Chapter 25
Part 25
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]
[Footnote 56: Ellis, _Polynesian Researches_, iii. 115 _sq._ (Tahitians). Wilkin, in _Reports of the Cambridge Expedition to Torres Straits_, v. 286 (natives of Mabuiag). Kingsley, _West African Studies_, p. 373. Lang, in Steinmetz, _Rechtsverhältnisse_, p. 238 (Washambala). Desoignies, _ibid._ p. 277 (Msalala). Rautanen, _ibid._ p. 336 (Ondonga). Dale, in _Jour. Anthr. Inst._ xxv. 224. Post, _Grundriss der ethnol. Jurisprudenz_, ii. 199.]
[Footnote 57: See _infra_, on Regard for the Dead.]
[Footnote 58: Dargun, in _Zeitschr. f. vergl. Rechtswiss._ v. 99 _sqq._]
[Footnote 59: _Ibid._ p. 102 _sq._]
[Footnote 60: Prescott, in Schoolcraft, _Indian Tribes of the United States_, ii. 194 _sq._ (Dacotahs). Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography and Philology_, p. 208 (Salish). Dalager, _op. cit._ p. 30 _sq._; Cranz, _op. cit._ i. 176 (Greenlanders).]
[Footnote 61: See Westermarck, _op. cit._ p. 97 _sqq._]
[Footnote 62: Kloss, _op. cit._ p. 241 (Nicobarese). Wilkin, in _Rep. Cambridge Anthr. Exped._ v. 285 _sq._ (natives of Mabuiag). Wilkes, _U.S. Exploring Expedition_, v. 85 (Kingsmill Islanders). Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 441 (Marshall Islanders). Dawson, _op. cit._ p. 7 (certain tribes of Western Victoria). Post, _Afrikanische Jurisprudenz_, ii. 14. _Idem_, _Entwicklungsgeschichte des Familienrechts_, p. 299. _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 225.]
[Footnote 63: Sarbah, _Fanti Customary Laws_, p. 87. Post, _Afrikanische Jurisprudenz_, ii. 13 _sq._ _Idem_, _Entwicklungsgeschichte des Familienrechts_, p. 298 _sq._ _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 222 _sqq._ Among several uncivilised peoples landed property descends exclusively (Macpherson, _Memorials of Service in India_, p. 62 [Kandhs]; Sumner, in _Jour. Anthr. Inst._ xxxi. 79 [Jakuts]; Curr, _The Australian Race_, i. 64; Johnston, _Uganda Protectorate_, ii. 694; Post, _Entwicklungsgeschichte des Familienrechts_, p. 298 _sq._; _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 224) or by preference (Thomson, _Story of New Zealand_, i. 96; Post, _Grundriss der ethnol. Jurisprudenz_, i. 224 sq.) to men.]
[Footnote 64: Castrén, _Nordiska resor och forskningar_, i. 312 (Ostyaks). Marshall, _A Phrenologist amongst the Todas_, p. 206. Hodgson, _Miscellaneous Essays_, i. 122 (Bódo and Dhimáls). Hislop, _Papers relating to the Aboriginal Tribes of the Central Provinces_, p. 12, n. [dagger] (Gonds). Soppitt, _Account of the Kuki-Lushai Tribes_, p. 16; Stewart, 'Notes on Northern Cachar,' in _Jour. Asiatic Soc. Bengal_, xxiv. 640 (Kukis). Risley, _Census of India_, 1901, vol. i. Ethnographic Appendices, pp. 146 (Santals), 156 (Mundas), 209 (most of the Angami Nagas). Fryer, _Khyeng People of the Sandoway District_, p. 6. Marsden, _op. cit._ p. 244 (Rejangs). Eyre, _Expeditions of Discovery into Central Australia_, ii. 297. Munzinger, _Die Sitten und das Recht der Bogos_, p. 73. Hinde, _Last of the Masai_, p. 105; Johnston, _Uganda Protectorate_, ii. 828 (Masai). Dale, in _Jour. Anthr. Inst._ xxv. 224 (Wabondei). Kingsley, _Travels in West Africa_, p. 485 (some West African tribes). Nassau, _Fetichism in West Africa_, p. 13 (natives of the Cameroons). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 20 (Bakwiri). Mademba, _ibid._ p. 81 (pagan Bambara). Lang, _ibid._ p. 238 (Washambala). Kraft, _ibid._ p. 289 (Wapokomo). Rautanen, _ibid._ p. 335 (Ondonga). Decle, _op. cit._ p. 486 (Wakamba). Campbell, _Travels in South Africa_, p. 520 (Kafirs). Post, _Afrikanische Jurisprudenz_, ii. 5. _Idem_, _Entwicklungsgeschichte des Familienrechts_, p. 296 _sqq._ _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 218 _sq._]
[Footnote 65: Hamy, in _Bull. Soc. d'Anthr. Paris_, ser. ii. vol. xii. (1877), 535 (Penong Piâk of Cambodia). Buchanan, quoted by Hodgson, _Miscellaneous Essays_, i. 110 (Kócch). Post, _Grundriss der ethnol. Jurisprudenz_, i. 213.]
[Footnote 66: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii. 307. Dawson, _Australian Aborigines_, p. 7 (certain tribes of Western Victoria). Hunt, 'Ethnogr. Notes on the Murray Islands, Torres Straits,' in _Jour. Anthr. Inst._ xxviii. 7. Grange, 'Journal of an Expedition into the Naga Hills,' in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 964. Mason, _ibid._ xxxvii. pt. ii. 142 (Karens). Post, _Entwicklungsgeschichte des Familienrechts_, p. 303 _sqq._]
[Footnote 67: Dalager, _op. cit._ pp. 29, 31; Cranz, _op. cit._ i. 176 (Greenlanders). Risley, _op. cit._ p. 203 (Limbus of Nepal). Macpherson, _op. cit._ p. 62 (Kandhs). Soppitt, _op. cit._ p. 16 (Kukis). Fryer, _op. cit._ p. 6 (Khyens). Junghuhn, _op. cit._ ii. 147 (Bataks). Gill, _Life in the Southern Isles_, p. 46. Polack, _op. cit._ ii. 69; Colenso, _op. cit._ p. 33 (Maoris). Munzinger, _Die Sitten und das Recht der Bogos_, pp. 69, 73 _sq._ Paulitschke, _op. cit._ p. 192 (Gallas). Hollis, _Masai_, p. 309; Hinde, _op. cit._ pp. 51, 105 (Masai). Volkens, _Der Kilimandscharo_, p. 253 (Wadshagga). Kingsley, _Travels in West Africa_, p. 485 (some West African tribes). Bosman, _op. cit._ pp. 173 (natives of the Gold Coast), 322 (natives of the Slave Coast). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p. 20 (Bakwiri). Mademba, _ibid._ p. 81 (pagan Bambara). Desoignies, _ibid._ p. 276 (Msalala). Marx, _ibid._ p. 355 (Amahlubi), Chanler, _Through Jungle and Desert_, p. 316 (Rendile), Post, _Afrikanische Jurisprudenz_, ii. 12 _sqq._ _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 217, 218, 220 _sq._]
[Footnote 68: Proyart, 'History of Loango,' in Pinkerton, _Collection of Voyages and Travels_, xvi. 571.]
[Footnote 69: Kingsley, _West African Studies_, p. 373 _sq._ (some West African tribes). Sorge, in Steinmetz, _Rechtsverhältnisse_, p. 413 (Nissan Islanders).]
[Footnote 70: Risley, _op. cit._ p. 227 (Lusheis). Avebury, _Origin of Civilisation_, p. 493 _sqq._ Post, _Grundriss, der ethnol. Jurisprudenz_, i. 218, 221 _sq._ Liebrecht, _Zur Volkskunde_, p. 432.]
[Footnote 71: Tickell, 'Memoir on the Hodésum,' in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 794, n.*]
[Footnote 72: Risley, _op. cit._ p. 203. _Cf._ Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. 142 (Karens).]
[Footnote 73: Nelson, in _Ann. Rep. Bur. Ethn._ xviii. 307.]
[Footnote 74: Dalager, _op. cit._ p. 33.]
[Footnote 75: Denham and Clapperton, quoted in Spencer's _Descriptive Sociology_, African Races, p. 8.]
[Footnote 76: Stewart, in _Jour. Asiatic Soc. Bengal_, xxiv. 640.]
[Footnote 77: Hodgson, _Miscellaneous Essays_, i. 122.]
[Footnote 78: Burton, _Lake Regions of Central Africa_, ii. 23 _sq._ _Cf._ Post, _Afrikanische Jurisprudenz_, ii. 6.]
[Footnote 79: Nicole, in Steinmetz, _Rechtsverhältnisse_, pp. 115, 119 (Diakité-Sarracolese). Lang, _ibid._ pp. 238, 242 (Washambala). Kraft, _ibid._ pp. 289, 291 (Wapokomo). Rautanen, _ibid._ p. 335 (Ondonga). Post, _Grundriss der ethnol. Jurisprudenz_, i. 383.]
[Footnote 80: Munzinger, _Die Sitten und das Recht der Bogos_, p. 73. Steinmetz, _Rechtsverhältnisse_, p. 43 (Banaka and Bapuku). Mademba, _ibid._ p. 83 (natives of the Sansanding States). Post, _Grundriss der ethnol. Jurisprudenz_, i. 383.]
At higher stages of civilisation the rules of inheritance present the same characteristics as among many savages. During historic times, at least, the nations of culture have reckoned kinship through the father, and succession has been agnatic.[81] In China women only inherit in the very last resort, failing all male relatives.[82] Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit;[83] but the later law conferred on daughters the right of heirship in the absence of sons.[84] The Muhammedan law of inheritance in most cases awards to a female a share equal to half that of a male of the same degree of relationship to the deceased;[85] but according to the old law of Medina women could not inherit at all.[86] Of all the ancient nations with whose rules of inheritance we are acquainted, the Romans seem to have been the only one who gave daughters the same right of inheritance as sons.[87] In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved.[88] In Attic law sons excluded {48} daughters from succession,[89] and the same was the case among the Scandinavian peoples still in the later Middle Ages.[90] In England women are even to this day postponed to men in the order of succession to real property.[91] Special privileges in the division of the father's property were granted to the eldest son by the Hebrews[92] and Hindus,[93] and traces of primogeniture are met with in ancient Greek legislation.[94] In the history of English law we find not only primogeniture, but ultimogeniture as well.[95] As regards the question of legitimacy, we notice that in China all sons born in the household have an equal share in the inheritance, whether born of the principal wife or a concubine or a domestic slave.[96] Among the Hebrews the sons of concubines had a right of inheritance,[97] but whether on an equality with the other sons we do not know.[98] According to Muhammedan law no distinction in point of inheritance is made between the child of a wife and that borne by a slave to her master, if the master acknowledge the child to be his own.[99] In Hindu legislation the legitimate {49} sons have the nearest right to the inheritance of their father, but a son begotten by a Sûdra on a female slave may, if permitted by his father, take a share of it.[100] The Roman law on the subject may be summed up thus:--With regard to its father a natural child has no right at all, and differs in no respect from a stranger; with regard to its mother it has the same right as a legitimate child.[101] In Teutonic countries the position of illegitimate children as to succession was much more favourable in earlier times than later on when Christianity made its influence felt, depriving them of all title to inheritance.[102] Strangers were formerly unable both to inherit and to transmit property. For a long time it was the custom in Europe to confiscate their effects on their death; and not only persons who were born in a foreign country were subject to this _droit d'aubaine_, as it was called in France, but in some countries it was applied even to persons who removed from one diocese to another, or from the lands of one baron to another.[103] Indeed, it is only in recent times that foreigners have been placed on a footing of equality with citizens with regard to inheritance. In 1790 the French National Assembly abolished the right of _aubaine_ as being contrary to the principle of a human brotherhood.[104] Later on, when the Code Napoléon was drawn up, a backward step was taken by restricting the abolition of this right to nations who acted with reciprocity; but this limitation only lasted till 1819, when all inequalities were finally removed in France.[105] In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.[106]
[Footnote 81: See Westermarck, _op. cit._ p. 104.]
[Footnote 82: Alabaster, 'Law of Inheritance,' in _China Review_, v. 193. 'Inheritance and "Patria Potestas" in China,' _ibid._ v. 406.]
[Footnote 83: _Genesis_, xxxi. 14 _sq._ _Numbers_, xxvii. 4. Gans, _Das Erbrecht in weltgeschichtlicher Entwickelung_, i. 147. Benzinger, 'Law and Justice,' in Cheyne and Black, _Encyclopædia Biblica_, iii. 2728.]
[Footnote 84: _Numbers_, xxvii. 8. Gans, _op. cit._ i. 147. Benzinger, _loc. cit._ p. 2729. It is only by exceptional favour that the daughters inherit along with the sons (_Job_, xlii. 15).]
[Footnote 85: _Koran_, iv. 12, 175. Lane, _Manners and Customs of the Modern Egyptians_, p. 116 _sq._ Kohler, _Rechtsvergleichende Studien_, p. 102 _sqq._]
[Footnote 86: Robertson Smith, _Kinship and Marriage in Early Arabia_, pp. 65, 117.]
[Footnote 87: Gans, _op. cit._ ii. 367 _sq._ Gide, _Étude sur la condition privée de la femme_, p. 102.]
[Footnote 88: Jolly, _loc. cit._ pp. 83, 86. Kohler, 'Indisches Ehe- und Familienrecht,' in _Zeitschr. f. vergl. Rechtswiss._ iii. 424 _sqq._ Leist, _Alt-arisches Jus Civile_, ii. 48.]
[Footnote 89: Gans, _op. cit._ i. 338, 341. Gide, _op. cit._ p. 79.]
[Footnote 90: Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 95, 190. Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 311 _sq._ Keyser, _Efterladte Skrifter_, ii. pt. i. 330, 339.]
[Footnote 91: Renton, _Encyclopædia of the Laws of England_, xi. 75.]
[Footnote 92: _Deuteronomy_, xxi. 17. Gans, _op. cit._ i. 148. Benzinger, in Cheyne and Black, _Encyclopædia Biblica_, iii. 2729. Mr. Jacobs suggests (_Studies in Biblical Archæology_, p. 49 _sqq._) that ultimogeniture was once the rule in early Hebrew society, and was succeeded by primogeniture only when the Israelites exchanged their roving life for one in which sons became more stay-at-home.]
[Footnote 93: _Âpastamba_, ii. 6. 14. 6, 12. _Laws of Manu_, ix. 114. Jolly, _loc. cit._ pp. 77, 82. Maine, _Dissertations on Early Law and Custom_, p. 89 _sq._ In China, though sons inherit in equal shares, "it is not uncommon for the brothers to temporarily yield up their share to the elder brother, either in whole or in part, for the glory of the House" ('Inheritance and "Patria Potestas" in China,' in _China Review_, v. 406; _cf._ Doolittle, _Social Life of the Chinese_, ii. 224; Davis, _China_, i. 343).]
[Footnote 94: Fustel de Coulanges, _op. cit._ p. 99.]
[Footnote 95: Elton, _Origins of English History_, p. 178 _sqq._ Pollock and Maitland, _History of English Law till the Time of Edward I._ ii. 263 _sqq._ The custom of ultimogeniture has also been traced in Wales, parts of France, Germany, Friesland, Scandinavia, Russia, and Hungary (Elton, _op. cit._ p. 180 _sqq._; Liebrecht, _op. cit._ p. 431 _sq._).]
[Footnote 96: Parker, 'Comparative Chinese Family Law,' in _China Review_, viii. 79. 'Inheritance and "Patria Potestas" in China,' _ibid._ v. 406. Medhurst, 'Marriage, Affinity, and Inheritance in China,' in _Trans. Roy. Asiatic Soc. China Branch_, iv. 31. Simcox, _Primitive Civilizations_, ii. 351.]
[Footnote 97: _Genesis_, xxi. 10 _sqq._]
[Footnote 98: Benzinger, in Cheyne and Black, _Encyclopædia Biblica_, iii. 2729.]
[Footnote 99: Lane, _Modern Egyptians_, p. 118.]
[Footnote 100: Jolly, _loc. cit._ p. 85. _Laws of Manu_, ix. 179.]
[Footnote 101: Gide, _op. cit._ p. 567 _sqq._]
[Footnote 102: Nordström, _op. cit._ ii. 67, 200 _sqq._ See also Alard, _Condition et droits des enfants naturels_, pp. 9, 11; _supra_, i. 47.]
[Footnote 103: Brussel, _Nouvel examen de l'usage général des fiefs en France_, ii. 944 _sqq._ de Laurière, _Glossaire du droit françois_, p. 47 _sq._ Demangeat, _Histoire de la condition civile des étrangers en France_, p. 107 _sqq._]
[Footnote 104: Demangeat, _op. cit._ p. 239.]
[Footnote 105: _Ibid._ p. 250 _sqq._]
[Footnote 106: _Naturalisation Act_, 1870, § 2.]
Besides acquisition by occupation, possession for a certain length of time, labour, voluntary transfer, and inheritance, there are instances in which ownership in a {50} thing directly follows from ownership in another thing. It is a general rule that the owner of an object also owns what develops from or is produced by it.[107] The owner of a cow owns her calf, the owner of a tree its fruits, the owner of a piece of land anything growing on it, at least if no labour has been necessary for its production. Ownership in land also gives a certain right to the wild animals which are found there. Among the Fantis, for instance, if anybody kills game on another person's land, its proprietor is entitled to the shoulder or a quarter of such game.[108] In this connection we have further to notice the mode of acquisition which the Roman jurists called _accessio_. When that which belongs to one person is so intermixed with the property of another, that either it cannot be separated at all, or cannot be separated without inflicting damage out of proportion to the gain, the owner of the principal becomes the owner of the accessory, though, as a rule, he would have to pay compensation for it.[109]
[Footnote 107: See Post, _Grundriss der ethnol. Jurisprudenz_, ii. 612; Goos, _Forelæsninger over den almindelige Retslære_, ii. 159 _sqq._]
[Footnote 108: Sarbah, _op. cit._ p. 48.]
[Footnote 109: Hunter, _Roman Law_, p. 247 _sq._]
All these methods of acquisition apply not only to individual property, but to common property as well. Occupation may establish ownership whether there be many occupants or only one; joint labour may lead to joint ownership in the produce; property may be transferred to a body of persons as well as to a single individual. But the custom which prescribes community of goods may also itself be an independent method of acquisition: by belonging to an association of people who hold property in common a person may be part owner of a thing which has been occupied or produced by some other member of the association. Communism of one kind or another is undoubtedly a very ancient institution,[110] though its prevalence at the lower stages of civilisation has often been exaggerated.[111] But the whole question of {51} common ownership is too complicated and lies too much apart from our special subject to admit of a detailed treatment.
[Footnote 110: _Cf._ Kovalewsky, _Tableau des origines et de l'évolution de la famille et de la propriété_, p. 51 _sqq._]
[Footnote 111: Dr. Dargun (in _Zeitschr. f. vergl. Rechtswiss._ v. 76, &c.) even goes so far as to say that savages know of no other property but such as belongs to individuals; but this statement is hardly justified by facts.]
* * * * *
From the statement of facts we shall now proceed to an explanation of these facts. First, why do men recognise proprietary rights at all? Why do the moral feelings of mankind grant to certain persons a right to the exclusive disposal of certain things, in other words, why does the disposal of an object without the consent of the person called its owner give rise to moral disapproval? The "right of property," it is true, is generally used as a term for a legal right. But in this, as in so many other cases, the legal right is essentially a formulated expression of moral feelings.
As Mr. Spencer observes, the desire to appropriate, and to keep that which has been appropriated, lies deep not only in human but in animal nature, being, indeed, a condition of survival.[112] Sticklebacks show obvious signs of anger when their territory is invaded by other sticklebacks.[113] Birds defend their nests against the attacks of intruders.[114] The dog fights for his kennel or for the prey he has caught. A monkey in the Zoological Gardens of London, which made use of a stone to open nuts, always hid it in the straw after using it, and would not allow any other monkey to touch it.[115] We find the same propensity in man from his earliest years. At the age of two, Tiedemann's son did not let his sister sit on his chair or take any of his clothes, though he had no scruples against appropriating things which belonged to her.[116] Owing to this tendency to keep an appropriated object, and to resist its abstraction, it is dangerous for an individual to try to seize anything held by another of about equal strength; {52} and in human societies this naturally led to the habit of leaving each in possession of whatever he had attained, especially in early times when the objects possessed were of little value, and there was no great inequality of wealth.[117] This habit was further strengthened by various circumstances, all of which tended to make interference with other persons' possessions the subject of moral censure. From both prudential and altruistic motives parents taught their children to abstain from such interference, and this, by itself, would readily give rise to the notion of theft as a moral wrong. Society at large also tried to prevent acts of this kind, partly in order to preserve peace and order, partly out of sympathy with the possessor. Resentment is felt not only by him who is deprived of his possession, but by others on his behalf. This is seen even among some of the lower animals. The Pomeranian dogs of German carters watch the goods of their masters;[118] Mr. Romanes's terrier protected meat from other terriers, his offspring, which lived in the same house with him, and with which he was on the very best of terms;[119] Captain Gordon Stables's cat, which had her place on the table at meals, never allowed any unauthorised interference with the viands.[120] In men such sympathetic resentment naturally develops into genuine moral disapproval.
[Footnote 112: Spencer, _Principles of Sociology_, ii. 644.]
[Footnote 113: _Supra_, i. 22.]
[Footnote 114: Perty, _Das Seelenleben der Thiere_, p. 68.]
[Footnote 115: Darwin, _Descent of Man_, i. 125. See also Fischer, 'Notes sur l'intelligence des singes,' in _Revue scientifique_, xxxiii. 618.]
[Footnote 116: Compayré, _L'évolution intellectuelle et morale de l'enfant_, p. 312.]
[Footnote 117: _Cf._ Spencer, _Principles of Sociology_, ii. 634, 644; Dargun, in _Zeitschr. f. vergl. Rechtswiss._ v. 79 _sq._; von Martius, _Beiträge zur Ethnographie Amerika's_, i. 88, 90.]
[Footnote 118: Peschel, _Races of Man_, p. 240.]
[Footnote 119: Romanes, 'Conscience in Animals,' in _Quarterly Journal of Science_, xiii. 156, n.*]
[Footnote 120: 'Studies in Animal Life,' in _Chambers's Journal_, 1884, p. 824.]
All this applies not only to proprietary rights based on occupation, but also to the principle of continued possession as a ground of ownership. Indeed, the longer a person is in possession of a certain object, the more apt are both he and other individuals to resent its alienation; whereas the loss or abandonment of a thing has a tendency to loosen the connection between the thing and its owner.[121] This is undoubtedly the chief source of the rule of prescription, {53} though there may be other circumstances as well which help to justify it. Thus it has been said that it is necessary to the security of rightful possessors that they should not be molested by charges of wrongful acquisition when by the lapse of time witnesses must have perished or been lost sight of, and the real character of the transaction can no longer be cleared up;[122] whilst another argument adduced in favour of prescription is, that long possession generally implies labour and that labour gives ownership.[123] The reason why property is gained by labour is obvious enough. Not only do exertions in producing an object make the producer desirous to keep it and to have the exclusive disposal of it, but an encroachment upon the fruit of his labour arouses sympathetic resentment in outsiders, who feel that an effort deserves its reward.
[Footnote 121: _Cf._ Hume, _Treatise of Human Nature_, ii. 3 (_Philosophical Works_, ii. 274):--"What has long lain under our eye, and has often been employed to our advantage, _that_ we are always the most unwilling to part with."]
[Footnote 122: Mill, _Principles of Political Economy_, i. 272.]
[Footnote 123: Thiers, _op. cit._ p. 103 _sqq._]
As the recognition of ownership thus ultimately springs from a desire in the owner to keep and dispose of what he has appropriated or produced, it is evident that, in ordinary circumstances, there would be no moral disapproval of a voluntary transfer of property to another person. But the case is different if such a transfer is injurious to the interests of persons who have a special claim to consideration. Thus testation is frequently held to be inconsistent with the duties which parents owe to their children or other near relatives to one another. The father, though the lord of the family's possessions, may indeed be regarded only as the first magistrate of an association, and in such a case his share in the division naturally devolves on the member of the family who succeeds to his authority.[124] The right of inheritance, then, may be intimately connected with the idea that the heir was, in a manner, joint owner of the deceased person's property already during his lifetime.[125] But there are {54} various other facts which account for the existence of this right. In early civilisation the rule of succession is part of a comprehensive system of rights and duties which unite persons of the same kin. Professor Robertson Smith observes that in ancient Arabia all persons on whom the duty of blood-revenge lay originally had the right of inheritance;[126] and a similar connection between inheritance and blood-revenge is found among other peoples. This system of mutual rights and duties is generally one-sided, it has reference either to paternal or to maternal relatives, but not to both at once. Now, whatever be the reason why the one or the other method of reckoning kinship prevails among a certain people, it is in the present place sufficient to point out the influence which the idea of a common descent exercises upon the right of inheritance owing to its power of knitting together the persons to whom it refers. Besides, the duty connected with this right may also be of such a nature as to require a certain amount of wealth for its performance; among the Hindus, Greeks, and Romans, the right to inherit a dead man's property was exactly co-extensive with the duty of performing his obsequies and offering sacrifices to his spirit.[127] A further cause of children inheriting their father's property may be that they, to some extent, have previously been in joint possession of it; for, as we know, possession readily leads to ownership. They would have an additional claim to succeed to his property when it had been gathered by their labour, as well as his, or when they stood in need of the support which it had been the father's duty to give them had he been alive. Moreover, where a person's children are present on the spot at his death, they are apt to be the first occupants of his {55} property;[128] and we have noticed the importance of first occupancy as a means of establishing proprietary rights. The influence of these latter considerations, which are independent of the method of tracing descent, is apparent from the fact that among several peoples inheritance runs in the male line even though children take the mother's name and are considered to belong to her clan.[129] It may be added that a reason which modern writers often have assigned for giving the property of a person who dies intestate to his children or other near relatives is the supposition that in so disposing of it the law is only likely to do what the proprietor himself would have done, if he had done anything.[130]
[Footnote 124: Plato, _Leges_, xi. 923. Maine, _Ancient Law_, p. 184. Fustel de Coulanges, _op. cit._ p. 85. Leist, _Alt-arisches Jus Civile_, ii. 48. Mill, _op. cit._ i. 274. Kovalewsky, _Coutume contemporaine et loi ancienne_, p. 198 (Ossetes).]
[Footnote 125: It is interesting to note that in the Chinese penal code stealing from a relative is punished less severely than other cases of theft, and that the mitigation of the punishment is proportionate to the nearness of the relationship (_Ta Tsing Leu Lee_, sec. cclxxii. p. 287). The reason for this is that, "according to the Chinese patriarchal system, a theft is not in this case a violation of an exclusive right, but only of the qualified interest which each individual has in his share of the family property" (Staunton, _ibid._ p. 287, n.*).]
[Footnote 126: Robertson Smith, _Kinship and Marriage in Early Arabia_, pp. 55, 56, 66 _sq._]
[Footnote 127: _Laws of Manu_, ix. 186 _sq._ Isaeus, _Oratio de Philoctemonis hereditate_, 51. Cicero, _De legibus_, ii. 19 _sq._ Fustel de Coulanges, _op. cit._ p. 84. Maine, _Ancient Law_, p. 191 _sq._]
[Footnote 128: _Cf._ Mill, _op. cit._ i. 274.]
[Footnote 129: Westermarck, _History of Human Marriage_, pp. 104, 111.]
[Footnote 130: Hume, _Treatise of Human Nature_, ii. 3 (_Philosophical Works_, ii. 280). Godwin, _Enquiry concerning Political Justice_, ii. 438. Mill, _op. cit._ i. 275.]
In details the rules of succession are influenced by a variety of circumstances. Women may be excluded from inheritance or receive a smaller share than the men because the latter, being the stronger party, appropriate everything or the larger portion of the property for themselves;[131] or because the women are less in need of property, being supported by their male relatives or husbands;[132] or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge;[133] or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars;[134] or for the purpose of preventing the estate from passing to another family or tribe.[135] The idea of keeping together the property of the house also largely is at the bottom of the rule of primogeniture. {56} Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being.[136] On the death of the head of the family he is generally better suited than anybody else to take his place; and his privileged position with regard to inheritance is justified by the duties connected with it, especially the duty of looking after and supporting the other members of the household.[137] In feudalism, where tenancy implied duties as well as rights, it was also, from the lord's point of view, the simplest arrangement that when a tenant died a single person should fill the vacant place.[138] But there are many other points of view which may determine the rules of succession. It may be thought just that each child should have an equal share in the inheritance, and that something should be given also to the widow, whose maintenance devolved on the husband and who, whilst he was alive, had been in joint possession of many of his belongings. Or the youngest son may be the chief or the exclusive heir, partly perhaps for the sake of preventing a division of the property, or because the lord would have but one tenant,[139] but partly also because he had remained with his father till his death,[140] or "on the plea of his being less able to help himself on the death of the parents than his elder brethren, who have had their father's assistance in settling themselves in the world during his lifetime."[141] The Wanyamwezi, again, justify the practice of leaving property {57} to their illegitimate children by slave girls or concubines, to the exclusion of their legitimate offspring, "by the fact of the former requiring their assistance more than the latter, who have friends and relatives to aid them."[142] Generally there seems to be a close connection between illegitimate children's right to inheritance and the legal recognition of polygamous practices. This is indicated by a comparison between Oriental and Roman legislation on the subject, and, in Teutonic countries, between ancient custom and the later law, which was influenced by Christianity's horror of sexual acts falling outside the monogamous marriage relation. The privileges which Hindu law grants to the illegitimate children of Sûdras are due to the notion that the marriage of a member of this caste is itself considered to be of so low a nature as to be on a par with irregular connections.[143]
[Footnote 131: _Cf._ Campbell, _Travels in South Africa_, p. 520 (Kafirs).]
[Footnote 132: _Cf._ Cranz, _op. cit._ i. 176 (Greenlanders); Macpherson, _Memorials of Service in India_, p. 62 (Kandhs); Hinde, _op. cit._ p. 51 (Masai); 'Inheritance and "Patria Potestas" in China,' in _China Review_, v. 406; Jolly, _loc. cit._ p. 83 (ancient Hindus); Post, _Entwicklungsgeschichte des Familienrechts_, p. 296 _sq._; _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 218 _sq._]
[Footnote 133: _Cf._ Robertson Smith, _Kinship and Marriage in Early Arabia_, p. 65 _sq._; Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 311 _sq._]
[Footnote 134: _Cf._ Cleveland, _Woman under the English Law_, p. 83.]
[Footnote 135: Shortland, _Traditions and Superstitions of the New Zealanders_, p. 256. Kingsley, _Travels in West Africa_, p. 485. Post, _Grundriss der ethnol. Jurisprudenz_, i. 214. _Cf._ _Numbers_, xxxvi. 1 _sqq._]
[Footnote 136: _Supra_, i. 605, 606, 614. Gill, _Life in the Southern Isles_, p. 46 _sq._]
[Footnote 137: Dalager, _op. cit._ pp. 29, 31; Cranz, _op. cit._ i. 176 (Greenlanders). Munzinger, _Die Sitten und das Recht der Bogos_, p. 74. Hinde, _op. cit._ p. 51 (Masai). Of the B[=a]gdis of Bengal Mr. Risley expressly says (_op. cit._ p. 183) that the extra share which is given to the eldest son "seems to be intended to enable him to support the female members of the family, who remain under his care."]
[Footnote 138: Pollock and Maitland, _op. cit._ ii. 274.]
[Footnote 139: _Ibid._ ii. 280.]
[Footnote 140: Risley, _op. cit._ p. 227 (Lusheis). Among the Angami Nagas the youngest son nearly always inherits his father's house, because sons, when marrying, leave the paternal mansion and build houses of their own (_ibid._ p. 209). It has been suggested that the custom of ultimogeniture "would naturally arise during the latter stages of the pastoral period, when the elder sons would in the ordinary course of events have 'set up for themselves' by the time of the father's death" (Jacobs, _Studies in Biblical Archæology_, p. 47; Gomme, quoted _ibid._ p. 47, n. 1; Blackstone, _Commentaries on the Laws of England_, ii. 70 _sq._).]
[Footnote 141: Tickell, in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 794, n.*]
[Footnote 142: Burton, _Lake Regions of Central Africa_, ii. 23 _sq._]
[Footnote 143: Jolly, _loc. cit._ p. 85.]
Of the incapacity of children, wives, and slaves to acquire property for themselves little needs to be said, in the present connection, by way of explanation. Their exclusion from the right of independent ownership is an incident of their subjection to their parents, husbands, or masters. But we must remember that, whilst the latter have a right to dispose of the earnings of their subordinates, they also have the duty of supporting them, and that in early civilisation the child and the wife, sometimes even the slave,[144] are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.
[Footnote 144: Volkens, _op. cit._ p. 249 (Wadshagga).]