Chapter 75

201Georgi,op. cit.iii. 183.

202Ibid.iii. 170. Krasheninnikoff,op. cit.p. 232.

203Hislop,op. cit.p. 1.

204Marsden,op. cit.p. 389.

205Crawfurd,op. cit.i. 72.

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

207Williams and Calvert,op. cit.p. 110.

208Thomson,Savage Island, p. 94.

209von Kotzebue,op. cit.iii. 255.

210Lumholtz,Among Cannibals, p. 148.

211Chauncy, in Brough Smyth,op. cit.ii. 278sq.

Among the For tribe of Central Africa “it is not consideredright to rob strangers, but the chiefs wink at this offence, and the stranger runs but a poor chance of obtaining justice.”212Of 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.”213When 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——.”214Among 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.”215The Wafiomi216and Shilluk217regard 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 Kunáma218and the inhabitants of Saraë219consider 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.220Among 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.”221Indeed, the Arab is proud of robbing his enemies, and of bringing away by stealth what he could not have taken by open force.222The 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

212Felkin, ‘Notes on the For Tribe of Central Africa,’ inProceed. Roy. Soc. Edinburgh, xiii. 234.

213Caillié,op. cit.i. 353.Cf.Mungo Park,op. cit.p. 239sq.

214Macdonald,Africana, i. 182.

215Hinde,op. cit.p. 104.Cf.Johnston,Kilima-njaro Expedition, p. 419.

216Baumann,Durch Massailand, p. 179.

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

218Munzinger,Ostafrikanische Studien, p. 531.

219Ibid.p. 386.

220Kobelt,Reiseerinnerungen aus Algerien und Tunis, p. 223.

221Blunt,op. cit.ii. 204sq.

222Burckhardt,Bedouins and Wahábys, p. 90.

223Kovalewsky,Coutume contemporaine, p. 343.

Similar views prevailed among the ancient Teutons. “Robberies,” says Caesar, “which are committed beyondthe 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.”224The 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.”226In 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.227Throughout the Middle Ages all Europe seems to have tacitly agreed that foreigners were created for the purpose of being robbed.228In 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.229In 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.230In 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 toprovide a part of it.231The 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;232and in some European countries the laws even permitted the inhabitants of maritime provinces to reduce to servitude people who were shipwrecked on their coast.233The 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.234In 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,235whereas the robbing of shipwrecked infidels was not prohibited.236But for a long time these endeavours were far from being successful;237and it was even argued that, as shipwrecks were punishments sent by God, it was impious to be merciful to the victims.238

224Caesar,De bello Gallico, vi. 23.

225Tylor, inContemporary Review, xxi. 716.

226Stewart,Sketches of the Character, &c., of the Highlanders of Scotland, p. 42sq.

227Ancient Laws of Ireland, i. 57.

228Cf.Marshall,International Vanities, p. 285.

229Beaumanoir,Les coutumes du Beauvoisis, xlv. 19, vol. ii. p. 226.

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

231See Marshall,International Vanities, p. 291sq.

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

233Du Cange,op. cit.iv. 23sq.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. 18sq.

234Ancient Sea-Laws of Oleron, art. 30, p. 11.

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

236Laurent,Études sur l’histoire de l’humanité, vii. 323, 413 n. 3. von Eicken,op. cit.p. 570.

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

238von Eicken,op. cit.p. 570sq.

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”;239and in the practice of his time devastation wasconstantly used independently of any immediate military advantage accruing from it.240In 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,241Vattel,242and others;243and even at the beginning of the nineteenth century instances of devastation of a not necessary kind occasionally occurred.244In later days opinion has decisively laid down that the measure of permissible devastation is to be found in the strict necessities of war.245Yet 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.246Under 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.247Subsequently this extreme right has been tempered by usage, and in a few directions it has disappeared.248Thus 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,249is favoured by present opinion and usage,250and pillage by the soldiers of an invading army is expressly forbidden.251At the same time there is unfortunately nodoubt that in all wars pillage does continue with impunity;252and 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.253Moreover, 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.254Military contributions and requisitions are levied upon the inhabitants of the hostile territory.255And 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

239Grotius,De jure belli et pacis, iii. 12. 1. 3.

240Hall,Treatise on International Law, p. 533.

241Wolff,Jus Gentium, §823, p. 300.

242Vattel,Le droit des gens, iii. 9. 167, vol. ii. 76sq.

243Hall,op. cit.p. 533sq.

244Ibid.p. 534sq.

245Ibid.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 Haye1899, ‘Règlement concernant les lois et coutumes de la guerre sur terre,’ art. 23g, pt. i. 245.

246Hall,op. cit.p. 536sq.

247Grotius,op. cit.iii. 6. 2. Hall,op. cit.pp. 417, 438.

248Hall,op. cit.p. 419sqq.

249Bernard, ‘Growth of Laws and Usages of War,’ inOxford Essays, 1856, p. 109.

250Conférence 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.

251Conférence 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.

252Maine,International Law, p. 199. Halleck,International Law, ii. 73, note.

253Halleck,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.

254Halleck,op. cit.ii. 73sq.Wheaton,op. cit.p. 467.

255Wheaton,op. cit.p. 467. Hall,op. cit.p. 427sqq.Conférence de La Haye, ‘Règlement concernant la guerre sur terre,’ art. 49, 52, pt. i. 248.

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

Not only does the respect in which the right of property is held vary according to thestatusof 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,257and theKandhs of India.258In 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.”259But according to the standard commentators this only means that the persons mentioned are unable to dispose of their property independently;260and 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.261In Rome thepeculium, 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 theirpeculium.262Even 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

257Sarbah,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,’ inZeitschr. f. Ethnol.vi. 39).

258Macpherson,Memorials of Service in India, p. 62.

259Laws of Manu, viii. 416. See alsoNárada, v. 41.

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

261Laws of Manu, ix. 206.

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

263Bridel,Le droit des femmes et le mariage, p. 156.

Among some uncivilised peoples women are said to be incapable of holding property;264but 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;265and among the blacks of Australia Mr. Curr has often heard husbands ask permission of their wives to take something out of their bags.266There are instances in which the property owned by awoman is by marriage transferred to her husband;267but more commonly, it seems, the wife remains mistress of her own property during the existence of the marriage relation.268Among 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.269Among the Navahos of New Mexico everything, except horses and cattle, practically belongs to the married women.270Among 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.271The Mandans of North America have a custom that all the horses which a young man steals or captures in war belong to his sisters.272Among the Koch of India, we are told, “the men are so gallant as to have made over all property to the women.”273As 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.274We have already noticed the disabilities in point of ownership to which women were once subject in India; but the development ofstrīdhana, orpeculiumof the female members of a family, shows that they gradually became less dependent on their husbands inmatters relating to property.275Among the ancient Hebrews women appear to have been in every respect regarded as minors so far as proprietary rights were concerned.276In Rome a marriage withconventio 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.277Later on marriage withoutmanusbecame the ordinary Roman marriage, and this, together with the downfall of the ancientpatria 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.278But, 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;279and 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.280In 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’sProperty Act of 1882 that a full right to their own property was given to English wives.281

264Nassau,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).

265Snow, ‘Wild Tribes of Tierra del Fuego,’ inJour. Ethn. Soc. London, N.S. i. 264.

266Curr,The Australian Race, i. 66.

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

268von 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,’ inJour. 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. 292sqq.

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