GODS AS GUARDIANS OF MORALITY (_concluded_)
Explanation of the malevolence of savage gods, p. 728 _sq._--Of
the growing tendency to attribute more amiable qualities to the
gods, pp. 729-731.--Men selecting their gods, p. 729 _sq._--The
good qualities of gods magnified by their worshippers, p. 730
_sq._--How various departments of social morality have come to be
placed under the supervision of gods, p. 731 _sq._--How the
guardianship of gods has been extended to the whole sphere of
justice, p. 732.--How gods have become guardians of morality at
large, p. 733 _sq._--The influence of the religious sanction of
morality, p. 734 _sq._--Religious devotion frequently accompanied
by great laxity of morals, pp. 735-737.--Greater importance
attached to ceremonies or the niceties of belief than to good
behaviour towards fellow men, p. 736 _sq._--The religious
sanction of moral rules often leads to an external observance of
these rules from purely selfish motives, p. 737.--The moral
influence of Christianity, _ibid._
{xix} CHAPTER LIII
CONCLUSION
Recapitulation of the theory of the moral consciousness set forth
in vol. I., pp. 738-741.--This theory supported by the fact that
not only moral emotions but non-moral retributive emotions are
felt with reference to phenomena exactly similar in their general
nature to those on which moral judgments are passed, p.
741.--As also by the circumstance that the very acts, forbearances,
and omissions which are condemned as wrong are also apt to call
forth anger and revenge, and that the acts and forbearances which
are praised as morally good are apt to call forth gratitude, p. 741
_sq._--The variations of the moral ideas partly due to different
external conditions, p. 742.--But chiefly to psychical causes,
pp. 742-746.--The duties to neighbours have gradually become more
expansive owing to the expansion of the altruistic sentiment,
p. 743 _sq._--The influence of reflection upon moral judgments has
been increasing, p. 744 _sq._--The influence of sentimental
antipathies and likings has been decreasing, _ibid._--The
influence which the belief in supernatural forces or beings or in
a future state has exercised upon the moral ideas of mankind,
p. 745 _sq._--Remarks as to the future development of the moral
ideas, p. 746.
ADDITIONAL NOTES . . . pp. 747-754
AUTHORITIES QUOTED . . pp. 755-835
SUBJECT INDEX . . . . pp. 837-865
THE ORIGIN AND DEVELOPMENT OF THE MORAL IDEAS
CHAPTER 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.
CHAPTER 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]