CHAPTER XXIX

269Supra,i. 637sqq.

270Mindeleff, ‘Navaho Houses,’ inAnn. Rep. Bur. Ethn.xvii. 485.

271Shooter,Kafirs of Natal, p. 84.

272Wied-Neuwied,Travels in the Interior of North America, p. 350.

273Buchanan, quoted by Hodgson,Miscellaneous Essays, i. 110.

274Rein,Japan, p. 424.

275Jolly, ‘Recht und Sitte,’ in Buehler,Grundriss der indo-arischen Philologie, ii. 78, 79, 87sqq.Kohler, ‘Indisches Ehe- und Familienrecht,’ inZeitschr. f. vergl. Rechtswiss.iii. 424sqq.

276Benzinger, ‘Law and Justice,’ in Cheyne and Black,Encyclopædia Biblica, iii. 2724.

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

278Hunter,Roman Law, p. 295sqq.Maine,Early History of Institutions, p. 317sqq.Friedlaender,Darstellungen aus der Sittengeschichte Roms, i. 252. Girard,op. cit.p. 164.

279Supra,i. 653sq.

280Maine,Ancient Law, p. 157sqq.

281Lecky,Democracy and Liberty, ii. 536sq.Cleveland,Woman under the English Law, p. 279sqq.For the laws of other European countries see Bridel,op. cit.p. 61sqq., 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.282It 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,283it 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.284In Africa, in particular, it is a common thing for slaves to have private property;285in Southern Guinea there are slaves who are wealthier than their masters.286In 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.287So also in ancient Mexico the slave was allowed a certain amount of time to labour for his own advantage.288A Babylonian slave had hispeculium, of which, at least under normal circumstances, he was in safe possession.289In Rome anythinga 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 hispeculium.290In the Middle Ages slaves, and in many instances serfs also, were, strictly speaking, destitute of proprietary rights.291In England it was held that whatever was acquired by a villein was acquired by his lord. At the same time his chattels did noteo ipsolapse 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.292In the British and French colonies and the American Slave States the negro slaves had no legal rights of property in things real or personal.293According 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;294and in other States they were expressly forbidden to suffer their slaves to hire out themselves.295In some places, however, negro slaves might hold apeculium. In Arkansas a statute was passed granting masters the right of allowing their slaves to do work on their own behalf on Sundays;296and in the British colonies Sunday was made a marketing day for the slaves so as to encourage them to labour for themselves.297In the Civil Code of Louisianait is said that the slave “possesses nothing of his own, except hispeculium, that is to say, the sum of money, or movable estate, which his master chooses he should possess.”298The 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

282Post,Grundriss der ethnol. Jurisprudenz, i. 370, 381. Holmberg, inActa Soc. Scientiarum Fennicæ, iv. 330sq.(Thlinkets). Kohler, ‘Recht der Marschallinsulaner,’ inZeitschr. f. vergl. Rechtswiss.xiv. 428sq.Volkens,op. cit.p. 249 (Wadshagga). Lang, in Steinmetz,Rechtsverhältnisse, p. 241 (Washambala).

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

284Scott Robertson,op. cit.p. 100.

285Kingsley,West African Studies, p. 366. Ellis,Ew̔e-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, inJour. Anthr. Inst.xxv. 230 (Wabondei). Munzinger,Die Sitten und das Recht der Bogos, p. 43.Idem,Ostafrikanische Studien, p. 309sq.(Beni Amer).

286Wilson,Western Africa, p. 271.

287Supra,i. 677.

288Bancroft,op. cit.ii. 221.

289Kohler and Peiser,Aus dem babylonischen Rechtsleben, i. i. See alsosupra,i. 684.

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

291Supra,i. 697. Guérard,Cartulaire de l’Abbaye de Saint-Père de Chartres, i. p. xlvii.

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

293Stephen,Slavery of the British West India Colonies, i. 58.Code Noir, Édit du mois de Mars 1685, art. 28, p. 42sq.; Édit donné au mois de Mars 1724, art. 22, p. 295sq.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. 89sqq.

294Prince,Digest of the Laws of Georgia, p. 788.

295Caruthers 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. 1480sq.

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

297Edwards,History of the British West Indies, ii. 181.

298Morgan,Civil Code of Louisiana, art. 175.

299Stephen,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.300The soil, in particular, is regarded as his.301But even autocrats are tied by custom,302and in practice the right of ownership is not denied to their subjects.

300Butler,Travels in Assam, p. 94 (Kukis). Beecham,Ashantee, p. 96. Spencer,Descriptive Sociology, African Races, p. 12 (Abyssinians). Decle,op. cit.p. 70sqq.(Barotse). Kidd,The Essential Kafir, p. 353. Ellis,History of Madagascar, i. 342. Post,Afrikanische Jurisprudenz, ii. 171. Percy Smith, ‘Uea, Western Pacific,’ inJour. 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, inJour. 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. 112sq.Trollope,South Africa, ii. 303. Holden,Past and Future of the Kaffir Races, p. 338).

301Waitz,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. 170sq.; 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).

302Supra,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 differentdegrees 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.

ACCORDINGto an old theory set forth by Roman jurists, and afterwards much emphasised by Grotius,1the 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.2The 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;3by the nomad’s or settler’s right to the previously unoccupied place wherehe has pitched his tent or built his dwelling;4by the agriculturist’s right to the land of which he has taken possession by cultivating the soil;5by a tribe’s or community’s right to the territory which it has occupied.6Among 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.”7Among the Herero, “notwithstanding the loose notions generally entertained by them as tomeumandtuum, 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.”8Again, 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.”9In Greenland anyone picking up piecesof 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.10But 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,11whilst in other cases he at any rate has a claim to part of its value.12Among 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.”13The 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.”14Among 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;15and among the Tunguses whoever finds a beast in another man’s trap may take half the meat.16Among 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 veryvillage.”17We 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

1Grotius,De jure belli et pacis, ii. 3. 3.

2Locke,Treatises of Government, ii. 5. 27sqq., p. 200sqq.Thiers,De la propriété, p. 94sqq.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.”

3Curr,Recollections of Squatting in Victoria, p. 265 (Bangerang tribe). Murdoch, ‘Ethnol. Results of the Point Barrow Expedition,’ inAnn. Rep. Bur. Ethn.ix. 428 (Point Barrow Eskimo). Ahlqvist, ‘Unter Wogulen und Ostjaken,’ inActa Soc. Scientiarum Fennicæ, xiv. 166 (Voguls). Steinmetz,Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Post,Afrikanische Jurisprudenz, ii. 162sq.Andree, ‘Ethnogr. Bemerkungen zu einigen Rechtsgebräuchen,’ inGlobus, xxxviii. 287. Among some Indiantribesof 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, inAnn. Rep. Bur. Ethn.iii. p. lvii.).

4von 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).

5Thomson,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, inJour. 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,’ inZeitschr. f. vergl. Rechtswiss.v. 71sqq.Post,Entwicklungsgeschichte des Familienrechts, p. 283sqq.Idem,Grundriss der ethnol. Jurisprudenz, i. 342sqq.See alsoinfra,p. 39sq.

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

7Macpherson,Memorials of Service in India, p. 62.

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

9Mathew, in Curr,The Australian Race, iii. 162. On the finder’s right to wild honey see Munzinger,Die Sitten und das Recht der Bogos, p. 70; Steinmetz,Rechtsverhältnisse, p. 53 (Banaka and Bapuku); Post,Afrikanische Jurisprudenz, ii. 165; Hyde Clarke, ‘Right of Property in Trees on the Land of Another,’ inJour. Anthr. Inst.xix. 201.

10Dalager,op. cit.p. 23. Rink,Tales and Traditions of the Eskimo, p. 28.

11Nicole, in Steinmetz,Rechtsverhältnisse, p. 137 (Diakité-Sarracolese). Beverley,ibid.p. 216 (Wagogo). Walter,ibid.p. 395 (natives of Nossi-Bé and Mayotte). Sorge,ibid.p. 423 (Nissan Islanders).

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

13Charlevoix,Voyage to North-America, ii. 26sq.

14Leslie,Among the Zulus and Amatongas, p. 202.

15Schoolcraft,Archives of Aboriginal Knowledge, v. 177.

16Ratzel,History of Mankind, ii. 226.

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

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.”19But 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”;20or, 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.”21Among many peoples an animal belongs entirely or chiefly to the person who first wounded it,however slightly,22or who first saw it,23even 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;24if a bear is killed, it belongs to him who first discovered it;25and when a whale is taken, the very spectators have an equal right to it with the harpooners.26

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

20Of 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, inZeitschr. f. Socialwissenschaft, iii. 357sqq.

21Colenso,op. cit.p. 31. See also Polack,op. cit.ii. 82.

22Dalager,op. cit.p. 24sq.(Greenlanders). Boas, ‘Central Eskimo,’ inAnn. 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. 290sq.(Woitos).Laws of Manu, ix. 44. Post,Afrikanische Jurisprudenz, ii. 163.Idem,Grundriss der ethnol. Jurisprudenz, ii. 707sq.Andree, inGlobus, xxxviii. 287sq.

23Boas, ‘Central Eskimo,’ inAnn. Rep. Bur. Ethn.vi. 582. Ratzel,op. cit.ii. 227 (Asiatic Hyperboreans). See also Semper,Die Palau-Inseln, p. 86.

24Dalager,op. cit.p. 24.

25Rink,Tales and Traditions of the Eskimo, p. 29.

26Dalager,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;27and among agricultural savages the cultivator frequently loses his right to the field when he makes no more use of it28—though, on the other hand, instances are not wanting in which cultivation gives proprietaryrights of a more lasting nature.29Loss 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.30Among the natives of the Sansanding States the right to a house is lost by its being abandoned.31In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal.32So 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.33According 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.34This principle, known to the Romans asusucapio, 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 enjoyedby 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;35but it seems that later on the period of prescription was extended to thirty years or even more.36In 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

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