72.]

[Footnote 206: Melville, Typee, p. 295, n. 1. See also Williams, Missionary Enterprises, p. 530 (Samoans); Hale, op. cit. p. 73 (Micronesians).]

[Footnote 207: Williams and Calvert, op. cit. p. 110.]

[Footnote 208: Thomson, Savage Island, p. 94.]

[Footnote 209: von Kotzebue, op. cit. iii. 255.]

[Footnote 210: Lumholtz, Among Cannibals, p. 148.]

[Footnote 211: Chauncy, in Brough Smyth, op. cit. ii. 278 sq.]

Among the For tribe of Central Africa "it is not considered {23} right to rob strangers, but the chiefs wink at this offence, and the stranger runs but a poor chance of obtaining justice."[212] Of the Mandingoes Caillié observes that, while they do not steal from each other, "their probity with respect to others is very equivocal and in particular towards strangers, who would be very imprudent to shew them any thing that might tempt their cupidity."[213] When an Eastern Central African is plundered by a companion, he may be heard exclaiming, "If you had stolen from a white man, then I could have understood it, but to steal from a black man----."[214] Among the Masai the warriors and old men have a profound contempt for a thief, but "cattle-raiding from neighbouring tribes they do not consider stealing."[215] The Wafiomi[216] and Shilluk[217] regard theft or robbery committed on a stranger as a praiseworthy action, though they never or rarely practise it on members of their own people. The Barea and Kunáma[218] and the inhabitants of Saraë[219] consider it honourable for a man to rob an enemy of his tribe. The Kabyles of Djurdjura, who demand strict mutual honesty from members of the same village, see nothing wrong in stealing from a stranger.[220] Among the Bedouins "travellers passing without proper escort from or introduction to the tribes, may expect to lose their beasts, goods, clothes, and all they possess. There is no kind of shame attached to such acts of rapine. . . . By desert law, the act of passing through the desert entails forfeiture of goods to whoever can seize them."[221] Indeed, the Arab is proud of robbing his enemies, and of bringing away by stealth what he could not have taken by open force.[222] The Ossetes "distinguent . . . le vol commis au préjudice d'une personne étrangère à la famille, et le vol commis au préjudice d'un parent. Le premier, à proprement parler, n'est pas un acte criminel; le second, au contraire, est tenu pour un délit."[223]

[Footnote 212: Felkin, 'Notes on the For Tribe of Central Africa,' in Proceed. Roy. Soc. Edinburgh, xiii. 234.]

[Footnote 213: Caillié, op. cit. i. 353. Cf. Mungo Park, op. cit. p. 239 sq.]

[Footnote 214: Macdonald, Africana, i. 182.]

[Footnote 215: Hinde, op. cit. p. 104. Cf. Johnston, Kilima-njaro Expedition, p. 419.]

[Footnote 216: Baumann, Durch Massailand, p. 179.]

[Footnote 217: Petherick, Travels in Central Africa, ii. 3. Beltrame, Il Fiume Bianco, p. 83.]

[Footnote 218: Munzinger, Ostafrikanische Studien, p. 531.]

[Footnote 219: Ibid. p. 386.]

[Footnote 220: Kobelt, _Reiseerinnerungen aus Algerien und Tunis_, p. 223.]

[Footnote 221: Blunt, op. cit. ii. 204 sq.]

[Footnote 222: Burckhardt, Bedouins and Wahábys, p. 90.]

[Footnote 223: Kovalewsky, Coutume contemporaine, p. 343.]

Similar views prevailed among the ancient Teutons. "Robberies," says Caesar, "which are committed beyond {24} the boundaries of each state bear no infamy, and they avow that these are committed for the purpose of disciplining their youth and of preventing sloth."[224] The same was the case with the Highlanders of Scotland until they were brought into subjection after the rebellion of 1745.[225] "Regarding every Lowlander as an alien, and his cattle as fair spoil of war," says Major-General Stewart, "they considered no law for his protection as binding. . . . Yet, except against the Lowlanders or a hostile clan, these freebooters maintained, in general, the strictest honesty towards one another, and inspired confidence in their integrity. . . . In the interior of their own society all property was safe, without the usual security of bolts, bars, and locks."[226] In the Commentary to the Irish Senchus Mór it is stated that, whilst an ordinary thief loses his full honour-price at once, committing theft in another territory deprives a person of only half his honour-price, until it is committed the third time.[227] Throughout the Middle Ages all Europe seems to have tacitly agreed that foreigners were created for the purpose of being robbed.[228] In the thirteenth century there were still several places in France in which a stranger who fixed his residence for a year and a day became the serf of the lord of the manor.[229] In England, till upwards of two centuries after the Conquest, foreign merchants were considered only as sojourners coming to a fair or market, and were obliged to employ their landlords as brokers to buy and sell their commodities; and one stranger was often arrested for the debt, or punished for the misdemeanour, of another.[230] In a later age the old habit of oppression was still so strong that, when the State suddenly wanted a sum of money, it seemed quite natural that foreigners should be called upon to {25} provide a part of it.[231] The custom of seizing the goods of persons who had been shipwrecked, and of confiscating them as the property of the lord on whose manor they were thrown, seems to have been universal;[232] and in some European countries the laws even permitted the inhabitants of maritime provinces to reduce to servitude people who were shipwrecked on their coast.[233] The sea laws of Oléron, which probably date from the twelfth century, tell us that in many places shipwrecked sailors meet with people more inhuman, barbarous, and cruel than mad dogs, who slaughter those unhappy mariners in order to obtain possession of their money, clothes, and other property.[234] In the latter part of the Middle Ages attempts were incessantly made by sovereigns and councils to abolish this ancient right, so far as Christian sailors were concerned,[235] whereas the robbing of shipwrecked infidels was not prohibited.[236] But for a long time these endeavours were far from being successful;[237] and it was even argued that, as shipwrecks were punishments sent by God, it was impious to be merciful to the victims.[238]

[Footnote 224: Caesar, De bello Gallico, vi. 23.]

[Footnote 225: Tylor, in Contemporary Review, xxi. 716.]

[Footnote 226: Stewart, Sketches of the Character, &c., of the Highlanders of Scotland, p. 42 sq.]

[Footnote 227: Ancient Laws of Ireland, i. 57.]

[Footnote 228: Cf. Marshall, International Vanities, p. 285.]

[Footnote 229: Beaumanoir, Les coutumes du Beauvoisis, xlv. 19, vol. ii. p. 226.]

[Footnote 230: Chitty, Treatise on the Laws of Commerce and Manufactures, i. 131 Cf. Cibrario, Della economia politica del medio eve, i. 192.]

[Footnote 231: See Marshall, International Vanities, p. 291 sq.]

[Footnote 232: Du Cange, Glossarium ad scriptores mediæ et infimæ Latinitatis, iv. 22 sq. Robertson, History of the Reign of Charles V. i. 395.]

[Footnote 233: Du Cange, op. cit. iv. 23 sq. Cleffelius, Antiquitates Germanorum potissimum septentrionalium, x. 4, p. 362. Dreyer, Specimen juris publici Lubecensis, p. cxcii. Potgiesser, Commentarii juris Germanici de statu servorum, i. i. 17, p. 18 sq.]

[Footnote 234: Ancient Sea-Laws of Oleron, art. 30, p. 11.]

[Footnote 235: Du Cange, op. cit. iv. 24 sqq. Pardessus, Collection de lois maritimes, ii. p. cxv. sqq.; iii. p. clxxix. von Eicken, Geschichte und System der mittelalterlichen Weltanschauung, p. 569 sqq. Constitutiones Neapolitanæ sive Siculæ, i. 28. Concilium Romanum IV. A.D. 1078 (Labbe-Mansi, Sacrorum Conciliorum collectio, xx. 505 sq.).]

[Footnote 236: Laurent, Études sur l'histoire de l'humanité, vii. 323, 413 n. 3. von Eicken, op. cit. p. 570.]

[Footnote 237: Pardessus, op. cit. ii. p. cxv. Laurent, op. cit. vii. 314. Marshall, International Vanities, pp. 287, 295.]

[Footnote 238: von Eicken, op. cit. p. 570 sq.]

The readiness with which wars are waged, and the destruction of property held legitimate in warfare, are other instances of the little regard felt for the proprietary rights of foreigners. Grotius maintained that "such ravage is tolerable as in a short time reduces the enemy to seek peace";[239] and in the practice of his time devastation was {26} constantly used independently of any immediate military advantage accruing from it.[240] In the eighteenth century the alliance of devastation with strategical objects became more close, but it was still regarded as an independent means of attack by Wolff,[241] Vattel,[242] and others;[243] and even at the beginning of the nineteenth century instances of devastation of a not necessary kind occasionally occurred.[244] In later days opinion has decisively laid down that the measure of permissible devastation is to be found in the strict necessities of war.[245] Yet there is an exception to this rule: during the siege of a fortified town custom still permits the houses of the town itself to be bombarded, with a view to inducing the commandant to surrender on account of the misery suffered by the inhabitants.[246] Under the old customs of war a belligerent possessed a right to seize and appropriate all property belonging to a hostile state or its subjects, of whatever kind it might be and in any place where acts of war were permissible.[247] Subsequently this extreme right has been tempered by usage, and in a few directions it has disappeared.[248] Thus the principle proclaimed, but not always acted on, by the Revolutionary Government of France, that private property should be respected on a hostile as on a friendly soil,[249] is favoured by present opinion and usage,[250] and pillage by the soldiers of an invading army is expressly forbidden.[251] At the same time there is unfortunately no {27} doubt that in all wars pillage does continue with impunity;[252] and we sometimes hear of a captured town being sacked, and the houses of the inhabitants being plundered, on the plea that it was impossible for the general to restrain his soldiers.[253] Moreover, private property taken from the enemy on the field of battle, in the operations of a siege, or in the storming of a place which refuses to capitulate, is usually regarded as legitimate spoils of war.[254] Military contributions and requisitions are levied upon the inhabitants of the hostile territory.[255] And whilst the progress of civilisation has slowly tended to soften the extreme severity of the operations of war by land, it still remains unrelaxed in respect to maritime warfare, the private property of the enemy taken at sea or afloat in port being indiscriminately liable to capture and confiscation. In justification of this it is said that the object of maritime wars is the destruction of the enemy's commerce and navigation, and that this object can only be attained by the seizure of private property.[256]

[Footnote 239: Grotius, De jure belli et pacis, iii. 12. 1. 3.]

[Footnote 240: Hall, Treatise on International Law, p. 533.]

[Footnote 241: Wolff, Jus Gentium, §823, p. 300.]

[Footnote 242: Vattel, Le droit des gens, iii. 9. 167, vol. ii. 76 sq.]

[Footnote 243: Hall, op. cit. p. 533 sq.]

[Footnote 244: Ibid. p. 534 sq.]

[Footnote 245: Ibid. p. 535. Bluntschli, Le droit international, §663, p. 385. Heffter, Das europäische Völkerrecht, §125, p. 262. Wheaton, Elements of International Law, p. 473. Conférence de Bruxelles, art. 13, g. Conférence internationale de la paix, La Haye 1899, 'Règlement concernant les lois et coutumes de la guerre sur terre,' art. 23 g, pt. i. 245.]

[Footnote 246: Hall, op. cit. p. 536 sq.]

[Footnote 247: Grotius, op. cit. iii. 6. 2. Hall, op. cit. pp. 417, 438.]

[Footnote 248: Hall, op. cit. p. 419 sqq.]

[Footnote 249: Bernard, 'Growth of Laws and Usages of War,' in Oxford Essays, 1856, p. 109.]

[Footnote 250: Conférence de Bruxelles, art. 38. Instructions for the Government of Armies of the United States in the Field, art. 37. Conférence de La Haye, 'Règlement concernant la guerre sur terre,' art. 46, pt. i. 248. Hall, op. cit. p. 441. Geffken, in Heffter, op. cit. §140, p. 297, n. 5.]

[Footnote 251: Conférence de Bruxelles, art. 39. Instructions of the United States, art. 44. Conférence de La Haye, 'Règlement concernant la guerre sur terre,' art. 28, 47, pt. i. 246, 248.]

[Footnote 252: Maine, International Law, p. 199. Halleck, International Law, ii. 73, note.]

[Footnote 253: Halleck, op. cit. ii. 32. If we may believe Garcilasso de la Vega (First Part of the Royal Commentaries of the Yncas, i. 151) the officers of the Incas in ancient Peru were more humane, never allowing the pillage of a captured town.]

[Footnote 254: Halleck, op. cit. ii. 73 sq. Wheaton, op. cit. p. 467.]

[Footnote 255: Wheaton, op. cit. p. 467. Hall, op. cit. p. 427 sqq. Conférence de La Haye, 'Règlement concernant la guerre sur terre,' art. 49, 52, pt. i. 248.]

[Footnote 256: Wheaton, op. cit. p. 483. Twiss, Law of Nations, p. 141. Heffter, op. cit. §137, p. 287. Hall, op. cit. p. 443 sqq.]

Not only does the respect in which the right of property is held vary according to the status of the owner, but in many instances certain persons are deemed incapable of possessing such a right.

The father's power over his children may imply that the latter, even when grown-up, have no property of their own, the father having a right to the disposal of their earnings. This is the case among some African peoples,[257] and the {28} Kandhs of India.[258] In the Laws of Manu, the mythical legislator of the Hindus, it is said, "A wife, a son, and a slave, these three are declared to have no property; the wealth they earn is acquired for him to whom they belong."[259] But according to the standard commentators this only means that the persons mentioned are unable to dispose of their property independently;[260] and it is expressly stipulated that property acquired by learning belongs exclusively to the person to whom it was given, and so also the gift of a friend.[261] In Rome the peculium, or separate property, allowed to a son was originally subject to the authority of the house-father, should he choose to exercise such authority; and it was only by very late legislation that sons were secured the independent holding of their peculium.[262] Even now it is the law in many European countries that, during the minority of a child, the father or mother has the usufruct of its property, with the exception of certain kinds of property expressly specified.[263]

[Footnote 257: Sarbah, Fanti Customary Laws, p. 51. Kraft, in Steinmetz, Rechtsverhältnisse, p. 285 (Wapokomo). Munzinger, Ueber die Sitten und das Recht der Bogos, p. 36. Among the Barea and Kunáma a man's earnings belong to his father until he builds a house for himself, that is, until he marries (Munzinger, Ostafrikanische Studien, p. 477). Among the Basutos parents can deprive their sons of their earnings at pleasure (Endemann, 'Mittheilungen über die Sotho-Neger,' in Zeitschr. f. Ethnol. vi. 39).]

[Footnote 258: Macpherson, Memorials of Service in India, p. 62.]

[Footnote 259: Laws of Manu, viii. 416. See also Nárada, v. 41.]

[Footnote 260: Buehler, in his translation of the Laws of Manu, Sacred Books of the East, xxv. 326, n. 416.]

[Footnote 261: Laws of Manu, ix. 206.]

[Footnote 262: Hunter, Exposition of Roman Law, p. 292 sqq. Maine, Dissertations on Early Law and Custom, p. 252. Girard, Manuel élémentaire de droit romain, pp. 135, 138 sqq.]

[Footnote 263: Bridel, Le droit des femmes et le mariage, p. 156.]

Among some uncivilised peoples women are said to be incapable of holding property;[264] but this is certainly not the rule among savage tribes, not even among the very lowest. When Mr. Snow wished to buy a canoe from some Fuegians, his request was refused on the ground that the object in question belonged to an old woman, who would not part with it;[265] and among the blacks of Australia Mr. Curr has often heard husbands ask permission of their wives to take something out of their bags.[266] There are instances in which the property owned by a {29} woman is by marriage transferred to her husband;[267] but more commonly, it seems, the wife remains mistress of her own property during the existence of the marriage relation.[268] Among many savages considerable proprietary privileges are granted to the female sex. We have seen that the household goods are frequently regarded as the special property of the wife.[269] Among the Navahos of New Mexico everything, except horses and cattle, practically belongs to the married women.[270] Among the Kafirs of Natal, "when a man takes his first wife, all the cows he possesses are regarded as her property," and the husband can, theoretically, neither sell nor otherwise dispose of them without his wife's consent.[271] The Mandans of North America have a custom that all the horses which a young man steals or captures in war belong to his sisters.[272] Among the Koch of India, we are told, "the men are so gallant as to have made over all property to the women."[273] As regards woman's right of ownership, nations of a higher culture compare unfavourably with many savages. In Japan the husband formerly had full rights over the property of his wife.[274] We have already noticed the disabilities in point of ownership to which women were once subject in India; but the development of str[=i]dhana, or peculium of the female members of a family, shows that they gradually became less dependent on their husbands in {30} matters relating to property.[275] Among the ancient Hebrews women appear to have been in every respect regarded as minors so far as proprietary rights were concerned.[276] In Rome a marriage with conventio in manum, which was the regular form of marriage in early times, gave the husband a right to all the property which the wife had when she married, and entitled him to all she might acquire afterwards whether by gift or by her own labour.[277] Later on marriage without manus became the ordinary Roman marriage, and this, together with the downfall of the ancient patria potestas, led to the result that finally all the wife's property was practically under her own control, save when a part of it had been converted by settlement into a fund for contributing to the expenses of the conjugal household.[278] But, as we have noticed in another place, the new religion was not favourable to the remarkable liberty granted to married women during the pagan Empire;[279] and the combined influence of Teutonic custom and Canon law led to those proprietary incapacities of wives which up to quite recent times have disfigured the lawbooks of Christian Europe.[280] In England, before 1857, even a man who had abandoned his wife and left her unaided to support his family might at any time return to appropriate her earnings and to sell everything she had acquired, and he might again and again desert her, and again and again repeat the process of spoliation. In 1870 a law was passed securing to women the legal control of their own earnings, but all other female property, with some insignificant exceptions, was left absolutely unprotected. And it was not until the Married Women's {31} Property Act of 1882 that a full right to their own property was given to English wives.[281]

[Footnote 264: Nassau, Fetichism in West Africa, p. 13 (tribes of the Cameroons). Marshall, A Phrenologist amongst the Todas, p. 206. Waitz, Anthropologie der Naturvölker, iii. 129 (some Indian tribes of North America).]

[Footnote 265: Snow, 'Wild Tribes of Tierra del Fuego,' in Jour. Ethn. Soc. London, N.S. i. 264.]

[Footnote 266: Curr, The Australian Race, i. 66.]

[Footnote 267: Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. ii. 142 (Karens). Sumner, in Jour. Anthr. Inst. xxxi. 94 (Jakuts). Post, Studien zur Entwicklungsgeschichte des Familienrechts, p. 291.]

[Footnote 268: von den Steinen, _Unter den Naturvölkern Zentral-Brasiliens_, p. 330 (Bakaïri). Morgan, _League of the Iroquois_, p. 326. Lala, Philippine Islands, p. 91. Hagen, Unter den Papua's, pp. 226, 243 (Papuans of Bogadjim, Kaiser Wilhelm Land). Kubary, 'Die Palau-Inseln in der Südsee,' in Jour. des Museum Godeffroy, iv. 54. Ratzel, _History of Mankind_, i. 279 (various South Sea Islanders). Kingsley, _West African Studies_, p. 373. Bosman, op. cit. p. 172 (Gold Coast natives). Ellis, Tshi-speaking Peoples of the Gold Coast, p. 298. Sarbah, Fanti Customary Laws, p. 5. Lang, in Steinmetz, Rechtsverhältnisse, p. 223 (Washambala). Burton, _Lake Regions of Central Africa_, ii. 25 (Wanyamwezi). Post, _Entwicklungsgeschichte des Familienrechts_, p. 292 sqq.]

[Footnote 269: Supra, i. 637 sqq.]

[Footnote 270: Mindeleff, 'Navaho Houses,' in _Ann. Rep. Bur. Ethn._ xvii. 485.]

[Footnote 271: Shooter, Kafirs of Natal, p. 84.]

[Footnote 272: Wied-Neuwied, Travels in the Interior of North America, p. 350.]

[Footnote 273: Buchanan, quoted by Hodgson, _Miscellaneous Essays_, i. 110.]

[Footnote 274: Rein, Japan, p. 424.]

[Footnote 275: Jolly, 'Recht und Sitte,' in Buehler, Grundriss der indo-arischen Philologie, ii. 78, 79, 87 sqq. Kohler, 'Indisches Ehe- und Familienrecht,' in Zeitschr. f. vergl. Rechtswiss. iii. 424 sqq.]

[Footnote 276: Benzinger, 'Law and Justice,' in Cheyne and Black, Encyclopædia Biblica, iii. 2724.]

[Footnote 277: Hunter, Roman Law, p. 295. Maine, Early History of Institutions, p. 312. Bryce, Studies in History and Jurisprudence, ii. 387. Girard, op. cit. p. 163.]

[Footnote 278: Hunter, Roman Law, p. 295 sqq. Maine, _Early History of Institutions_, p. 317 sqq. Friedlaender, Darstellungen aus der Sittengeschichte Roms, i. 252. Girard, op. cit. p. 164.]

[Footnote 279: Supra, i. 653 sq.]

[Footnote 280: Maine, Ancient Law, p. 157 sqq.]

[Footnote 281: Lecky, Democracy and Liberty, ii. 536 sq. Cleveland, Woman under the English Law, p. 279 sqq. For the laws of other European countries see Bridel, op. cit. p. 61 sqq., and for the history of the subject see Gide. Étude sur la condition de la femme, passim.]

A third class of persons who in many cases are considered incapable of holding property of their own is the slave class.[282] It may indeed be asked whether a slave ever has the right of ownership in the full sense of the term. Yet slaves are frequently said to be owners of property; and though this "ownership" may have originally been a mere privilege granted to them by their masters and subject to withdrawal at the discretion of the latter,[283] it is undoubtedly in several cases a genuine right guaranteed by custom. Among the Káfirs of the Hindu-Kush, if the slaves work for others, they do not hand the wages over to their masters, but keep the pay themselves.[284] In Africa, in particular, it is a common thing for slaves to have private property;[285] in Southern Guinea there are slaves who are wealthier than their masters.[286] In some African countries, as we have seen, the slave is obliged to work for his master only on certain days of the week or a certain number of hours, and has the rest of his time free.[287] So also in ancient Mexico the slave was allowed a certain amount of time to labour for his own advantage.[288] A Babylonian slave had his peculium, of which, at least under normal circumstances, he was in safe possession.[289] In Rome anything {32} a slave acquired was legally his master's; but he was in practice permitted to enjoy and accumulate chance earnings or savings or a share of what he produced, which was regarded not as his property in the full sense of the term, but as his peculium.[290] In the Middle Ages slaves, and in many instances serfs also, were, strictly speaking, destitute of proprietary rights.[291] In England it was held that whatever was acquired by a villein was acquired by his lord. At the same time his chattels did not eo ipso lapse into the lord's possession, but only if the latter actually seized them; and if he for some reason or other refrained from doing so the villein was practically their owner in respect of all persons but his lord.[292] In the British and French colonies and the American Slave States the negro slaves had no legal rights of property in things real or personal.[293] According to the laws of Georgia, masters must not permit their slaves to labour for their own benefit, at a penalty of thirty dollars for every such weekly offence;[294] and in other States they were expressly forbidden to suffer their slaves to hire out themselves.[295] In some places, however, negro slaves might hold a peculium. In Arkansas a statute was passed granting masters the right of allowing their slaves to do work on their own behalf on Sundays;[296] and in the British colonies Sunday was made a marketing day for the slaves so as to encourage them to labour for themselves.[297] In the Civil Code of Louisiana {33} it is said that the slave "possesses nothing of his own, except his peculium, that is to say, the sum of money, or movable estate, which his master chooses he should possess."[298] The Spanish and Portuguese slave laws were more humane. According to them the money and effects which a slave acquired by his labour at times set apart for his own use or by any other means, were legally his own and could not be seized by the master.[299]

[Footnote 282: Post, Grundriss der ethnol. Jurisprudenz, i. 370, 381. Holmberg, in Acta Soc. Scientiarum Fennicæ, iv. 330 sq. (Thlinkets). Kohler, 'Recht der Marschallinsulaner,' in Zeitschr. f. vergl. Rechtswiss. xiv. 428 sq. Volkens, op. cit. p. 249 (Wadshagga). Lang, in Steinmetz, Rechtsverhältnisse, p. 241 (Washambala).]

[Footnote 283: Nicole, in Steinmetz, Rechtsverhältnisse, p. 119 (Diakité-Sarracolese). Senfft, ibid. p. 442 (Marshall Islanders).]

[Footnote 284: Scott Robertson, op. cit. p. 100.]

[Footnote 285: Kingsley, West African Studies, p. 366. Ellis, E[(w]e-speaking Peoples of the Slave Coast, p. 219. Steinmetz, Rechtsverhältnisse, p. 43 (Banaka and Bapuku). Tellier, ibid. pp. 169, 171 (Kreis Kita). Baskerville, ibid. p. 193 (Waganda). Beverley, ibid. p. 213 (Wagogo). Dale, in Jour. Anthr. Inst. xxv. 230 (Wabondei). Munzinger, Die Sitten und das Recht der Bogos, p. 43. Idem, Ostafrikanische Studien, p. 309 sq. (Beni Amer).]

[Footnote 286: Wilson, Western Africa, p. 271.]

[Footnote 287: Supra, i. 677.]

[Footnote 288: Bancroft, op. cit. ii. 221.]

[Footnote 289: Kohler and Peiser, _Aus dem babylonischen Rechtsleben_, i. i. See also supra, i. 684.]

[Footnote 290: Digesta, xv. 1. 39. Wallon, Histoire de l'esclavage dans l'antiquité, ii. 181 sq. Ingrain, History of Slavery, p. 44. Hunter, Roman Law, pp. 157, 290 sq. Girard, op. cit. p. 95.]

[Footnote 291: Supra, i. 697. Guérard, Cartulaire de l'Abbaye de Saint-Père de Chartres, i. p. xlvii.]

[Footnote 292: Vinogradoff, Villainage in England, p.67 sq. Pollock and Maitland, op. cit. i. 416, 419.]

[Footnote 293: Stephen, _Slavery of the British West India Colonies_, i. 58. Code Noir, Édit du mois de Mars 1685, art. 28, p. 42 sq.; Édit donné au mois de Mars 1724, art. 22, p. 295 sq. Stroud, _Sketch of the Laws relating to Slavery in the several States of the United States of America_, p. 74. Goodell, American Slave Code, p. 89 sqq.]

[Footnote 294: Prince, Digest of the Laws of Georgia, p. 788.]

[Footnote 295: Caruthers and Nicholson, _Compilation of the Statutes of Tennessee_, 675. Alden and van Hoesen, _Digest of the Laws of Mississippi_, p. 751. Morehead and Brown, _Digest of the Statute Laws of Kentucky_, ii. 1480 sq.]

[Footnote 296: Ball and Roane, Revised Statutes of Arkansas, xliv. 7. 2. 8, p. 276 sq.]

[Footnote 297: Edwards, History of the British West Indies, ii. 181.]

[Footnote 298: Morgan, Civil Code of Louisiana, art. 175.]

[Footnote 299: Stephen, op. cit. i. 60. Couty, L'esclavage au Brésil, p. 9.]

Among many peoples, finally, we find the theory that nobody but the chief or king has proprietary rights, and that it is only by his sufferance that his subjects hold their possessions.[300] The soil, in particular, is regarded as his.[301] But even autocrats are tied by custom,[302] and in practice the right of ownership is not denied to their subjects.

[Footnote 300: Butler, Travels in Assam, p. 94 (Kukis). Beecham, Ashantee, p. 96. Spencer, Descriptive Sociology, African Races, p. 12 (Abyssinians). Decle, op. cit. p. 70 sqq. (Barotse). Kidd, The Essential Kafir, p. 353. Ellis, History of Madagascar, i. 342. Post, Afrikanische Jurisprudenz, ii. 171. Percy Smith, 'Uea, Western Pacific,' in Jour. Polynesian Soc. i. 112. Tregear, 'Easter Island,' ibid. i. 99. In Samoa it is a maxim that a chief cannot steal; he is merely considered to "take" the thing which he covets (Pritchard, Polynesian Reminiscences, p. 104). In Uea, when a chief enters a house, he enjoys the right to take all in it that he pleases (Percy Smith, in Jour. Polynesian Soc. i. 113). Among the Kafirs no case can be brought against a chief for theft, except if it be committed on the property of a person belonging to another tribe; and even the children of chiefs are permitted to steal from their own people (Brownlee, in Maclean, Compendium of Kafir Laws and Customs, p. 112 sq. Trollope, South Africa, ii. 303. Holden, Past and Future of the Kaffir Races, p. 338).]

[Footnote 301: Waitz, op. cit. iii. 128 (Indian tribes of North America); v. pt. i. 153 (Malays). Ellis, Polynesian Researches, iii. 115 (Sandwich Islanders). Bory de St. Vincent, _Essais sur les Isles Fortunées_, p. 64 (Guanches). Nicole, in Steinmetz, Rechtsverhältnisse, p. 136 (Diakité-Sarracolese). Baskerville, ibid. p. 201 (Waganda). Beverley, ibid. p. 216 (Wagogo). Lang, ibid. p. 262 (Washambala). Rautanen, ibid. p. 343 (Ondonga). Stuhlmann, Mit Emin Pasha ins Herz von Africa, p. 75 (Wanyamwezi). Post, Afrikanische Jurisprudenz, ii. 170 sq.; Ratzel, op. cit. i. 126; de Laveleye-Bücher, Das Ureigenthum, p. 275 (various African peoples). Kohler, _Rechtsvergleichende Studien_, p. 235 (Kandian law). Giles, _Strange Stories from a Chinese Studio_, ii. 369, n. 21 (Chinese).]

[Footnote 302: Supra, i. 162.]

In the next chapter we shall try to explain all these facts:--the existence of proprietary rights, the refusal of such rights to certain classes of persons, the different {34} degrees of condemnation attending theft under different circumstances. But before we can understand the psychological origin of the right of ownership and the regard in which it is held, it is necessary to examine the methods by which it is acquired, the external facts which give to certain individuals a right to the exclusive disposal of certain things.

XXIX. THE RIGHT OF PROPERTY (concluded)

ACCORDING to an old theory set forth by Roman jurists, and afterwards much emphasised by Grotius,[1] the original mode of acquisition is occupation, that is, a person's taking possession of that which at the moment belongs to nobody (res nullius), with the intention of keeping it as his property. That occupation very largely, though by no means exclusively, is at the bottom of the right of ownership seems obvious enough, and it is only by means of strained constructions that Locke and others have been able to trace the origin of this right to labour alone.[2] The principle of occupation is illustrated by innumerable facts from all quarters of the world--by the hunter's right to the game which he has killed or captured;[3] by the nomad's or settler's right to the previously unoccupied place where {36} he has pitched his tent or built his dwelling;[4] by the agriculturist's right to the land of which he has taken possession by cultivating the soil;[5] by a tribe's or community's right to the territory which it has occupied.[6] Among the Kandhs of India "the right of possession of land is simply founded in the case of tribes upon priority of appropriation, and in the case of individuals upon priority of culture."[7] Among the Herero, "notwithstanding the loose notions generally entertained by them as to meum and tuum, there is an understanding that he who arrives first at any given locality is the master of it as long as he chooses to remain there, and no one will intrude upon him without having previously asked and obtained his permission. The same," our authority adds, "is observed even with regard to strangers."[8] Again, among some of the Australian natives a man who had found a bees' nest and did not wish to rob it for some time, would mark the tree in some way or other, and "it was a crime to rob a nest thus indicated."[9] In Greenland anyone picking up pieces {37} of driftwood or goods lost at sea or on land was considered the rightful owner of them; and to make good his possession he had only to carry them up above high-water mark and put stones upon them, no matter where his homestead might be.[10] But the finder's right to the discovered article is not always restricted to objects which have no owner or the owner of which is unknown: in some instances his occupation of it makes it his property in all circumstances,[11] whilst in other cases he at any rate has a claim to part of its value.[12] Among the Hurons "every thing found, tho' it had been lost but a moment, belonged to the person that found it, provided the loser had not claimed it before."[13] The Kafirs "are not bound by their law to give up anything they may have found, which has been lost by some one else. The loser should have taken better care of his property, is their moral theory."[14] Among the Chippewyans any unsuccessful hunter passing by a trap where a deer is caught may take the animal, if only he leaves the head, skin, and saddle for the owner;[15] and among the Tunguses whoever finds a beast in another man's trap may take half the meat.[16] Among the Maoris boats or canoes which were cast adrift became the property of the captors. "Even a canoe . . . of friends and relatives upsetting off a village, and drifting on shore where a village was, became the property of the people of that village; although it might be that the people in the canoe had all got safely to land or were coming by special invitation to visit that very {38} village."[17] We have previously noticed the customary treatment of shipwrecked mariners in mediæval Europe. And another instance of occupation establishing a right of property in things which already have an owner is conquest or capture made in war. The Romans regarded spoils taken from an enemy as the most excellent kind of property.[18]

[Footnote 1: Grotius, De jure belli et pacis, ii. 3. 3.]

[Footnote 2: Locke, Treatises of Government, ii. 5. 27 sqq., p. 200 sqq. Thiers, De la propriété, p. 94 sqq. Hume remarks (Treatise of Human Nature, ii. 3 [Philosophical Works, ii. 276, n. 1]):--"There are several kinds of occupation, where we cannot be said to join our labour to the object we acquire; as when we possess a meadow by grazing our cattle upon it."]

[Footnote 3: Curr, Recollections of Squatting in Victoria, p. 265 (Bangerang tribe). Murdoch, 'Ethnol. Results of the Point Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 428 (Point Barrow Eskimo). Ahlqvist, 'Unter Wogulen und Ostjaken,' in _Acta Soc. Scientiarum Fennicæ_, xiv. 166 (Voguls). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Post, Afrikanische Jurisprudenz, ii. 162 sq. Andree, 'Ethnogr. Bemerkungen zu einigen Rechtsgebräuchen,' in Globus, xxxviii. 287. Among some Indian **tribes of North America it was customary for individuals to mark their arrows, in order that the stricken game might fall to the man by whose arrow it had been despatched (Powell, in Ann. Rep. Bur. Ethn. iii. p. lvii.).]

[Footnote 4: von Martius, _Von dem Rechtszustande unter den Ureinwohnern Brasiliens_, p. 34 (Brazilian aborigines). Dalager, Grønlandske Relationer, p. 15; Nansen, Eskimo Life, p. 109 (Greenlanders). Marsden, History of Sumatra, pp. 68, 244 (Rejangs). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kraft, ibid. p. 293 (Wapokomo). Decle, _Three Years in Savage Africa_, p. 487 (Wakamba). Robertson Smith, _Religion of the Semites_, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law).]

[Footnote 5: Thomson, Savage Island, p. 137. Polack, Manners and Customs of the New Zealanders, ii. 69; Thomson, Story of New Zealand, i. 97. Munzinger, Die Sitten und das Recht der Bogos, p. 69. Cruickshank, Eighteen Years on the Gold Coast, ii. 277. Leuschner, in Steinmetz, Rechtsverhältnisse, p. 24 (Bakwiri). Ibid. p. 53 (Banaka and Bapuku). Tellier, ibid. p. 178 (Kreis Kita). Dale, in Jour. Anthr. Inst. xxv. 230 (Wabondei). Laws of Manu, ix. 44. Wellhausen, Reste arabischen Heidentums, p. 108. Robertson Smith, Religion of the Semites, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law). Waitz, Anthropologie der Naturvölker, i. 440. Dargun, 'Ursprung und Entwicklungs-Geschichte des Eigenthums,' in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 342 sqq. See also infra, p. 39 sq.]

[Footnote 6: Thomson, Story of New Zealand, i. 96; Polack, op. cit. ii. 71 (Maoris), Mademba, in Steinmetz, Rechtsverhältnisse, p. 90 (natives of the Sansanding States).]

[Footnote 7: Macpherson, Memorials of Service in India, p. 62.]

[Footnote 8: Andersson, Lake Ngami, p. 115. See also Viehe, in Steinmetz, Rechtsverhältnisse, p. 310.

12: Merker, Die Masai, p. 204. Desoignies, in Steinmetz, Rechtsverhältnisse, p. 281 (Msalala). Post, Grundriss der ethnol. Jurisprudenz, ii. 605.]

[Footnote 13: Charlevoix, Voyage to North-America, ii. 26 sq.]

[Footnote 14: Leslie, Among the Zulus and Amatongas, p. 202.]

[Footnote 15: Schoolcraft, Archives of Aboriginal Knowledge, v. 177.]

[Footnote 16: Ratzel, History of Mankind, ii. 226.]

[Footnote 17: Colenso, Maori Races of New Zealand, p. 34. Polack, op. cit. p. 68 sq.]

[Footnote 18: "Maxima sua esse credebant quae ab hostibus cepissent" (quoted by Ahrens, Naturrecht, ii. 137).]

The occupation of a thing may take place in various ways. Hegel says that "taking possession is partly the simple bodily grasp, partly the forming and partly the marking or designating of the object."[19] But there are still other methods of occupation, in which the bodily contact with the object is involuntary, or in which there is no bodily contact at all. Among the Maoris a man acquired a peculiar right to land "by having been born on it (or, in their expressive language, 'where his navel-string was cut'), as his first blood (ever sacred in their eyes) had been shed there";[20] or, generally, "by having had his blood shed upon it"; or "by having had the body, or bones, of his deceased father, or mother, or uterine brother or sister, deposited or resting on it"; or "by having had a near relative killed, or roasted on it, or a portion of his body stuck up or thrown away upon it."[21] Among many peoples an animal belongs entirely or chiefly to the person who first wounded it, {39} however slightly,[22] or who first saw it,[23] even though it was killed by somebody else. Thus among the Greenlanders, if a seal or some other sea-animal escapes with the javelin sticking in it, and is afterwards killed, it belongs to him who threw the first dart;[24] if a bear is killed, it belongs to him who first discovered it;[25] and when a whale is taken, the very spectators have an equal right to it with the harpooners.[26]

[Footnote 19: Hegel, Grundlinien der Philosophie des Rechts, § 54, p. 54; English translation, p. 59.]

[Footnote 20: Of certain tribes of Western Victoria we are likewise told that, "should a child of another family have been born on the estate, it is looked upon as one of the family, and it has an equal right with them to a share of the land, if it has attained the age of six months at the death of the proprietor" (Dawson, Australian Aborigines, p. 7). The Rev. John Bulmer (quoted by Brough Smyth, Aborigines of Victoria, i. 146) testifies the prevalence of such a birth-right among the Murray tribes, and suspects it is common to most of the tribes of Australia:--"The fact that an aboriginal is born in a certain locality constitutes a right to that part, and it would be considered a breach of privilege for any one to hunt over it without his permission. Should another black have been born in the same place, he, with the former, would have a joint right to the land. Otherwise, no native seems to have made a claim to any particular portion of the territory of his tribe." Cf. Schurtz, Die Anfänge des Landbesitzes, in Zeitschr. f. Socialwissenschaft, iii. 357 sqq.]

[Footnote 21: Colenso, op. cit. p. 31. See also Polack, op. cit. ii. 82.]

[Footnote 22: Dalager, op. cit. p. 24 sq. (Greenlanders). Boas, 'Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582. Dall, Alaska, p. 394 (Aleuts). Ratzel, op. cit. Bourke, Snake-Dance of the Moquis, ii. 227 (Asiatic Hyperboreans). Campbell, Second Journey in the Interior of South Africa, ii. 212 (Bechuanas). Livingstone, Missionary Travels, p. 599 (natives of South Africa), von Heuglin, Reise nach Abessinien, p. 290 sq. (Woitos). Laws of Manu, ix. 44. Post, Afrikanische Jurisprudenz, ii. 163. Idem, Grundriss der ethnol. Jurisprudenz, ii. 707 sq. Andree, in Globus, xxxviii. 287 sq.]

[Footnote 23: Boas, 'Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582. Ratzel, op. cit. ii. 227 (Asiatic Hyperboreans). See also Semper, Die Palau-Inseln, p. 86.]

[Footnote 24: Dalager, op. cit. p. 24.]

[Footnote 25: Rink, Tales and Traditions of the Eskimo, p. 29.]

[Footnote 26: Dalager, op. cit. p. 25.]

Besides occupation, or the taking possession of a thing, the keeping possession of it may establish a right of ownership. That these principles, though closely connected with each other, are not identical is obvious from two groups of facts. First, a proprietary right which is based on occupation may disappear if the object has ceased to remain in the possession of the person who had appropriated it. The place occupied by a nomad is his only so long as he continues to stay there;[27] and among agricultural savages the cultivator frequently loses his right to the field when he makes no more use of it[28]--though, on the other hand, instances are not wanting in which cultivation gives proprietary {40} rights of a more lasting nature.[29] Loss of possession may, indeed, annul or weaken ownership gained by any method of acquisition. In the Hindu work Panchatantra it is said that the property in "tanks, wells, ponds, temples, and choultries" will no longer rest with persons who once have left them.[30] Among the natives of the Sansanding States the right to a house is lost by its being abandoned.[31] In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal.[32] So also the finder's title to the discovered article springs from the fact that the original owner's right has been relaxed by his losing the possession of it. Secondly, the retaining possession of an object for a certain length of time may make it the property of the possessor, even though the occupation of that object conferred on him no such right, nay though the acquisition of it was actually wrongful.[33] According to the Roman Law of the Twelve Tables, commodities which had been uninterruptedly possessed for a certain period--movables for a year, and land or houses for two years--became the property of the person possessing them.[34] This principle, known to the Romans as usucapio, has descended to modern jurisprudence under the name of "prescription." It also prevailed in India since ancient times. The older law-books laid down the rule that, if the owner of a thing is neither an idiot nor a minor and if his chattel is enjoyed {41} by another before his eyes during ten years and he says nothing, it is lost to him, and the adverse possessor shall retain it as his own property;[35] but it seems that later on the period of prescription was extended to thirty years or even more.[36] In this connection it should also be noticed that the division of labour, implying the use of certain articles, often confers proprietary rights to those articles upon the persons who make habitual use of them, as in the case of women becoming the owners of the household goods.[37]

[Footnote 27: Cf. Post, Afrikanische Jurisprudenz, ii. 167.]

[Footnote 28: Morgan, League of the Iroquois, p. 326. Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 366. Bourke, Snake-Dance of the Moquis, p. 261. Shooter, Kafirs of Natal, p. 16; Lichtenstein, Travels in Southern Africa, i. 271 (Kafirs). MacGregor, in Jour. African Soc. 1904, p. 474 (Yoruba). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 25. Lang, ibid. p. 264. (Washambala). Marx, ibid. p. 358 (Amahlubi). Sorge, ibid. p. 422 (Nissan Islanders). Waitz, op. cit. i. 440. Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 343 sq. de Laveleye-Bücher, Das Ureigenthum, ch. xiv. p. 270 sqq. Among the Rejangs of Sumatra a planter of fruit-trees or his descendants may claim the ground as long as any of the trees subsist, but when they disappear "the land reverts to the public" (Marsden, op. cit. p. 245).]

[Footnote 29: von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens_, p. 35 sq. (Brazilian aborigines). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kohler, 'Banturecht in Ostafrika,' in Zeitschr. f. vergl. Rechtswiss. xv. 48 (natives of Lindi). Trollope, op. cit. ii. 302 (Kafirs). Post, Afrikanische Jurisprudenz, ii. 169. Idem, Entwicklungsgeschichte des Familienrechts, p. 285 sq. Schurtz, in Zeitschrift für Socialwissenschaft, iii. 255. Among the Angami Nagas any member of a village "may choose to leave his fields untilled for one year and cannot be compelled to grow his crops during the next, but after that, if illness or idleness prevent him from overtaking the work, his village insists on the fields being let" (Prain, 'Angami Nagas,' in Revue coloniale internationale, v. 484).]

[Footnote 30: Panchatantram, iii. p. 15.]

[Footnote 31: Mademba, in Steinmetz, Rechtsverhältnisse, p. 91.]

[Footnote 32: Dalager, op. cit. p. 27.]

[Footnote 33: See Mill, Principles of Political Economy, i. 272; Thiers, op. cit. p. 108; Waitz-Gerland, op. cit. vi. 228 (Maoris).]

[Footnote 34: Hunter, Roman Law, p. 265 sqq. Maine, _Ancient Law_, p. 284. Girard, Manuel élémentaire de droit romain, p. 296 sqq. Puchta, Cursus der Institutionen, ii. 202 sqq.]

[Footnote 35: Gautama, xii. 39. Vasishtha, xvi. 16 sq. Laws of Manu, viii. 147 sq. See also Panchatantram, iii. p. 15; Benfey's translation, vol. ii. 233.]

[Footnote 36: Brihaspati, ix. 7. Jolly, 'Recht und Sitte,' in Buehler, Grundriss der indo-arischen Philologie, ii. 92. For the rules of prescription in ancient India see also Jolly, p. 91 sqq., and Kohler, Altindisches Prozessrecht, p. 55 sq.]

[Footnote 37: Supra, i. 637 sqq.]

A further source of ownership lies in the principle that a person has a title to the products of his own labour. Grotius--in criticising the Roman jurist Paulus, who long before Locke had made labour a justification of property,--[38]argues that this is no special mode of acquisition, but that the labourer's claim to what he produces is based on occupation. "Since in the course of nature," Grotius says, "nothing can be made except but of pre-existing matter, if that matter was ours, the ownership continues when it assumes a new form; if the matter was no one's property, this acquisition comes under occupation; if the matter belonged to another, the thing made is not ours alone."[39] This argument contains its own refutation. If a thing which we make of matter belonging to another person is not "ours alone," our partial right to it can be due only to our labour. Again, if we make a thing of materials belonging to ourselves, our right to it is certainly held to be increased by our exertions in producing it. It should, moreover, be remembered that there is ownership in the products not only of manual but of mental labour, and in the latter case the ownership can hardly be considered to be due to occupation at all. We may say with Mr. Spencer that from the beginning things identified as products of a man's labour are recognised as his. Even {42} among the rudest peoples there is property in weapons, implements, dress, decorations, and other things in which the value given by labour bears a specially large proportion to the value of the raw material.[40] If a Greenlander finds a dead seal with a harpoon in it, he keeps the seal, but restores the harpoon to its owner.[41] Among the same people, when somebody has built dams across salmon-rivers to catch the fish, it is not considered proper for strangers to come and meddle with them.[42] In various parts of Africa he who has dug a well has a right to the exclusive disposal of it.[43] In West Africa, according to Miss Kingsley, that which is acquired or made by a man or woman by their personal exertions is regarded as his or her private property.[44] The Moquis of Arizona "are co-operative in all their labours, whether as hunters, herders, or tillers of the soil; but each man gathers the spoils of his individual skill and daring, or the fruits of his own industry."[45] In the Nicobars, whilst everything which the village as a whole makes or purchases is common property, the result of individual work belongs to the individual.[46] In old Hindu law-books the performance of labour is specified as one of the lawful modes of acquiring property.[47] According to Nârada, when the owner of a field is unable to cultivate it, or dead, or gone no one knows whither, any stranger who undertakes its cultivation unchecked by the owner shall be allowed to keep the produce; and if the owner returns while the stranger is engaged in cultivation, the owner, in order to recover his field, has to pay to the cultivator the whole expense incurred in tilling the waste.[48] Thus, though cultivation does not give a right to the land, it gives a right to the produce {43} of the labour performed. Among uncivilised races we frequently find that the land itself and the crops or trees growing on it have different owners, the latter belonging to the person who planted them.[49]

[Footnote 38: Cf. Girard, op. cit. p. 316.]

[Footnote 39: Grotius, op. cit. ii. 3. 3.]

[Footnote 40: Spencer, Principles of Sociology, ii. 646. Idem, Principles of Ethics, ii. 98. Cf. Waitz, op. cit. i. 440 sq.]

[Footnote 41: Dalager, op. cit. p. 25.]

[Footnote 42: Nansen, First Crossing of Greenland, ii. 299.]

[Footnote 43: Munzinger, Die Sitten und das Recht der Bogos, p. 70. Lang, in Steinmetz, Rechtsverhältnisse, p. 264 (Washambala). von François, Nama und Damara, p. 175 (Herero).]

[Footnote 44: Kingsley, West African Studies, p. 366.]

[Footnote 45: Bourke, Snake-dance of the Moquis, p. 260 sq.]

[Footnote 46: Kloss, In the Andamans and Nicobars, p. 240.]

[Footnote 47: Gautama, x. 42. Laws of Manu, x. 115.]

[Footnote 48: Nârada, xi. 32 sq.]

[Footnote 49: Colenso, op. cit. p. 31 (Maoris). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 25 (Bakwiri). Lang, ibid. p. 264 (Washambala). Munzinger, Die Sitten und das Recht der Bogos, p. 69. Hanoteau and Letourneux, La Kabylie, ii. 230; Kobelt, Reiseerinnerungen aus Algerien und Tunis, p. 293 (Kabyles of Jurjura). Hyde Clarke, in Jour. Anthr. Inst. xix. 199 sqq. Post, Afrikanische Jurisprudenz, ii. 172. Schurtz, in Zeitschr. f. Socialwissenschaft, iii. 250 sq.]

The right of ownership may, further, be established by a transfer of property by its owner, either by way of gift or by sale or exchange or some other form of contract. The conditions necessary for this method of acquisition are, that the owner shall have a right to alienate the article in question, and that the other party shall be capable of owning such property. As has been said before, ownership does not necessarily imply an unrestricted power of disposition. Property in land, for instance, is frequently considered inalienable;[50] and, to take another example, the power of testation, if recognised at all, is often subject to restrictions.[51] The customary law of the Fantis of West Africa does not permit any person to bequeath to an outsider a greater portion of his property than is left for his family.[52] Among the Maoris land obtained by purchase or conquest may be given away or willed by the owner to anybody he thinks fit, but the case is different with patrimony.[53] With regard to the so-called Aryan peoples Sir Henry Maine thinks "it is doubtful whether a true power of testation was known to any original society except the Roman."[54] Even in Rome bequest seems not to have been permitted in pre-historic times, and afterwards a legitima portio was compulsorily reserved for each child.[55] Such is still the law of some continental nations.

[Footnote 50: Post, Entwicklungsgeschichte des Familienrechts, p. 286 sqq. Avebury, Origin of Civilisation, p. 483 sq.]

[Footnote 51: Post, Grundriss der ethnol. Jurisprudenz, ii. 200 sqq. Idem, Afrikanische Jurisprudenz, ii. 19.]

[Footnote 52: Sarbah, op. cit. p. 85.]

[Footnote 53: Polack, op. cit. ii. 69.]

[Footnote 54: Maine, Ancient Law, p. 196. See also Fustel de Coulanges, La cité antique, p. 95.]

[Footnote 55: Fustel de Coulanges, op. cit. p. 96. Hunter, Roman Law, p. 780 sqq. Girard, op. cit. p. 854 sqq.]

{44} Closely connected with the restrictions imposed on a proprietor's power of testation is the rule of inheritance, one of the most common methods of acquiring property. At the earlier stages of civilisation the property of a deceased person is not in every case subject to this rule. Apart from the practice of testation, which, though hardly primitive, is not infrequently found among savages,[56] there are other ways of dealing with it besides inheritance. The private belongings of the dead, or part of them, are destroyed or buried with him, or his dwelling is burned or abandoned;[57] but Dr. Dargun goes too far when saying that among rude savages this custom is generally practised to such an extent as to exclude heirship in property altogether.[58] Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance[59] from the fact that among some North American tribes, when a man dies leaving young children who are unable to defend themselves, grown-up relatives or other persons come in and seize whatever they please.[60] The ordinary custom of savages is that the dead man's property is inherited either by his own children, if kinship is reckoned through the father, or by his sister's children or other relatives on the mother's side, if kinship is reckoned through females only.[61] Sometimes the rules of inheritance make little or no distinction between men and women;[62] sometimes a decided preference is given to the {45} men[;63] sometimes the women inherit nothing;[64] whereas in a few exceptional cases the women are the only inheritors.[65] Among various savages the widow also has a share in the inheritance, or at any rate has the usufruct of property left by her deceased husband.[66] Very frequently the eldest son,[67] or, where the maternal system of descent prevails in {46} full, the eldest uterine brother[68] or the eldest son of the eldest uterine sister,[69] is the chief or even the only heir. But there are also several instances in which this privilege is granted to the youngest son.[70] Thus, among the Hos of India he apparently inherits all the property of his father;[71] among the Limbus of Nepal, though an extra share is set apart for the eldest son, the youngest one is allowed to choose his share first;[72] among the Eskimo of Behring Strait, "if there are several sons the eldest gets the least, the most valuable things being given to the youngest."[73] In Greenland a foster-son inherits all the property of his foster-father, if the latter dies without offspring or if his sons are still young children;[74] and of the West African Fulah we are told that, though they have sons and daughters, the adopted child becomes heir to all that they leave behind.[75] Among the Kukis, in default of legitimate issue, a natural son succeeds to his father's property before all other male relations;[76] among the Bódo and Dhimáls sons by concubinage or adoption get equal shares with sons born in wedlock;[77] the Wanyamwezi of Eastern Africa have the habit of leaving property to their illegitimate children by slave girls or concubines even to the exclusion of their issue by wives.[78] Among other uncivilised peoples, {47} again, slaves cannot inherit at all,[79] and where they are allowed to possess property the master is sometimes the legitimate heir of his slave.[80]

[Footnote 56: Ellis, Polynesian Researches, iii. 115 sq. (Tahitians). Wilkin, in Reports of the Cambridge Expedition to Torres Straits, v. 286 (natives of Mabuiag). Kingsley, West African Studies, p. 373. Lang, in Steinmetz, Rechtsverhältnisse, p. 238 (Washambala). Desoignies, ibid. p. 277 (Msalala). Rautanen, ibid. p. 336 (Ondonga). Dale, in Jour. Anthr. Inst. xxv. 224. Post, Grundriss der ethnol. Jurisprudenz, ii. 199.]

[Footnote 57: See infra, on Regard for the Dead.]

[Footnote 58: Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 99 sqq.]

[Footnote 59: Ibid. p. 102 sq.]

[Footnote 60: Prescott, in Schoolcraft, Indian Tribes of the United States, ii. 194 sq. (Dacotahs). Hale, U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 208 (Salish). Dalager, op. cit. p. 30 sq.; Cranz, op. cit. i. 176 (Greenlanders).]

[Footnote 61: See Westermarck, op. cit. p. 97 sqq.]

[Footnote 62: Kloss, op. cit. p. 241 (Nicobarese). Wilkin, in Rep. Cambridge Anthr. Exped. v. 285 sq. (natives of Mabuiag). Wilkes, U.S. Exploring Expedition, v. 85 (Kingsmill Islanders). Senfft, in Steinmetz, Rechtsverhältnisse, p. 441 (Marshall Islanders). Dawson, op. cit. p. 7 (certain tribes of Western Victoria). Post, Afrikanische Jurisprudenz, ii. 14. Idem, Entwicklungsgeschichte des Familienrechts, p. 299. Idem, Grundriss der ethnol. Jurisprudenz, i. 225.]

[Footnote 63: Sarbah, Fanti Customary Laws, p. 87. Post, Afrikanische Jurisprudenz, ii. 13 sq. Idem, Entwicklungsgeschichte des Familienrechts, p. 298 sq. Idem, Grundriss der ethnol. Jurisprudenz, i. 222 sqq. Among several uncivilised peoples landed property descends exclusively (Macpherson, Memorials of Service in India, p. 62 [Kandhs]; Sumner, in Jour. Anthr. Inst. xxxi. 79 [Jakuts]; Curr, The Australian Race, i. 64; Johnston, Uganda Protectorate, ii. 694; Post, Entwicklungsgeschichte des Familienrechts, p. 298 sq.; Idem, Grundriss der ethnol. Jurisprudenz, i. 224) or by preference (Thomson, Story of New Zealand, i. 96; Post, Grundriss der ethnol. Jurisprudenz, i. 224 sq.) to men.]

[Footnote 64: Castrén, Nordiska resor och forskningar, i. 312 (Ostyaks). Marshall, A Phrenologist amongst the Todas, p. 206. Hodgson, Miscellaneous Essays, i. 122 (Bódo and Dhimáls). Hislop, _Papers relating to the Aboriginal Tribes of the Central Provinces_, p. 12, n. [dagger] (Gonds). Soppitt, _Account of the Kuki-Lushai Tribes_, p. 16; Stewart, 'Notes on Northern Cachar,' in Jour. Asiatic Soc. Bengal, xxiv. 640 (Kukis). Risley, Census of India, 1901, vol. i. Ethnographic Appendices, pp. 146 (Santals), 156 (Mundas), 209 (most of the Angami Nagas). Fryer, Khyeng People of the Sandoway District, p. 6. Marsden, _op. cit._ p. 244 (Rejangs). Eyre, _Expeditions of Discovery into Central Australia_, ii. 297. Munzinger, _Die Sitten und das Recht der Bogos_, p. 73. Hinde, Last of the Masai, p. 105; Johnston, Uganda Protectorate, ii. 828 (Masai). Dale, in _Jour. Anthr. Inst._ xxv. 224 (Wabondei). Kingsley, Travels in West Africa, p. 485 (some West African tribes). Nassau, _Fetichism in West Africa_, p. 13 (natives of the Cameroons). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 20 (Bakwiri). Mademba, ibid. p. 81 (pagan Bambara). Lang, ibid. p. 238 (Washambala). Kraft, ibid. p. 289 (Wapokomo). Rautanen, ibid. p. 335 (Ondonga). Decle, op. cit. p. 486 (Wakamba). Campbell, _Travels in South Africa_, p. 520 (Kafirs). Post, _Afrikanische Jurisprudenz_, ii. 5. Idem, _Entwicklungsgeschichte des Familienrechts_, p. 296 sqq. Idem, _Grundriss der ethnol. Jurisprudenz_, i. 218 sq.]

[Footnote 65: Hamy, in Bull. Soc. d'Anthr. Paris, ser. ii. vol. xii. (1877), 535 (Penong Piâk of Cambodia). Buchanan, quoted by Hodgson, Miscellaneous Essays, i. 110 (Kócch). Post, Grundriss der ethnol. Jurisprudenz, i. 213.]

[Footnote 66: Nelson, 'Eskimo about Bering Strait,' in Ann. Rep. Bur. Ethn. xviii. 307. Dawson, Australian Aborigines, p. 7 (certain tribes of Western Victoria). Hunt, 'Ethnogr. Notes on the Murray Islands, Torres Straits,' in Jour. Anthr. Inst. xxviii. 7. Grange, 'Journal of an Expedition into the Naga Hills,' in Jour. Asiatic Soc. Bengal, ix. pt. ii. 964. Mason, ibid. xxxvii. pt. ii. 142 (Karens). Post, Entwicklungsgeschichte des Familienrechts, p. 303 sqq.]

[Footnote 67: Dalager, op. cit. pp. 29, 31; Cranz, op. cit. i. 176 (Greenlanders). Risley, op. cit. p. 203 (Limbus of Nepal). Macpherson, op. cit. p. 62 (Kandhs). Soppitt, op. cit. p. 16 (Kukis). Fryer, op. cit. p. 6 (Khyens). Junghuhn, op. cit. ii. 147 (Bataks). Gill, Life in the Southern Isles, p. 46. Polack, op. cit. ii. 69; Colenso, op. cit. p. 33 (Maoris). Munzinger, Die Sitten und das Recht der Bogos, pp. 69, 73 sq. Paulitschke, op. cit. p. 192 (Gallas). Hollis, Masai, p. 309; Hinde, op. cit. pp. 51, 105 (Masai). Volkens, Der Kilimandscharo, p. 253 (Wadshagga). Kingsley, Travels in West Africa, p. 485 (some West African tribes). Bosman, op. cit. pp. 173 (natives of the Gold Coast), 322 (natives of the Slave Coast). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 20 (Bakwiri). Mademba, ibid. p. 81 (pagan Bambara). Desoignies, ibid. p. 276 (Msalala). Marx, ibid. p. 355 (Amahlubi), Chanler, Through Jungle and Desert, p. 316 (Rendile), Post, Afrikanische Jurisprudenz, ii. 12 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 217, 218, 220 sq.]

[Footnote 68: Proyart, 'History of Loango,' in Pinkerton, Collection of Voyages and Travels, xvi. 571.]

[Footnote 69: Kingsley, West African Studies, p. 373 sq. (some West African tribes). Sorge, in Steinmetz, Rechtsverhältnisse, p. 413 (Nissan Islanders).]

[Footnote 70: Risley, op. cit. p. 227 (Lusheis). Avebury, Origin of Civilisation, p. 493 sqq. Post, Grundriss, der ethnol. Jurisprudenz, i. 218, 221 sq. Liebrecht, Zur Volkskunde, p. 432.]

[Footnote 71: Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 794, n.*]

[Footnote 72: Risley, op. cit. p. 203. Cf. Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. ii. 142 (Karens).]

[Footnote 73: Nelson, in Ann. Rep. Bur. Ethn. xviii. 307.]

[Footnote 74: Dalager, op. cit. p. 33.]

[Footnote 75: Denham and Clapperton, quoted in Spencer's Descriptive Sociology, African Races, p. 8.]

[Footnote 76: Stewart, in Jour. Asiatic Soc. Bengal, xxiv. 640.]

[Footnote 77: Hodgson, Miscellaneous Essays, i. 122.]

[Footnote 78: Burton, Lake Regions of Central Africa, ii. 23 sq. Cf. Post, Afrikanische Jurisprudenz, ii. 6.]

[Footnote 79: Nicole, in Steinmetz, Rechtsverhältnisse, pp. 115, 119 (Diakité-Sarracolese). Lang, ibid. pp. 238, 242 (Washambala). Kraft, ibid. pp. 289, 291 (Wapokomo). Rautanen, ibid. p. 335 (Ondonga). Post, _Grundriss der ethnol. Jurisprudenz_, i. 383.]

[Footnote 80: Munzinger, Die Sitten und das Recht der Bogos, p. 73. Steinmetz, Rechtsverhältnisse, p. 43 (Banaka and Bapuku). Mademba, ibid. p. 83 (natives of the Sansanding States). Post, Grundriss der ethnol. Jurisprudenz, i. 383.]

At higher stages of civilisation the rules of inheritance present the same characteristics as among many savages. During historic times, at least, the nations of culture have reckoned kinship through the father, and succession has been agnatic.[81] In China women only inherit in the very last resort, failing all male relatives.[82] Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit;[83] but the later law conferred on daughters the right of heirship in the absence of sons.[84] The Muhammedan law of inheritance in most cases awards to a female a share equal to half that of a male of the same degree of relationship to the deceased;[85] but according to the old law of Medina women could not inherit at all.[86] Of all the ancient nations with whose rules of inheritance we are acquainted, the Romans seem to have been the only one who gave daughters the same right of inheritance as sons.[87] In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved.[88] In Attic law sons excluded {48} daughters from succession,[89] and the same was the case among the Scandinavian peoples still in the later Middle Ages.[90] In England women are even to this day postponed to men in the order of succession to real property.[91] Special privileges in the division of the father's property were granted to the eldest son by the Hebrews[92] and Hindus,[93] and traces of primogeniture are met with in ancient Greek legislation.[94] In the history of English law we find not only primogeniture, but ultimogeniture as well.[95] As regards the question of legitimacy, we notice that in China all sons born in the household have an equal share in the inheritance, whether born of the principal wife or a concubine or a domestic slave.[96] Among the Hebrews the sons of concubines had a right of inheritance,[97] but whether on an equality with the other sons we do not know.[98] According to Muhammedan law no distinction in point of inheritance is made between the child of a wife and that borne by a slave to her master, if the master acknowledge the child to be his own.[99] In Hindu legislation the legitimate {49} sons have the nearest right to the inheritance of their father, but a son begotten by a Sûdra on a female slave may, if permitted by his father, take a share of it.[100] The Roman law on the subject may be summed up thus:--With regard to its father a natural child has no right at all, and differs in no respect from a stranger; with regard to its mother it has the same right as a legitimate child.[101] In Teutonic countries the position of illegitimate children as to succession was much more favourable in earlier times than later on when Christianity made its influence felt, depriving them of all title to inheritance.[102] Strangers were formerly unable both to inherit and to transmit property. For a long time it was the custom in Europe to confiscate their effects on their death; and not only persons who were born in a foreign country were subject to this droit d'aubaine, as it was called in France, but in some countries it was applied even to persons who removed from one diocese to another, or from the lands of one baron to another.[103] Indeed, it is only in recent times that foreigners have been placed on a footing of equality with citizens with regard to inheritance. In 1790 the French National Assembly abolished the right of aubaine as being contrary to the principle of a human brotherhood.[104] Later on, when the Code Napoléon was drawn up, a backward step was taken by restricting the abolition of this right to nations who acted with reciprocity; but this limitation only lasted till 1819, when all inequalities were finally removed in France.[105] In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.[106]

[Footnote 81: See Westermarck, op. cit. p. 104.]

[Footnote 82: Alabaster, 'Law of Inheritance,' in China Review, v. 193. 'Inheritance and "Patria Potestas" in China,' ibid. v. 406.]

[Footnote 83: Genesis, xxxi. 14 sq. Numbers, xxvii. 4. Gans, Das Erbrecht in weltgeschichtlicher Entwickelung, i. 147. Benzinger, 'Law and Justice,' in Cheyne and Black, Encyclopædia Biblica, iii. 2728.]

[Footnote 84: Numbers, xxvii. 8. Gans, op. cit. i. 147. Benzinger, loc. cit. p. 2729. It is only by exceptional favour that the daughters inherit along with the sons (Job, xlii. 15).]

[Footnote 85: Koran, iv. 12, 175. Lane, Manners and Customs of the Modern Egyptians, p. 116 sq. Kohler, Rechtsvergleichende Studien, p. 102 sqq.]

[Footnote 86: Robertson Smith, _Kinship and Marriage in Early Arabia_, pp. 65, 117.]

[Footnote 87: Gans, op. cit. ii. 367 sq. Gide, Étude sur la condition privée de la femme, p. 102.]

[Footnote 88: Jolly, loc. cit. pp. 83, 86. Kohler, 'Indisches Ehe- und Familienrecht,' in Zeitschr. f. vergl. Rechtswiss. iii. 424 sqq. Leist, Alt-arisches Jus Civile, ii. 48.]

[Footnote 89: Gans, op. cit. i. 338, 341. Gide, op. cit. p. 79.]

[Footnote 90: Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 95, 190. Stemann, Den danske Retshistorie indtil Christian V.'s Lov, p. 311 sq. Keyser, Efterladte Skrifter, ii. pt. i. 330, 339.]

[Footnote 91: Renton, Encyclopædia of the Laws of England, xi. 75.]

[Footnote 92: Deuteronomy, xxi. 17. Gans, op. cit. i. 148. Benzinger, in Cheyne and Black, Encyclopædia Biblica, iii. 2729. Mr. Jacobs suggests (Studies in Biblical Archæology, p. 49 sqq.) that ultimogeniture was once the rule in early Hebrew society, and was succeeded by primogeniture only when the Israelites exchanged their roving life for one in which sons became more stay-at-home.]

[Footnote 93: Âpastamba, ii. 6. 14. 6, 12. Laws of Manu, ix. 114. Jolly, loc. cit. pp. 77, 82. Maine, Dissertations on Early Law and Custom, p. 89 sq. In China, though sons inherit in equal shares, "it is not uncommon for the brothers to temporarily yield up their share to the elder brother, either in whole or in part, for the glory of the House" ('Inheritance and "Patria Potestas" in China,' in China Review, v. 406; cf. Doolittle, Social Life of the Chinese, ii. 224; Davis, China, i. 343).]

[Footnote 94: Fustel de Coulanges, op. cit. p. 99.]

[Footnote 95: Elton, Origins of English History, p. 178 sqq. Pollock and Maitland, _History of English Law till the Time of Edward I._ ii. 263 sqq. The custom of ultimogeniture has also been traced in Wales, parts of France, Germany, Friesland, Scandinavia, Russia, and Hungary (Elton, op. cit. p. 180 sqq.; Liebrecht, op. cit. p. 431 sq.).]

[Footnote 96: Parker, 'Comparative Chinese Family Law,' in China Review, viii. 79. 'Inheritance and "Patria Potestas" in China,' ibid. v. 406. Medhurst, 'Marriage, Affinity, and Inheritance in China,' in Trans. Roy. Asiatic Soc. China Branch, iv. 31. Simcox, Primitive Civilizations, ii. 351.]

[Footnote 97: Genesis, xxi. 10 sqq.]

[Footnote 98: Benzinger, in Cheyne and Black, _Encyclopædia Biblica_, iii. 2729.]

[Footnote 99: Lane, Modern Egyptians, p. 118.]

[Footnote 100: Jolly, loc. cit. p. 85. Laws of Manu, ix. 179.]

[Footnote 101: Gide, op. cit. p. 567 sqq.]

[Footnote 102: Nordström, op. cit. ii. 67, 200 sqq. See also Alard, Condition et droits des enfants naturels, pp. 9, 11; supra, i. 47.]

[Footnote 103: Brussel, Nouvel examen de l'usage général des fiefs en France, ii. 944 sqq. de Laurière, Glossaire du droit françois, p. 47 sq. Demangeat, Histoire de la condition civile des étrangers en France, p. 107 sqq.]

[Footnote 104: Demangeat, op. cit. p. 239.]

[Footnote 105: Ibid. p. 250 sqq.]

[Footnote 106: Naturalisation Act, 1870, § 2.]

Besides acquisition by occupation, possession for a certain length of time, labour, voluntary transfer, and inheritance, there are instances in which ownership in a {50} thing directly follows from ownership in another thing. It is a general rule that the owner of an object also owns what develops from or is produced by it.[107] The owner of a cow owns her calf, the owner of a tree its fruits, the owner of a piece of land anything growing on it, at least if no labour has been necessary for its production. Ownership in land also gives a certain right to the wild animals which are found there. Among the Fantis, for instance, if anybody kills game on another person's land, its proprietor is entitled to the shoulder or a quarter of such game.[108] In this connection we have further to notice the mode of acquisition which the Roman jurists called accessio. When that which belongs to one person is so intermixed with the property of another, that either it cannot be separated at all, or cannot be separated without inflicting damage out of proportion to the gain, the owner of the principal becomes the owner of the accessory, though, as a rule, he would have to pay compensation for it.[109]

[Footnote 107: See Post, Grundriss der ethnol. Jurisprudenz, ii. 612; Goos, Forelæsninger over den almindelige Retslære, ii. 159 sqq.]

[Footnote 108: Sarbah, op. cit. p. 48.]

[Footnote 109: Hunter, Roman Law, p. 247 sq.]

All these methods of acquisition apply not only to individual property, but to common property as well. Occupation may establish ownership whether there be many occupants or only one; joint labour may lead to joint ownership in the produce; property may be transferred to a body of persons as well as to a single individual. But the custom which prescribes community of goods may also itself be an independent method of acquisition: by belonging to an association of people who hold property in common a person may be part owner of a thing which has been occupied or produced by some other member of the association. Communism of one kind or another is undoubtedly a very ancient institution,[110] though its prevalence at the lower stages of civilisation has often been exaggerated.[111] But the whole question of {51} common ownership is too complicated and lies too much apart from our special subject to admit of a detailed treatment.

[Footnote 110: Cf. Kovalewsky, Tableau des origines et de l'évolution de la famille et de la propriété, p. 51 sqq.]

[Footnote 111: Dr. Dargun (in Zeitschr. f. vergl. Rechtswiss. v. 76, &c.) even goes so far as to say that savages know of no other property but such as belongs to individuals; but this statement is hardly justified by facts.]

* * * * *

From the statement of facts we shall now proceed to an explanation of these facts. First, why do men recognise proprietary rights at all? Why do the moral feelings of mankind grant to certain persons a right to the exclusive disposal of certain things, in other words, why does the disposal of an object without the consent of the person called its owner give rise to moral disapproval? The "right of property," it is true, is generally used as a term for a legal right. But in this, as in so many other cases, the legal right is essentially a formulated expression of moral feelings.

As Mr. Spencer observes, the desire to appropriate, and to keep that which has been appropriated, lies deep not only in human but in animal nature, being, indeed, a condition of survival.[112] Sticklebacks show obvious signs of anger when their territory is invaded by other sticklebacks.[113] Birds defend their nests against the attacks of intruders.[114] The dog fights for his kennel or for the prey he has caught. A monkey in the Zoological Gardens of London, which made use of a stone to open nuts, always hid it in the straw after using it, and would not allow any other monkey to touch it.[115] We find the same propensity in man from his earliest years. At the age of two, Tiedemann's son did not let his sister sit on his chair or take any of his clothes, though he had no scruples against appropriating things which belonged to her.[116] Owing to this tendency to keep an appropriated object, and to resist its abstraction, it is dangerous for an individual to try to seize anything held by another of about equal strength; {52} and in human societies this naturally led to the habit of leaving each in possession of whatever he had attained, especially in early times when the objects possessed were of little value, and there was no great inequality of wealth.[117] This habit was further strengthened by various circumstances, all of which tended to make interference with other persons' possessions the subject of moral censure. From both prudential and altruistic motives parents taught their children to abstain from such interference, and this, by itself, would readily give rise to the notion of theft as a moral wrong. Society at large also tried to prevent acts of this kind, partly in order to preserve peace and order, partly out of sympathy with the possessor. Resentment is felt not only by him who is deprived of his possession, but by others on his behalf. This is seen even among some of the lower animals. The Pomeranian dogs of German carters watch the goods of their masters;[118] Mr. Romanes's terrier protected meat from other terriers, his offspring, which lived in the same house with him, and with which he was on the very best of terms;[119] Captain Gordon Stables's cat, which had her place on the table at meals, never allowed any unauthorised interference with the viands.[120] In men such sympathetic resentment naturally develops into genuine moral disapproval.

[Footnote 112: Spencer, Principles of Sociology, ii. 644.]

[Footnote 113: Supra, i. 22.]

[Footnote 114: Perty, Das Seelenleben der Thiere, p. 68.]

[Footnote 115: Darwin, Descent of Man, i. 125. See also Fischer, 'Notes sur l'intelligence des singes,' in Revue scientifique, xxxiii. 618.]

[Footnote 116: Compayré, L'évolution intellectuelle et morale de l'enfant, p. 312.]

[Footnote 117: Cf. Spencer, Principles of Sociology, ii. 634, 644; Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 79 sq.; von Martius, Beiträge zur Ethnographie Amerika's, i. 88, 90.]

[Footnote 118: Peschel, Races of Man, p. 240.]

[Footnote 119: Romanes, 'Conscience in Animals,' in _Quarterly Journal of Science_, xiii. 156, n.*]

[Footnote 120: 'Studies in Animal Life,' in Chambers's Journal, 1884, p. 824.]

All this applies not only to proprietary rights based on occupation, but also to the principle of continued possession as a ground of ownership. Indeed, the longer a person is in possession of a certain object, the more apt are both he and other individuals to resent its alienation; whereas the loss or abandonment of a thing has a tendency to loosen the connection between the thing and its owner.[121] This is undoubtedly the chief source of the rule of prescription, {53} though there may be other circumstances as well which help to justify it. Thus it has been said that it is necessary to the security of rightful possessors that they should not be molested by charges of wrongful acquisition when by the lapse of time witnesses must have perished or been lost sight of, and the real character of the transaction can no longer be cleared up;[122] whilst another argument adduced in favour of prescription is, that long possession generally implies labour and that labour gives ownership.[123] The reason why property is gained by labour is obvious enough. Not only do exertions in producing an object make the producer desirous to keep it and to have the exclusive disposal of it, but an encroachment upon the fruit of his labour arouses sympathetic resentment in outsiders, who feel that an effort deserves its reward.

[Footnote 121: Cf. Hume, Treatise of Human Nature, ii. 3 (Philosophical Works, ii. 274):--"What has long lain under our eye, and has often been employed to our advantage, that we are always the most unwilling to part with."]

[Footnote 122: Mill, Principles of Political Economy, i. 272.]

[Footnote 123: Thiers, op. cit. p. 103 sqq.]

As the recognition of ownership thus ultimately springs from a desire in the owner to keep and dispose of what he has appropriated or produced, it is evident that, in ordinary circumstances, there would be no moral disapproval of a voluntary transfer of property to another person. But the case is different if such a transfer is injurious to the interests of persons who have a special claim to consideration. Thus testation is frequently held to be inconsistent with the duties which parents owe to their children or other near relatives to one another. The father, though the lord of the family's possessions, may indeed be regarded only as the first magistrate of an association, and in such a case his share in the division naturally devolves on the member of the family who succeeds to his authority.[124] The right of inheritance, then, may be intimately connected with the idea that the heir was, in a manner, joint owner of the deceased person's property already during his lifetime.[125] But there are {54} various other facts which account for the existence of this right. In early civilisation the rule of succession is part of a comprehensive system of rights and duties which unite persons of the same kin. Professor Robertson Smith observes that in ancient Arabia all persons on whom the duty of blood-revenge lay originally had the right of inheritance;[126] and a similar connection between inheritance and blood-revenge is found among other peoples. This system of mutual rights and duties is generally one-sided, it has reference either to paternal or to maternal relatives, but not to both at once. Now, whatever be the reason why the one or the other method of reckoning kinship prevails among a certain people, it is in the present place sufficient to point out the influence which the idea of a common descent exercises upon the right of inheritance owing to its power of knitting together the persons to whom it refers. Besides, the duty connected with this right may also be of such a nature as to require a certain amount of wealth for its performance; among the Hindus, Greeks, and Romans, the right to inherit a dead man's property was exactly co-extensive with the duty of performing his obsequies and offering sacrifices to his spirit.[127] A further cause of children inheriting their father's property may be that they, to some extent, have previously been in joint possession of it; for, as we know, possession readily leads to ownership. They would have an additional claim to succeed to his property when it had been gathered by their labour, as well as his, or when they stood in need of the support which it had been the father's duty to give them had he been alive. Moreover, where a person's children are present on the spot at his death, they are apt to be the first occupants of his {55} property;[128] and we have noticed the importance of first occupancy as a means of establishing proprietary rights. The influence of these latter considerations, which are independent of the method of tracing descent, is apparent from the fact that among several peoples inheritance runs in the male line even though children take the mother's name and are considered to belong to her clan.[129] It may be added that a reason which modern writers often have assigned for giving the property of a person who dies intestate to his children or other near relatives is the supposition that in so disposing of it the law is only likely to do what the proprietor himself would have done, if he had done anything.[130]

[Footnote 124: Plato, Leges, xi. 923. Maine, Ancient Law, p. 184. Fustel de Coulanges, op. cit. p. 85. Leist, _Alt-arisches Jus Civile_, ii. 48. Mill, op. cit. i. 274. Kovalewsky, Coutume contemporaine et loi ancienne, p. 198 (Ossetes).]

[Footnote 125: It is interesting to note that in the Chinese penal code stealing from a relative is punished less severely than other cases of theft, and that the mitigation of the punishment is proportionate to the nearness of the relationship (Ta Tsing Leu Lee, sec. cclxxii. p. 287). The reason for this is that, "according to the Chinese patriarchal system, a theft is not in this case a violation of an exclusive right, but only of the qualified interest which each individual has in his share of the family property" (Staunton, ibid. p. 287, n.*).]

[Footnote 126: Robertson Smith, Kinship and Marriage in Early Arabia, pp. 55, 56, 66 sq.]

[Footnote 127: Laws of Manu, ix. 186 sq. Isaeus, Oratio de Philoctemonis hereditate, 51. Cicero, De legibus, ii. 19 sq. Fustel de Coulanges, op. cit. p. 84. Maine, Ancient Law, p. 191 sq.]

[Footnote 128: Cf. Mill, op. cit. i. 274.]

[Footnote 129: Westermarck, History of Human Marriage, pp. 104, 111.]

[Footnote 130: Hume, Treatise of Human Nature, ii. 3 (Philosophical Works, ii. 280). Godwin, _Enquiry concerning Political Justice_, ii. 438. Mill, op. cit. i. 275.]

In details the rules of succession are influenced by a variety of circumstances. Women may be excluded from inheritance or receive a smaller share than the men because the latter, being the stronger party, appropriate everything or the larger portion of the property for themselves;[131] or because the women are less in need of property, being supported by their male relatives or husbands;[132] or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge;[133] or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars;[134] or for the purpose of preventing the estate from passing to another family or tribe.[135] The idea of keeping together the property of the house also largely is at the bottom of the rule of primogeniture. {56} Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being.[136] On the death of the head of the family he is generally better suited than anybody else to take his place; and his privileged position with regard to inheritance is justified by the duties connected with it, especially the duty of looking after and supporting the other members of the household.[137] In feudalism, where tenancy implied duties as well as rights, it was also, from the lord's point of view, the simplest arrangement that when a tenant died a single person should fill the vacant place.[138] But there are many other points of view which may determine the rules of succession. It may be thought just that each child should have an equal share in the inheritance, and that something should be given also to the widow, whose maintenance devolved on the husband and who, whilst he was alive, had been in joint possession of many of his belongings. Or the youngest son may be the chief or the exclusive heir, partly perhaps for the sake of preventing a division of the property, or because the lord would have but one tenant,[139] but partly also because he had remained with his father till his death,[140] or "on the plea of his being less able to help himself on the death of the parents than his elder brethren, who have had their father's assistance in settling themselves in the world during his lifetime."[141] The Wanyamwezi, again, justify the practice of leaving property {57} to their illegitimate children by slave girls or concubines, to the exclusion of their legitimate offspring, "by the fact of the former requiring their assistance more than the latter, who have friends and relatives to aid them."[142] Generally there seems to be a close connection between illegitimate children's right to inheritance and the legal recognition of polygamous practices. This is indicated by a comparison between Oriental and Roman legislation on the subject, and, in Teutonic countries, between ancient custom and the later law, which was influenced by Christianity's horror of sexual acts falling outside the monogamous marriage relation. The privileges which Hindu law grants to the illegitimate children of Sûdras are due to the notion that the marriage of a member of this caste is itself considered to be of so low a nature as to be on a par with irregular connections.[143]

[Footnote 131: Cf. Campbell, Travels in South Africa, p. 520 (Kafirs).]

[Footnote 132: Cf. Cranz, op. cit. i. 176 (Greenlanders); Macpherson, Memorials of Service in India, p. 62 (Kandhs); Hinde, op. cit. p. 51 (Masai); 'Inheritance and "Patria Potestas" in China,' in China Review, v. 406; Jolly, _loc. cit._ p. 83 (ancient Hindus); Post, _Entwicklungsgeschichte des Familienrechts_, p. 296 sq.; Idem, _Grundriss der ethnol. Jurisprudenz_, i. 218 sq.]

[Footnote 133: Cf. Robertson Smith, Kinship and Marriage in Early Arabia, p. 65 sq.; Stemann, Den danske Retshistorie indtil Christian V.'s Lov, p. 311 sq.]

[Footnote 134: Cf. Cleveland, Woman under the English Law, p. 83.]

[Footnote 135: Shortland, _Traditions and Superstitions of the New Zealanders_, p. 256. Kingsley, Travels in West Africa, p. 485. Post, Grundriss der ethnol. Jurisprudenz, i. 214. Cf. Numbers, xxxvi. 1 sqq.]

[Footnote 136: Supra, i. 605, 606, 614. Gill, _Life in the Southern Isles_, p. 46 sq.]

[Footnote 137: Dalager, op. cit. pp. 29, 31; Cranz, op. cit. i. 176 (Greenlanders). Munzinger, Die Sitten und das Recht der Bogos, p. 74. Hinde, op. cit. p. 51 (Masai). Of the B[=a]gdis of Bengal Mr. Risley expressly says (op. cit. p. 183) that the extra share which is given to the eldest son "seems to be intended to enable him to support the female members of the family, who remain under his care."]

[Footnote 138: Pollock and Maitland, op. cit. ii. 274.]

[Footnote 139: Ibid. ii. 280.]

[Footnote 140: Risley, op. cit. p. 227 (Lusheis). Among the Angami Nagas the youngest son nearly always inherits his father's house, because sons, when marrying, leave the paternal mansion and build houses of their own (ibid. p. 209). It has been suggested that the custom of ultimogeniture "would naturally arise during the latter stages of the pastoral period, when the elder sons would in the ordinary course of events have 'set up for themselves' by the time of the father's death" (Jacobs, Studies in Biblical Archæology, p. 47; Gomme, quoted ibid. p. 47, n. 1; Blackstone, Commentaries on the Laws of England, ii. 70 sq.).]

[Footnote 141: Tickell, in Jour. Asiatic Soc. Bengal, ix. pt. ii. 794, n.*]

[Footnote 142: Burton, Lake Regions of Central Africa, ii. 23 sq.]

[Footnote 143: Jolly, loc. cit. p. 85.]

Of the incapacity of children, wives, and slaves to acquire property for themselves little needs to be said, in the present connection, by way of explanation. Their exclusion from the right of independent ownership is an incident of their subjection to their parents, husbands, or masters. But we must remember that, whilst the latter have a right to dispose of the earnings of their subordinates, they also have the duty of supporting them, and that in early civilisation the child and the wife, sometimes even the slave,[144] are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.

[Footnote 144: Volkens, op. cit. p. 249 (Wadshagga).]

We have still to explain the variations of moral judgments with regard to different acts of theft. That the condemnation of the offence varies in degree according to the value of the stolen goods follows from the fact that theft is disapproved of on account of the injury done to the owner. But in many cases, when the injury is very slight, the appropriation of another person's property is {58} justified by the needs of him who took it. And frequently, also, the condemnation of the thief is more concerned with his encroachment upon a neighbour's right than with measuring the exact amount of harm inflicted. Among the Basutos, says Casalis, "the idea of theft is expressed by a generic word which refers to the violation of right, much more than to the damage caused."[145] Burglary is regarded as an aggravated form of theft partly because it adds a fresh offence, the illicit entering into another person's house, to that against property, partly because it proves great premeditation in the offender.[146] Robbery is likewise a double offence, implying, as it does, an act of violence, and may on that account be more severely censured than ordinary theft; but in other cases the courage and strength displayed by the robber is looked upon as a mitigating circumstance, and sometimes substitutes admiration for disapproval, whereas the secret offender is despised as a coward. So, too, the secrecy of nocturnal theft may aggravate the crime, whilst at the same time the difficulty in providing against it may induce society to increase the punishment. But men are apt to admire not only bravery and force, but also dexterity and pluck, hence the appreciation of adroit theft. The same tendency in some measure accounts for the distinction between manifest and non-manifest theft; but here we have in the first place to remember that strong emotions are more easily aroused by the sight of an act than by the mere knowledge of its commission.[147] That the moral valuation of theft varies according to the station of the thief and the person robbed is due to the same causes as are similar variations with regard to other injuries; and so is the distinction between offences against the property of a tribesman or fellow-countryman and offences against the property of a stranger. The theory of the Roman jurists according to which the property of an enemy in war belongs to nobody as long as the hostilities last, and therefore becomes the property of the {59} captor by the right of occupation,[148] is only a play with words intended to give a reasonable justification to a practice which is really due to lack of regard for the feelings of strangers. When men at an early stage of civilisation respect a stranger's property the motive is undoubtedly in the main prudential. Savages may be anxious to prevent theft from a neighbouring tribe in order to avoid disagreeable consequences.[149] And I venture to think that the honesty they often display with regard to objects belonging to strangers who visit them, and especially with regard to things left in their charge,[150] largely springs from superstitious fear. We have noticed before that even the acceptance of gifts is supposed to be connected with supernatural danger, owing to the baneful magic energy with which the gift is suspected to be saturated.[151] Would not the same apply to the illicit appropriation of a stranger's belongings, and especially to trusts, which naturally call for great precaution on the part of the owner? This leads us to a subject of considerable importance in the history of property, namely, the influence which magic and religious beliefs have exercised on the regard for proprietary rights.

[Footnote 145: Casalis, Basutos, p. 304.]

[Footnote 146: Cf. Wilda, op. cit. p. 878 (ancient Teutons).]

[Footnote 147: Supra, i. 294.]

[Footnote 148: Hunter, Roman Law, p. 257. Puchta, op. cit. ii. 220.]

[Footnote 149: Sproat, Scenes and Studies of Savage Life, p. 159 (Ahts). Scott Robertson, Káfirs of the Hindu-Kush, p. 440.]

[Footnote 150: See, besides statements referred to above, Lumholtz, Unknown Mexico, i. 420, and ii. 477; Nordenskiöld, Vegas färd kring Asien och Europa, ii. 140 sq. (Chukchi); Worcester, Philippine Islands, p. 413 (Mangyans); Colenso, _op. cit._ p. 43 (Maoris); Macdonald, Light in Africa, p. 212 (Bantu); Campbell, Travels in South Africa, p. 517, and Leslie, Among the Zulus and Amatongas, p. 201 (Kafirs).]

[Footnote 151: Supra, i. 593 sq.]

Theft is not only punished by men, but is supposed to be avenged by supernatural powers. The Alfura of Halmahera are said to be honest only because they fear that they otherwise would be subject to the punishment of spirits.[152] The natives of Efate, in the New Hebrides, maintained that theft was condemned by their gods.[153] In Aneiteum, another island belonging to the same group, thieves were supposed to be punished after death.[154] In Netherland Island they {60} were said to go to a prison of darkness under the earth;[155] according to the beliefs of the Banks Islanders they were excluded from the true Panoi or Paradise.[156] On the Gold Coast, "if a man had property stolen from his house, he might go to the priest of the local deity he was accustomed to worship, state the loss that had befallen him, make an offering of a fowl, rum, and eggs, and ask the priest to supplicate the god to punish the thief."[157] In Southern Guinea fetishes are inaugurated to detect and punish certain kinds of theft, and persons who are cognisant of such crimes and do not give information about them are also liable to be punished by the fetish.[158] The Bechuanas speak of an unknown being, vaguely called by the name of Lord and Master of things (Mongalinto), who punishes theft. One of them said: "When it thunders every one trembles; if there are several together, one asks the other with uneasiness, Is there any one amongst us who devours the wealth of others? All then spit on the ground saying, We do not devour the wealth of others. If a thunderbolt strikes and kills one of them, no one complains, no one weeps; instead of being grieved, all unite in saying that the Lord is delighted (that is to say, he has done right) with killing that man; we also say that the thief eats thunderbolts, that is to say, does things which draw down upon men such judgments."[159]

[Footnote 152: Kükenthal, Forschungsreise in den Molukken, p. 188.]

[Footnote 153: Macdonald, Oceania, p. 208.]

[Footnote 154: Turner, Samoa, p. 326.]

[Footnote 155: Ibid. p. 301.]

[Footnote 156: Codrington, Melanesians, p. 274.]

[Footnote 157: Ellis, Tshi-speaking Peoples of the Gold Coast, p. 75. See also Cruickshank, op. cit. ii. 152, 160, 184; Schultze, Der Fetischismus, p. 91.]

[Footnote 158: Wilson, Western Africa, p. 275.]

[Footnote 159: Arbousset and Daumas, Exploratory Tour to the North-East of the Colony of the Cape of Good Hope, p. 322 sq.]

According to the Zoroastrian Yasts, Rashnu Razista was "the best killer, smiter, destroyer of thieves and bandits."[160] In Greece Zeus [Greek: ktê/sios] was a guardian of the family property;[161] and according to a Roman tradition the domestic god repulsed the robber and kept off the enemy.[162] The removing of landmarks {61} has frequently been regarded as sacrilegious.[163] It was strictly prohibited by the religious law of the Hebrews.[164] In Greece boundaries were protected by Zeus [Greek: o(/rios]. Plato says in his 'Laws':--"Let no one shift the boundary line either of a fellow-citizen who is a neighbour, or, if he dwells at the extremity of the land, of any stranger who is conterminous with him. . . . Every one should be more willing to move the largest rock which is not a land mark, than the least stone which is the sworn mark of friendship and hatred between neighbours; for Zeus, the god of kindred, is the witness of the citizen, and Zeus, the god of strangers, of the stranger, and when aroused terrible are the wars which they stir up. He who obeys the law will never know the fatal consequences of disobedience, but he who despises the law shall be liable to a double penalty, the first coming from the Gods, and the second from the law."[165] The Romans worshipped Terminus or Jupiter Terminalis as the god of boundaries.[166] According to an old tradition, Numa directed that every one should mark the bounds of his landed property by stones consecrated to Jupiter, that yearly sacrifices should be offered to them at the festival of the Terminalia, and that, "if any person demolished or displaced these bound-stones, he should be looked upon as devoted to this god, to the end that anybody might kill him as a sacrilegious person with impunity and without being defiled with guilt."[167] In the higher religions theft of any kind is frequently condemned as a sin.

[Footnote 160: Yasts, xii. 8.]

[Footnote 161: Aeschylus, Supplices, 445. Farnell, Cults of the Greek States, i. 55.]

[Footnote 162: Ovid, Fasti, v. 141.]

[Footnote 163: Trumbull, The Threshold Covenant, p. 166 sq.]

[Footnote 164: Deuteronomy, xix. 14; xxvii. 17. Proverbs, xxii. 28; xxiii. 10 sq. Hosea, v. 10. Cf. Job, xxiv. 2.]

[Footnote 165: Plato, Leges, viii. 842 sq. Demosthenes, Oratio de Halonneso, 39, p. 86. See also Hermann, Disputatio de terminis eorumque religione apud Græcos, passim.]

[Footnote 166: Ovid, Fasti, ii. 639 sqq. Festus, De verborum significatione 'Termino.' Lactantius, Divinæ Institutiones, i. 10 (Migne, Patrologiæ cursus, vi. 227 sqq.). Pauly, Real-Encyclopädie der classischen Alterthumswissenschaft, vi. pt. ii. 1707 sqq. Fowler, Roman Festivals of the Period of the Republic, p. 324 sqq.]

[Footnote 167: Dionysius of Halicarnassus, Antiquitates Romanæ, ii. 74. Plutarch, Numa, xvi. i. Festus, op. cit. 'Termino.']

This religious sanction given to ownership is no doubt in some measure due to the same circumstances as, in certain cases, make morality in general a matter of divine {62} concern--a subject which will be dealt with in a future chapter. But there are also special reasons which account for it. Partly it has its origin in magic practices, particularly in the curse.

Cursing is a frequent method of punishing criminals who cannot be reached in any other way.[168] In the Book of Judges we read of Micah's mother who had pronounced a curse with reference to the money stolen from her, and afterwards, when her son had confessed his guilt, hastened to render it ineffective by a blessing.[169] In early Arabia the owner of stolen property had recourse to cursing in order to recover what he had lost.[170] In Samoa "the party from whom anything had been stolen, if he knew not the thief, would seek satisfaction in sitting down and deliberately cursing him."[171] The Kamchadales "think they can punish an undiscovered theft by burning the sinews of the stonebuck in a publick meeting with great ceremonies of conjuration, believing that as these sinews are contracted by the fire so the thief will have all his limbs contracted."[172] Among the Ossetes, if an object has been secretly stolen, its owner secures the assistance of a sorcerer. They proceed together to the house of any person whom they suspect, the sorcerer carrying under his arm a cat, which is regarded as a particularly enchanted animal. He exclaims, "If thou hast stolen the article and dost not restore it to its owner, may this cat torment the souls of thy ancestors!" And such an imprecation is generally followed by a speedy restitution of the stolen property. Again, if their suspicions rest upon no particular individual, they proceed in the same manner from house to house, and the thief then, knowing that his turn must come, frequently confesses his guilt at once.[173] A common mode of detecting the perpetrator of a theft is to compel the suspected individual to make oath, {63} that is to say, to pronounce a conditional curse upon himself.[174]

[Footnote 168: See, e.g., Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. 149 (Karens).]

[Footnote 169: Judges, xvii. 2.]

[Footnote 170: Wellhausen, Reste arabischen Heidentums, p. 192.]

[Footnote 171: Turner, Nineteen Years in Polynesia, p. 318.]

[Footnote 172: Krasheninnikoff, History of Kamschatka, p. 179 sq.]

[Footnote 173: von Haxthausen, Transcaucasia, p. 398 sq.]

[Footnote 174: von Struve, in Das Ausland, 1880, p. 796 (Samoyedes). Worcester, Philippine Islands, p. 412 (Mangyans of Mindoro). Turner, Nineteen Years in Polynesia, p. 292 sq. (Samoans). Bosman, op. cit. p. 125 (Negroes of the Gold Coast). Bowdich, Mission to Ashantee, p. 267; &c.]

Cursing is resorted to not only for the purpose of punishing thieves or compelling them to restore what they have stolen, but also as a means of preventing theft. In the South Sea Islands it is a common practice to protect property by making it taboo, and the tabooing of an object is, as Dr. Codrington puts it, "a prohibition with a curse expressed or implied."[175] The curse is then, in many cases, deposited in some article which is attached to the thing or place it is intended to protect. The mark of taboo, in Polynesia called rahui or raui, sometimes consists of a cocoa-nut leaf plaited in a particular way,[176] sometimes of a wooden image of a man or a carved post stuck in the ground,[177] sometimes of a bunch of human hair or a piece of an old mat,[178] and so forth. In Samoa there were various forms of taboo which formed a powerful check on stealing, especially from plantations and fruit-trees, and each was known by a special name indicating the sort of curse which the owner wished would fall on the thief. Thus, if a man desired that a sea-pike should run into the body of the person who attempted to steal, say, his bread-fruits, he would plait some cocoa-nut leaflets in the form of a sea-pike, and suspend it from one or more of the trees which he wanted to protect. This was called the "sea-pike taboo"; and any ordinary thief would be terrified to touch a tree from which this was suspended, believing that, if he did so, a fish of the said description would dart up and mortally wound him the next time he went to the sea. The "white shark taboo" was done by plaiting a cocoa-nut leaf in the form of a shark, and was tantamount to an {64} expressed imprecation that the thief might be devoured by the white shark when he went to fish. The "cross-stick taboo," again, consisted of a stick suspended horizontally from the tree, and meant that any thief touching the tree would have a disease running right across his body and remaining fixed there till he died.[179] Exactly equivalent to the taboo of the Pacific Islanders is the pomali of the natives of Timor; "a few palm leaves stuck outside a garden as a sign of the pomali will preserve its produce from thieves as effectually as the threatening notice of man-traps, spring-guns, or a savage dog, would do with us."[180] Among the Santals, whenever a person "is desirous of protecting a patch of jungle from the axes of the villagers, or a patch of grass from being grazed over, or a newly sown field from being trespassed upon, he erects a bamboo in his patch of grass or field, to which is affixed a tuft of straw, or in the case of jungle some prominent and lofty tree has the same prohibitory mark attached, which mark is well understood and strictly observed by all parties interested."[181] So also in Madagascar "on rencontre sur les chemins, on voit dans les champs de longs bâtons munis à leur sommet d'un paquet d'herbes et qui sont plantés en terre soit pour interdire le passage du terrain soit pour indiquer que les récoltes sont réservées à l'usage d'individus déterminés."[182] Among the Washambala the owner of a field sometimes puts a stick wound round with a banana leaf on the road to it, believing that anybody who without permission enters the field "will be subject to the curse of this charm."[183] The Wadshagga protect a doorless hut against burglars by placing a banana leaf over the threshold, and any maliciously inclined person who dares to step over it is supposed to get ill or die.[184] The Akka "stick an arrow in a bunch of bananas still on the stalk to mark it as their own {65} when ripe," and then not even the owner of the tree would think of touching the fruit so claimed by others.[185] Of the Barotse we are told that "when they do not want a thing touched they spit on straws and stick them all about the object."[186] When a Balonda has placed a beehive on a tree, he ties a "piece of medicine" round the trunk, and this will prove sufficient protection against thieves.[187] Jacob of Edessa tells us of a Syrian priest who wrote a curse and hung it on a tree, that nobody might eat the fruit.[188] In the early days of Islam a masterful man reserved water for his own use by hanging pieces of fringe of his red blanket on a tree beside it, or by throwing them into the pool;[189] and in modern Palestine nobody dares to touch the piles of stones which are placed on the boundaries of landed property.[190] The old inhabitants of Cumaná on the Caribbean Sea used to mark off their plantations by a single cotton thread, in the belief that anybody tampering with these boundary marks would speedily die.[191] A similar idea seems still to prevail among the Indians of the Amazon. Among the Jurís a traveller noticed that in places where the hedge surrounding a field was broken, it was replaced by a cotton string; and when Brazilian Indians leave their huts they often wind a piece of the same material round the latch of the door.[192] Sometimes they also hang baskets, rags, or flaps of bark on their landmarks.[193] In these and in various other instances just referred to it is not expressly stated that the taboo mark embodies a curse, but their similarity to cases in which it does so is striking enough to {66} preclude much doubt about their real meaning. It is true that an object which is sacred by itself may, on that account, protect everything in its neighbourhood;[194] in Morocco any article deposited in the [h.]orm of a saint is safe, and among pagan Africans the same effect is produced by using fetishes as protectors of fields or houses.[195] But a thing of inherent holiness may also be chosen for taboo purposes for the reason that its sanctity is supposed to give particular efficacy to any curse with which it may be loaded.

[Footnote 175: Codrington, Melanesians, p. 215.]

[Footnote 176: Taylor White, in Jour. Polynesian Soc. i. 275.]

[Footnote 177: Hamilton, Maori Art, p. 102; Thomson, _Story of New Zealand_, i. 102; Polack, op. cit. ii. 70 (Maoris). Ellis, Polynesian Researches, iii. 116 (Tahitians).]

[Footnote 178: Thomson, op. cit. i. 102 (Maoris). See also Colenso, op. cit. p. 34 (Maoris); Ellis, _Polynesian Researches_, iii. 201 (Tahitians).]

[Footnote 179: Turner, Nineteen Years in Polynesia, p. 294 sqq.]

[Footnote 180: Wallace, Malay Archipelago, p. 149 sq.]

[Footnote 181: Sherwill, 'Tour through the Rájmahal Hills,' in Jour. Asiatic Soc. Bengal, xx. 568.]

[Footnote 182: van Gennep, Tabou et totémisme à Madagascar, p. 184 sqq.]

[Footnote 183: Lang, in Steinmetz, Rechtverhältnisse, p. 263.]

[Footnote 184: Volkens, op. cit. p. 254.]

[Footnote 185: Junker, _Travels in Africa during the Years 1882-1886_, p. 86.]

[Footnote 186: Decle, op. cit. p. 77.]

[Footnote 187: Livingstone, Missionary Travels, p. 285.]

[Footnote 188: Robertson Smith, Religion of the Semites, p. 164, n. 1.]

[Footnote 189: Ibid. p. 336, n. 1.]

[Footnote 190: Pierotti, Customs and Traditions of Palestine, p. 95 sq. According to Roman sources (Digesta, xlvii. 11. 9), there was in the province of Arabia an offence called [Greek: skopelismo/s], which consisted in laying stones on an enemy's ground as a threat that if the owner cultivated the land "malo leto periturus esset insidiis eorum, qui scopulos posuissent"; and so great was the fear of such stones that nobody would go near a field where they had been put.]

[Footnote 191: Gomara, Primera parte de la historia general de las Indias, ch. 79 (Biblioteca de autores españoles, xxii. 206).]

[Footnote 192: von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 37 sq.]

[Footnote 193: Ibid. p. 34.]

[Footnote 194: Cf. van Gennep, op. cit. p. 185 (natives of Madagascar). It was an ancient Roman usage to inter the dead in the field belonging to the family, and in the works of the elder Cato there is a formula according to which the Italian labourer prayed the manes to take good care against thieves (Fustel de Coulanges, op. cit. p. 75). Cicero says (Pro domo, 41) that the house of each citizen was sacred because his household gods were there.]

[Footnote 195: Rowley, Africa Unveiled, p. 174. Bastian, Afrikanische Reisen, p. 78 sq. 3 Nassau, Fetichism in West Africa, p. 85. Cf. Schneider, Die Religion der afrikanischen Naturvölker, p. 230. If we knew the ceremonies with which magicians transform ordinary material objects into fetishes, we might perhaps find that they charge them with curses. Dr. Nassau says (op. cit. p. 85):--"For every human passion or desire of every part of our nature, for our thousand necessities or wishes, a fetich can be made, its operation being directed to the attainment of one specified wish." See also Schultze, Der Fetischismus, p. 109.]

We have previously noticed another method of charging a curse with magic energy, namely, by giving it the form of an appeal to a supernatural being.[196] So also spirits or gods are frequently invoked in curses referring to theft. On the Gold Coast, "when the owner of land sees that some one has been making a clearing on his land, he cuts the young inner branches of the palm tree and hangs them about the place where the trespass has been committed. As he hangs each leaf he says something to the following effect: 'The person who did this and did not make it known to me before he did it, if he comes here to do any other thing, may fetish Katawere (or Tanor or Fofie or other fetish) kill him and all his family.'"[197] In Samoa, in the case of a theft, the suspected persons had to swear before the chiefs, each one invoking the village god to send swift destruction if he had committed the crime; and if all had sworn and the culprit was still undiscovered, the chiefs solemnly made a similar invocation on behalf of the {67} thief.[198] The Hawaiians seem likewise to have appealed to an avenging deity in certain cursing ceremonies, which they performed for the purpose of detecting or punishing thieves.[199] In ancient Greece it was a custom to dedicate a lost article to a deity, with a curse for those who kept it.[200] Of the Melanesian taboo, again, Dr. Codrington observes that the power at the back of it "is that of the ghost or spirit in whose name, or in reliance upon whom, it is pronounced."[201] In Ceylon, "to prevent fruit being stolen, the people hang up certain grotesque figures around the orchard and dedicate it to the devils, after which none of the native Ceylonese will dare even to touch the fruit on any account. Even the owner will not venture to use it till it be first liberated from the dedication."[202] On the landmarks of the ancient Babylonians, generally consisting of stone pillars in the form of a phallus, imprecations were inscribed with appeals to various deities. One of these boundary stones contains the following curse directed against the violator of its sacredness:--"Upon this man may the great gods Anu, Bêl, Ea, and Nusku, look wrathfully, uproot his foundation, and destroy his offspring"; and similar invocations are then made to many other gods.[203]

[Footnote 196: Supra, i. 564.]

[Footnote 197: Jour. African Soc. 110 xviii. January, 1906, p. 203.]

[Footnote 198: Turner, Samoa, p. 19. Idem, Nineteen Years in Polynesia, p. 292 sq.]

[Footnote 199: Jarves, History of the Hawaiian Islands, p. 20.]

[Footnote 200: Rouse, Greek Votive Offerings, p. 339.]

[Footnote 201: Codrington, op. cit. p. 215.]

[Footnote 202: Percival, Account of the Island of Ceylon, p. 198.]

[Footnote 203: Trumbull, The Threshold Covenant, p. 166 sq. Hilprecht, quoted ibid. p. 167 sqq.]

Now we can understand why gods so frequently take notice of offences against property. They are invoked in curses uttered against thieves; the invocation in a curse easily develops into a genuine prayer, and where this is the case the god is supposed to punish the offender of his own free will. Besides, he may be induced to do so by offerings. And when often appealed to in connection with theft, a supernatural being may finally come to be looked upon as a guardian of property. This, for instance, I take to be the explanation of the belief prevalent among the Berbers {68} of [H.]a[h.]a, in Southern Morocco, that some of the local saints punish thieves who approach their sanctuaries, even though the theft was committed elsewhere; being constantly appealed to in oaths taken by persons suspected of theft, they have become the permanent enemies of thieves. We can, further, understand why in some cases certain offences against property have actually assumed the character of a sacrilege, even apart from such as are committed in the proximity of a supernatural being. Curses are sometimes personified and elevated to the rank of divine agents; this, as we have seen, is the origin of the Erinyes of parents, beggars, and strangers, and of the Roman divi parentum and dii hospitales; and this is also in all probability the origin of the god Terminus.[204] Or the curse may be transformed into an attribute of the chief god, not only because he is frequently appealed to in connection with offences of a certain kind, but also because such a god has a tendency to attract supernatural forces which are in harmony with his general nature. This explains the origin of conceptions such as Zeus [Greek: o(/rios] and Jupiter Terminalis, as well as the extreme severity with which Yahweh treated the removal of landmarks. In all these cases there are indications of a connection between the god and a curse. Apart from other evidence to be found in Semitic antiquities, there is the anathema of Deuteronomy, "Cursed be he that removeth his neighbour's landmark."[205] That the boundary stones dedicated to Zeus [Greek: o(/rios] were originally charged with imprecations appears from a passage in Plato's 'Laws' quoted above,[206] as also from inscriptions made on them.[207] The Etruscans cursed anyone who should touch or displace a boundary mark:--Such a person shall be condemned by the gods; his house shall disappear; his race shall be extinguished; his limbs shall be covered with ulcers and waste away; his land shall no longer produce {69} fruits; hail, rust, and the fires of the dog-star shall destroy his harvests.[208] Considering the important part played by blood as a conductor of imprecations, it is not improbable that the Roman ceremony of letting the blood of a sacrificial animal flow into the hole where the landmark was to be placed[209] was intended to give efficacy to a curse. In some parts of England a custom of annually "beating the bounds" of a parish has survived up to the present time, and this ceremony was formerly accompanied by religious services, in which a clergyman invoked curses on him who should transgress the bounds of his neighbour, and blessings on him who should regard the landmarks.[210]

[Footnote 204: Cf. Festus, op. cit. 'Termino':--"Numa Pompilius statuit eum, qui terminum exarasset, et ipsum, et boves sacros esse."]

[Footnote 205: Deuteronomy, xxvii. 17. Cf. Genesis, xxxi. 44 sqq.]

[Footnote 206: Plato, Leges, viii. 843: ". . . [Greek: ê)\n smikron li/thon o(ri/zonta philai/n kai\ e)/chthran e)/norkon para\ theô=n.]"]

[Footnote 207: Xenophon, Anabasis, v. 3. 13. Hermann, Disputatio de terminis apud Græcos, p. 11.]

[Footnote 208: Rei agrariæ auctores legesque variæ, edited by G[oe]sius, p. 258 sq.]

[Footnote 209: Siculus Flaccus, 'De conditionibus agrorum,' in Rei agrariæ auctores, p. 5.]

[Footnote 210: Dibbs, 'Beating the Bounds,' in _Chambers's Edinburgh Journal_, N.S. xx. (1853) 49 sqq. Trumbull, _The Threshold Covenant_, p. 174 sq.]

The practice of cursing a thief may possibly even be at the bottom of the belief of some savages that such a person will be punished after death. In a following chapter we shall notice instances where the efficacy of a curse is supposed to extend beyond the grave. But we shall also find other reasons for savage doctrines of retribution in the world to come. In the cases referred to above it is not expressly said that the post mortem punishment of the thief is inflicted by a god.

* * * * *

I have here only dealt with rules relating to property which have been recognised by custom or law. But the established principles of ownership have not always been admitted to be just: in the civilised countries of the West they have called forth an opposition which is rapidly gaining in strength. The limited scope of the present work does not allow me to attempt a detailed account of this movement, with its variety of arguments and its multitudinous schemes of reform. The main reasons for complaint are:--first, that our actual law of property does not ensure to every labourer the whole produce of his labour; secondly, that it does not provide for every want {70} a satisfaction proportionate to the available means. However much the opinions of the different schools of socialists may vary, every socialist organisation of property aims either at guaranteeing to the working-classes the entire product of their industry, or at reducing to just proportions individual needs and existing means of satisfaction by recognising the claim of every member of society to the commodities and services necessary to support existence, in preference to the satisfaction of the less pressing wants of others.[211] These aims are greatly hampered by the present system, in which land and capital are the property of private individuals freely struggling for increase of wealth, and especially by the legally recognised existence of unearned income[212]--the "rent" of the Saint-Simonians, the "surplus value" (Mehrwert) of Thompson and Marx,--for which the favoured recipient returns no personal equivalent to society, and which he is able to pocket because the wage labourer receives in money-wages less than the full value of the produce of his work. We have here a conflict between different principles of acquisition. Both the rule that the owner of a thing also owns what results from it, and the law of inheritance, leading as they do to unearned income, are intruding upon the principle of labour as a source of property. They, moreover, interfere with the right to subsistence, which in some measure, though often insufficiently, is recognised in all human societies;[213] for, as Marx observed, the accumulation of wealth at one pole means the accumulation of misery at the opposite pole.[214] This conflict between different principles or rights, all of which have deep foundations in human nature and the conditions of social life, has been brought about by certain {71} facts inherent in progressive civilisation. In simple societies the unearned income is small, because no fortunes exist, and the wants of those who are incapable of earning their own livelihood are provided for by the system of mutual aid. Progress in culture, on the other hand, has been accompanied by a more unequal distribution of wealth, and also by a decrease of social solidarity as a result of the increase and greater differentiation of the social unit. The unearned income has grown larger, the disproportion between the returns on capital and the reward for labour has in many cases become enormous, and hand in hand with the opulence of some goes the destitution of others. At the same time the injustice of prerogatives based on birth or fortune is keenly felt, the dignity of labour is recognised, and the working-classes are every day becoming more conscious both of their power and their rights. All this has resulted in a strong and wide-spread conviction that the actual law of property greatly differs from the ideal law. But much struggle will no doubt be required to bring them in harmony with one another. The present rights of property are supported not only by personal interests, but also by a deep-rooted feeling, trained in the school of tradition, that it would be iniquitous of the State to interfere with individuals' long-established claims to use at their pleasure the objects of wealth. The new scheme, on the other hand, derives strength from the fact that it aims at rectifying legal rights in accordance with existing needs, and that it lays stress on a method of acquisition which more than any other seems to appeal to the natural sense of justice in man. We are utterly unable to foresee in detail the issue of this struggle. But that the law of property will sooner or later undergo a radical change must be obvious to every one who realises that, though ideas of right and wrong may for some time outlive the conditions from which they sprang, they cannot do so for ever.

[Footnote 211: See Menger, _Right to the whole Produce of Labour_, p. 5 sqq., Goos, op. cit. ii. 61.]

[Footnote 212: The term "unearned income" (_arbeitsloses Einkommen_) has been proposed by Menger (op. cit. p. 3).]

[Footnote 213: See supra, ch. xxiii., vol. i. 526 sqq. Among the Eskimo about Behring Strait (Nelson, in Ann. Rep. Bur. Ethn. xviii. 294) and the Greenlanders (Rink, Eskimo Tales, p. 29 sq.), if a man borrows an article from another and fails to return it, the owner is not entitled to claim it back, as they consider that when a person has enough property to enable him to lend some of it he has more than he needs.]

[Footnote 214: Marx, Capital, p. 661.]