Chapter 78

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

84Numbers, 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).

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

86Robertson Smith,Kinship and Marriage in Early Arabia, pp. 65, 117.

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

88Jolly,loc. cit.pp. 83, 86. Kohler, ‘Indisches Ehe- und Familienrecht,’ inZeitschr. f. vergl. Rechtswiss.iii. 424sqq.Leist,Alt-arisches Jus Civile, ii. 48.

89Gans,op. cit.i. 338, 341. Gide,op. cit.p. 79.

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

91Renton,Encyclopædia of the Laws of England, xi. 75.

92Deuteronomy, xxi. 17. Gans,op. cit.i. 148. Benzinger, in Cheyne and Black,Encyclopædia Biblica, iii. 2729. Mr. Jacobs suggests (Studies in Biblical Archæology, p. 49sqq.) 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.

93Âpastamba, ii. 6. 14. 6, 12.Laws of Manu, ix. 114. Jolly,loc. cit.pp. 77, 82. Maine,Dissertations on Early Law and Custom, p. 89sq.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,’ inChina Review, v. 406;cf.Doolittle,Social Life of the Chinese, ii. 224; Davis,China, i. 343).

94Fustel de Coulanges,op. cit.p. 99.

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

96Parker, ‘Comparative Chinese Family Law,’ inChina Review, viii. 79. ‘Inheritance and “Patria Potestas” in China,’ibid.v. 406. Medhurst, ‘Marriage, Affinity, and Inheritance in China,’ inTrans. Roy. Asiatic Soc. China Branch, iv. 31. Simcox,Primitive Civilizations, ii. 351.

97Genesis, xxi. 10sqq.

98Benzinger, in Cheyne and Black,Encyclopædia Biblica, iii. 2729.

99Lane,Modern Egyptians, p. 118.

100Jolly,loc. cit.p. 85.Laws of Manu, ix. 179.

101Gide,op. cit.p. 567sqq.

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

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

104Demangeat,op. cit.p. 239.

105Ibid.p. 250sqq.

106Naturalisation 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 athing 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.107The 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.108In this connection we have further to notice the mode of acquisition which the Roman jurists calledaccessio. 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

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

108Sarbah,op. cit.p. 48.

109Hunter,Roman Law, p. 247sq.

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,110though its prevalence at the lower stages of civilisation has often been exaggerated.111But the whole question ofcommon ownership is too complicated and lies too much apart from our special subject to admit of a detailed treatment.

110Cf.Kovalewsky,Tableau des origines et de l’évolution de la famille et de la propriété, p. 51sqq.

111Dr. Dargun (inZeitschr. 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.112Sticklebacks show obvious signs of anger when their territory is invaded by other sticklebacks.113Birds defend their nests against the attacks of intruders.114The 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.115We 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.116Owing 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;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.117This 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;118Mr. 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;119Captain Gordon Stables’s cat, which had her place on the table at meals, never allowed any unauthorised interference with the viands.120In men such sympathetic resentment naturally develops into genuine moral disapproval.

112Spencer,Principles of Sociology, ii. 644.

113Supra,i. 22.

114Perty,Das Seelenleben der Thiere, p. 68.

115Darwin,Descent of Man, i. 125. See also Fischer, ‘Notes sur l’intelligence des singes,’ inRevue scientifique, xxxiii. 618.

116Compayré,L’évolution intellectuelle et morale de l’enfant, p. 312.

117Cf.Spencer,Principles of Sociology, ii. 634, 644; Dargun, inZeitschr. f. vergl. Rechtswiss.v. 79sq.; von Martius,Beiträge zur Ethnographie Amerika’s, i. 88, 90.

118Peschel,Races of Man, p. 240.

119Romanes, ‘Conscience in Animals,’ inQuarterly Journal of Science, xiii. 156, n.*

120‘Studies in Animal Life,’ inChambers’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.121This is undoubtedly the chief source of the rule of prescription,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;122whilst another argument adduced in favour of prescription is, that long possession generally implies labour and that labour gives ownership.123The 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.

121Cf.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,thatwe are always the most unwilling to part with.”

122Mill,Principles of Political Economy, i. 272.

123Thiers,op. cit.p. 103sqq.

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.124The 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.125But there arevarious 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;126and 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.127A 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 hisproperty;128and 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.129It 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

124Plato,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).

125It 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.*).

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

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

128Cf.Mill,op. cit.i. 274.

129Westermarck,History of Human Marriage, pp. 104, 111.

130Hume,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;131or because the women are less in need of property, being supported by their male relatives or husbands;132or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge;133or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars;134or for the purpose of preventing the estate from passing to another family or tribe.135The idea of keeping together the property of the house also largely is at the bottom of the rule of primogeniture.Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being.136On 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.137In 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.138But 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,139but partly also because he had remained with his father till his death,140or “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.”141The Wanyamwezi, again, justify the practice of leaving propertyto 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.”142Generally 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

131Cf.Campbell,Travels in South Africa, p. 520 (Kafirs).

132Cf.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,’ inChina Review, v. 406; Jolly,loc. cit.p. 83 (ancient Hindus); Post,Entwicklungsgeschichte des Familienrechts, p. 296sq.;Idem,Grundriss der ethnol. Jurisprudenz, i. 218sq.

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

134Cf.Cleveland,Woman under the English Law, p. 83.

135Shortland,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. 1sqq.

136Supra,i. 605,606,614. Gill,Life in the Southern Isles, p. 46sq.

137Dalager,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 Bāgdis 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.”

138Pollock and Maitland,op. cit.ii. 274.

139Ibid.ii. 280.

140Risley,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, quotedibid.p. 47, n. 1; Blackstone,Commentaries on the Laws of England, ii. 70sq.).

141Tickell, inJour. Asiatic Soc. Bengal, ix. pt. ii. 794, n.*

142Burton,Lake Regions of Central Africa, ii. 23sq.

143Jolly,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,144are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.

144Volkens,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 isjustified 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.”145Burglary 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.146Robbery 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.147That 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 thecaptor by the right of occupation,148is 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.149And 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,150largely 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.151Would 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.

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