Chapter 77

27Cf.Post,Afrikanische Jurisprudenz, ii. 167.

28Morgan,League of the Iroquois, p. 326. Dorsey, ‘Omaha Sociology,’ inAnn. 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, inJour. 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, inZeitschr. f. vergl. Rechtswiss.v. 71sqq.Post,Entwicklungsgeschichte des Familienrechts, p. 283sqq.Idem,Grundriss der ethnol. Jurisprudenz, i. 343sq.de Laveleye-Bücher,Das Ureigenthum, ch. xiv. p. 270sqq.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).

29von Martius,Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 35sq.(Brazilian aborigines). Steinmetz,Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kohler, ‘Banturecht in Ostafrika,’ inZeitschr. f. vergl. Rechtswiss.xv. 48 (natives of Lindi). Trollope,op. cit.ii. 302 (Kafirs). Post,Afrikanische Jurisprudenz, ii. 169.Idem,Entwicklungsgeschichte des Familienrechts, p. 285sq.Schurtz, inZeitschrift 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,’ inRevue coloniale internationale, v. 484).

30Panchatantram, iii. p. 15.

31Mademba, in Steinmetz,Rechtsverhältnisse, p. 91.

32Dalager,op. cit.p. 27.

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

34Hunter,Roman Law, p. 265sqq.Maine,Ancient Law, p. 284. Girard,Manuel élémentaire de droit romain, p. 296sqq.Puchta,Cursus der Institutionen, ii. 202sqq.

35Gautama, xii. 39.Vasishtha, xvi. 16sq.Laws of Manu, viii. 147sq.See alsoPanchatantram, iii. p. 15; Benfey’s translation, vol. ii. 233.

36Brihaspati, 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. 91sqq., and Kohler,Altindisches Prozessrecht, p. 55sq.

37Supra,i. 637sqq.

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,—38argues 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.”39This 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. Evenamong 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.40If a Greenlander finds a dead seal with a harpoon in it, he keeps the seal, but restores the harpoon to its owner.41Among 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.42In various parts of Africa he who has dug a well has a right to the exclusive disposal of it.43In 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.44The 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.”45In 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.46In old Hindu law-books the performance of labour is specified as one of the lawful modes of acquiring property.47According 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.48Thus, though cultivation does not give a right to the land, it gives a right to the produceof 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

38Cf.Girard,op. cit.p. 316.

39Grotius,op. cit.ii. 3. 3.

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

41Dalager,op. cit.p. 25.

42Nansen,First Crossing of Greenland, ii. 299.

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

44Kingsley,West African Studies, p. 366.

45Bourke,Snake-dance of the Moquis, p. 260sq.

46Kloss,In the Andamans and Nicobars, p. 240.

47Gautama, x. 42.Laws of Manu, x. 115.

48Nârada, xi. 32sq.

49Colenso,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, inJour. Anthr. Inst.xix. 199sqq.Post,Afrikanische Jurisprudenz, ii. 172. Schurtz, inZeitschr. f. Socialwissenschaft, iii. 250sq.

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;50and, to take another example, the power of testation, if recognised at all, is often subject to restrictions.51The 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.52Among 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.53With 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.”54Even in Rome bequest seems not to have been permitted in pre-historic times, and afterwards alegitima portiowas compulsorily reserved for each child.55Such is still the law of some continental nations.

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

51Post,Grundriss der ethnol. Jurisprudenz, ii. 200sqq.Idem,Afrikanische Jurisprudenz, ii. 19.

52Sarbah,op. cit.p. 85.

53Polack,op. cit.ii. 69.

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

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

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,56there 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;57but 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.58Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance59from 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.60The 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.61Sometimes the rules of inheritance make little or no distinction between men and women;62sometimes a decided preference is given to themen;63sometimes the women inherit nothing;64whereas in a few exceptional cases the women are the only inheritors.65Among 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.66Very frequently the eldest son,67or, where the maternal system of descent prevails infull, the eldest uterine brother68or the eldest son of the eldest uterine sister,69is the chief or even the only heir. But there are also several instances in which this privilege is granted to the youngest son.70Thus, among the Hos of India he apparently inherits all the property of his father;71among 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;72among the Eskimo of Behring Strait, “if there are several sons the eldest gets the least, the most valuable things being given to the youngest.”73In 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;74and 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.75Among the Kukis, in default of legitimate issue, a natural son succeeds to his father’s property before all other male relations;76among the Bódo and Dhimáls sons by concubinage or adoption get equal shares with sons born in wedlock;77the 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.78Among other uncivilised peoples,again, slaves cannot inherit at all,79and where they are allowed to possess property the master is sometimes the legitimate heir of his slave.80

56Ellis,Polynesian Researches, iii. 115sq.(Tahitians). Wilkin, inReports 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, inJour. Anthr. Inst.xxv. 224. Post,Grundriss der ethnol. Jurisprudenz, ii. 199.

57Seeinfra, onRegard for the Dead.

58Dargun, inZeitschr. f. vergl. Rechtswiss.v. 99sqq.

59Ibid.p. 102sq.

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

61See Westermarck,op. cit.p. 97sqq.

62Kloss,op. cit.p. 241 (Nicobarese). Wilkin, inRep. Cambridge Anthr. Exped.v. 285sq.(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.

63Sarbah,Fanti Customary Laws, p. 87. Post,Afrikanische Jurisprudenz, ii. 13sq.Idem,Entwicklungsgeschichte des Familienrechts, p. 298sq.Idem,Grundriss der ethnol. Jurisprudenz, i. 222sqq.Among several uncivilised peoples landed property descends exclusively (Macpherson,Memorials of Service in India, p. 62 [Kandhs]; Sumner, inJour. Anthr. Inst.xxxi. 79 [Jakuts]; Curr,The Australian Race, i. 64; Johnston,Uganda Protectorate, ii. 694; Post,Entwicklungsgeschichte des Familienrechts, p. 298sq.;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.

64Castrén,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. † (Gonds). Soppitt,Account of the Kuki-Lushai Tribes, p. 16; Stewart, ‘Notes on Northern Cachar,’ inJour. 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, inJour. 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. 296sqq.Idem,Grundriss der ethnol. Jurisprudenz, i. 218sq.

65Hamy, inBull. 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.

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

67Dalager,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, 73sq.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. 12sqq.Idem,Grundriss der ethnol. Jurisprudenz, i. 217, 218, 220sq.

68Proyart, ‘History of Loango,’ in Pinkerton,Collection of Voyages and Travels, xvi. 571.

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

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

71Tickell, ‘Memoir on the Hodésum,’ inJour. Asiatic Soc. Bengal, ix. pt. ii. 794, n.*

72Risley,op. cit.p. 203.Cf.Mason, inJour. Asiatic Soc. Bengal, xxxvii. pt. ii. 142 (Karens).

73Nelson, inAnn. Rep. Bur. Ethn.xviii. 307.

74Dalager,op. cit.p. 33.

75Denham and Clapperton, quoted in Spencer’sDescriptive Sociology, African Races, p. 8.

76Stewart, inJour. Asiatic Soc. Bengal, xxiv. 640.

77Hodgson,Miscellaneous Essays, i. 122.

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

79Nicole, 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.

80Munzinger,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.81In China women only inherit in the very last resort, failing all male relatives.82Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit;83but the later law conferred on daughters the right of heirship in the absence of sons.84The 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;85but according to the old law of Medina women could not inherit at all.86Of 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.87In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved.88In Attic law sons excludeddaughters from succession,89and the same was the case among the Scandinavian peoples still in the later Middle Ages.90In England women are even to this day postponed to men in the order of succession to real property.91Special privileges in the division of the father’s property were granted to the eldest son by the Hebrews92and Hindus,93and traces of primogeniture are met with in ancient Greek legislation.94In the history of English law we find not only primogeniture, but ultimogeniture as well.95As 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.96Among the Hebrews the sons of concubines had a right of inheritance,97but whether on an equality with the other sons we do not know.98According 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.99In Hindu legislation the legitimatesons 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.100The 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.101In 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.102Strangers 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 thisdroit 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.103Indeed, 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 ofaubaineas being contrary to the principle of a human brotherhood.104Later 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.105In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.106

81See Westermarck,op. cit.p. 104.

82Alabaster, ‘Law of Inheritance,’ inChina Review, v. 193. ‘Inheritance and “Patria Potestas” in China,’ibid.v. 406.

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