Chapter XXVIII: The Right of Property (2)

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.