Chapter XXIX: THE RIGHT OF PROPERTY (concluded) (1)

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.]