Chapter XXIX: THE RIGHT OF PROPERTY (concluded) (2)

In details the rules of succession are influenced by a variety of circumstances. Women may be excluded from inheritance or receive a smaller share than the men because the latter, being the stronger party, appropriate everything or the larger portion of the property for themselves;[131] or because the women are less in need of property, being supported by their male relatives or husbands;[132] or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge;[133] or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars;[134] or for the purpose of preventing the estate from passing to another family or tribe.[135] The idea of keeping together the property of the house also largely is at the bottom of the rule of primogeniture. {56} Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being.[136] On the death of the head of the family he is generally better suited than anybody else to take his place; and his privileged position with regard to inheritance is justified by the duties connected with it, especially the duty of looking after and supporting the other members of the household.[137] In feudalism, where tenancy implied duties as well as rights, it was also, from the lord's point of view, the simplest arrangement that when a tenant died a single person should fill the vacant place.[138] But there are many other points of view which may determine the rules of succession. It may be thought just that each child should have an equal share in the inheritance, and that something should be given also to the widow, whose maintenance devolved on the husband and who, whilst he was alive, had been in joint possession of many of his belongings. Or the youngest son may be the chief or the exclusive heir, partly perhaps for the sake of preventing a division of the property, or because the lord would have but one tenant,[139] but partly also because he had remained with his father till his death,[140] or "on the plea of his being less able to help himself on the death of the parents than his elder brethren, who have had their father's assistance in settling themselves in the world during his lifetime."[141] The Wanyamwezi, again, justify the practice of leaving property {57} to their illegitimate children by slave girls or concubines, to the exclusion of their legitimate offspring, "by the fact of the former requiring their assistance more than the latter, who have friends and relatives to aid them."[142] Generally there seems to be a close connection between illegitimate children's right to inheritance and the legal recognition of polygamous practices. This is indicated by a comparison between Oriental and Roman legislation on the subject, and, in Teutonic countries, between ancient custom and the later law, which was influenced by Christianity's horror of sexual acts falling outside the monogamous marriage relation. The privileges which Hindu law grants to the illegitimate children of Sûdras are due to the notion that the marriage of a member of this caste is itself considered to be of so low a nature as to be on a par with irregular connections.[143]

[Footnote 131: _Cf._ Campbell, _Travels in South Africa_, p. 520 (Kafirs).]

[Footnote 132: _Cf._ Cranz, _op. cit._ i. 176 (Greenlanders); Macpherson, _Memorials of Service in India_, p. 62 (Kandhs); Hinde, _op. cit._ p. 51 (Masai); 'Inheritance and "Patria Potestas" in China,' in _China Review_, v. 406; Jolly, _loc. cit._ p. 83 (ancient Hindus); Post, _Entwicklungsgeschichte des Familienrechts_, p. 296 _sq._; _Idem_, _Grundriss der ethnol. Jurisprudenz_, i. 218 _sq._]

[Footnote 133: _Cf._ Robertson Smith, _Kinship and Marriage in Early Arabia_, p. 65 _sq._; Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 311 _sq._]

[Footnote 134: _Cf._ Cleveland, _Woman under the English Law_, p. 83.]

[Footnote 135: Shortland, _Traditions and Superstitions of the New Zealanders_, p. 256. Kingsley, _Travels in West Africa_, p. 485. Post, _Grundriss der ethnol. Jurisprudenz_, i. 214. _Cf._ _Numbers_, xxxvi. 1 _sqq._]

[Footnote 136: _Supra_, i. 605, 606, 614. Gill, _Life in the Southern Isles_, p. 46 _sq._]

[Footnote 137: Dalager, _op. cit._ pp. 29, 31; Cranz, _op. cit._ i. 176 (Greenlanders). Munzinger, _Die Sitten und das Recht der Bogos_, p. 74. Hinde, _op. cit._ p. 51 (Masai). Of the B[=a]gdis of Bengal Mr. Risley expressly says (_op. cit._ p. 183) that the extra share which is given to the eldest son "seems to be intended to enable him to support the female members of the family, who remain under his care."]

[Footnote 138: Pollock and Maitland, _op. cit._ ii. 274.]

[Footnote 139: _Ibid._ ii. 280.]

[Footnote 140: Risley, _op. cit._ p. 227 (Lusheis). Among the Angami Nagas the youngest son nearly always inherits his father's house, because sons, when marrying, leave the paternal mansion and build houses of their own (_ibid._ p. 209). It has been suggested that the custom of ultimogeniture "would naturally arise during the latter stages of the pastoral period, when the elder sons would in the ordinary course of events have 'set up for themselves' by the time of the father's death" (Jacobs, _Studies in Biblical Archæology_, p. 47; Gomme, quoted _ibid._ p. 47, n. 1; Blackstone, _Commentaries on the Laws of England_, ii. 70 _sq._).]

[Footnote 141: Tickell, in _Jour. Asiatic Soc. Bengal_, ix. pt. ii. 794, n.*]

[Footnote 142: Burton, _Lake Regions of Central Africa_, ii. 23 _sq._]

[Footnote 143: Jolly, _loc. cit._ p. 85.]

Of the incapacity of children, wives, and slaves to acquire property for themselves little needs to be said, in the present connection, by way of explanation. Their exclusion from the right of independent ownership is an incident of their subjection to their parents, husbands, or masters. But we must remember that, whilst the latter have a right to dispose of the earnings of their subordinates, they also have the duty of supporting them, and that in early civilisation the child and the wife, sometimes even the slave,[144] are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.

[Footnote 144: Volkens, _op. cit._ p. 249 (Wadshagga).]

We have still to explain the variations of moral judgments with regard to different acts of theft. That the condemnation of the offence varies in degree according to the value of the stolen goods follows from the fact that theft is disapproved of on account of the injury done to the owner. But in many cases, when the injury is very slight, the appropriation of another person's property is {58} justified by the needs of him who took it. And frequently, also, the condemnation of the thief is more concerned with his encroachment upon a neighbour's right than with measuring the exact amount of harm inflicted. Among the Basutos, says Casalis, "the idea of theft is expressed by a generic word which refers to the violation of right, much more than to the damage caused."[145] Burglary is regarded as an aggravated form of theft partly because it adds a fresh offence, the illicit entering into another person's house, to that against property, partly because it proves great premeditation in the offender.[146] Robbery is likewise a double offence, implying, as it does, an act of violence, and may on that account be more severely censured than ordinary theft; but in other cases the courage and strength displayed by the robber is looked upon as a mitigating circumstance, and sometimes substitutes admiration for disapproval, whereas the secret offender is despised as a coward. So, too, the secrecy of nocturnal theft may aggravate the crime, whilst at the same time the difficulty in providing against it may induce society to increase the punishment. But men are apt to admire not only bravery and force, but also dexterity and pluck, hence the appreciation of adroit theft. The same tendency in some measure accounts for the distinction between manifest and non-manifest theft; but here we have in the first place to remember that strong emotions are more easily aroused by the sight of an act than by the mere knowledge of its commission.[147] That the moral valuation of theft varies according to the station of the thief and the person robbed is due to the same causes as are similar variations with regard to other injuries; and so is the distinction between offences against the property of a tribesman or fellow-countryman and offences against the property of a stranger. The theory of the Roman jurists according to which the property of an enemy in war belongs to nobody as long as the hostilities last, and therefore becomes the property of the {59} captor by the right of occupation,[148] is only a play with words intended to give a reasonable justification to a practice which is really due to lack of regard for the feelings of strangers. When men at an early stage of civilisation respect a stranger's property the motive is undoubtedly in the main prudential. Savages may be anxious to prevent theft from a neighbouring tribe in order to avoid disagreeable consequences.[149] And I venture to think that the honesty they often display with regard to objects belonging to strangers who visit them, and especially with regard to things left in their charge,[150] largely springs from superstitious fear. We have noticed before that even the acceptance of gifts is supposed to be connected with supernatural danger, owing to the baneful magic energy with which the gift is suspected to be saturated.[151] Would not the same apply to the illicit appropriation of a stranger's belongings, and especially to trusts, which naturally call for great precaution on the part of the owner? This leads us to a subject of considerable importance in the history of property, namely, the influence which magic and religious beliefs have exercised on the regard for proprietary rights.

[Footnote 145: Casalis, _Basutos_, p. 304.]

[Footnote 146: _Cf._ Wilda, _op. cit._ p. 878 (ancient Teutons).]

[Footnote 147: _Supra_, i. 294.]

[Footnote 148: Hunter, _Roman Law_, p. 257. Puchta, _op. cit._ ii. 220.]

[Footnote 149: Sproat, _Scenes and Studies of Savage Life_, p. 159 (Ahts). Scott Robertson, _Káfirs of the Hindu-Kush_, p. 440.]

[Footnote 150: See, besides statements referred to above, Lumholtz, _Unknown Mexico_, i. 420, and ii. 477; Nordenskiöld, _Vegas färd kring Asien och Europa_, ii. 140 _sq._ (Chukchi); Worcester, _Philippine Islands_, p. 413 (Mangyans); Colenso, _op. cit._ p. 43 (Maoris); Macdonald, _Light in Africa_, p. 212 (Bantu); Campbell, _Travels in South Africa_, p. 517, and Leslie, _Among the Zulus and Amatongas_, p. 201 (Kafirs).]

[Footnote 151: _Supra_, i. 593 _sq._]

Theft is not only punished by men, but is supposed to be avenged by supernatural powers. The Alfura of Halmahera are said to be honest only because they fear that they otherwise would be subject to the punishment of spirits.[152] The natives of Efate, in the New Hebrides, maintained that theft was condemned by their gods.[153] In Aneiteum, another island belonging to the same group, thieves were supposed to be punished after death.[154] In Netherland Island they {60} were said to go to a prison of darkness under the earth;[155] according to the beliefs of the Banks Islanders they were excluded from the true Panoi or Paradise.[156] On the Gold Coast, "if a man had property stolen from his house, he might go to the priest of the local deity he was accustomed to worship, state the loss that had befallen him, make an offering of a fowl, rum, and eggs, and ask the priest to supplicate the god to punish the thief."[157] In Southern Guinea fetishes are inaugurated to detect and punish certain kinds of theft, and persons who are cognisant of such crimes and do not give information about them are also liable to be punished by the fetish.[158] The Bechuanas speak of an unknown being, vaguely called by the name of Lord and Master of things (Mongalinto), who punishes theft. One of them said: "When it thunders every one trembles; if there are several together, one asks the other with uneasiness, Is there any one amongst us who devours the wealth of others? All then spit on the ground saying, We do not devour the wealth of others. If a thunderbolt strikes and kills one of them, no one complains, no one weeps; instead of being grieved, all unite in saying that the Lord is delighted (that is to say, he has done right) with killing that man; we also say that the thief eats thunderbolts, that is to say, does things which draw down upon men such judgments."[159]

[Footnote 152: Kükenthal, _Forschungsreise in den Molukken_, p. 188.]

[Footnote 153: Macdonald, _Oceania_, p. 208.]

[Footnote 154: Turner, _Samoa_, p. 326.]

[Footnote 155: _Ibid._ p. 301.]

[Footnote 156: Codrington, _Melanesians_, p. 274.]

[Footnote 157: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 75. See also Cruickshank, _op. cit._ ii. 152, 160, 184; Schultze, _Der Fetischismus_, p. 91.]

[Footnote 158: Wilson, _Western Africa_, p. 275.]

[Footnote 159: Arbousset and Daumas, _Exploratory Tour to the North-East of the Colony of the Cape of Good Hope_, p. 322 _sq._]

According to the Zoroastrian Yasts, Rashnu Razista was "the best killer, smiter, destroyer of thieves and bandits."[160] In Greece Zeus [Greek: ktê/sios] was a guardian of the family property;[161] and according to a Roman tradition the domestic god repulsed the robber and kept off the enemy.[162] The removing of landmarks {61} has frequently been regarded as sacrilegious.[163] It was strictly prohibited by the religious law of the Hebrews.[164] In Greece boundaries were protected by Zeus [Greek: o(/rios]. Plato says in his 'Laws':--"Let no one shift the boundary line either of a fellow-citizen who is a neighbour, or, if he dwells at the extremity of the land, of any stranger who is conterminous with him. . . . Every one should be more willing to move the largest rock which is not a land mark, than the least stone which is the sworn mark of friendship and hatred between neighbours; for Zeus, the god of kindred, is the witness of the citizen, and Zeus, the god of strangers, of the stranger, and when aroused terrible are the wars which they stir up. He who obeys the law will never know the fatal consequences of disobedience, but he who despises the law shall be liable to a double penalty, the first coming from the Gods, and the second from the law."[165] The Romans worshipped Terminus or Jupiter Terminalis as the god of boundaries.[166] According to an old tradition, Numa directed that every one should mark the bounds of his landed property by stones consecrated to Jupiter, that yearly sacrifices should be offered to them at the festival of the Terminalia, and that, "if any person demolished or displaced these bound-stones, he should be looked upon as devoted to this god, to the end that anybody might kill him as a sacrilegious person with impunity and without being defiled with guilt."[167] In the higher religions theft of any kind is frequently condemned as a sin.

[Footnote 160: _Yasts_, xii. 8.]

[Footnote 161: Aeschylus, _Supplices_, 445. Farnell, _Cults of the Greek States_, i. 55.]

[Footnote 162: Ovid, _Fasti_, v. 141.]

[Footnote 163: Trumbull, _The Threshold Covenant_, p. 166 _sq._]

[Footnote 164: _Deuteronomy_, xix. 14; xxvii. 17. _Proverbs_, xxii. 28; xxiii. 10 _sq._ _Hosea_, v. 10. _Cf._ _Job_, xxiv. 2.]

[Footnote 165: Plato, _Leges_, viii. 842 _sq._ Demosthenes, _Oratio de Halonneso_, 39, p. 86. See also Hermann, _Disputatio de terminis eorumque religione apud Græcos_, _passim_.]

[Footnote 166: Ovid, _Fasti_, ii. 639 _sqq._ Festus, _De verborum significatione_ 'Termino.' Lactantius, _Divinæ Institutiones_, i. 10 (Migne, _Patrologiæ cursus_, vi. 227 _sqq._). Pauly, _Real-Encyclopädie der classischen Alterthumswissenschaft_, vi. pt. ii. 1707 _sqq._ Fowler, _Roman Festivals of the Period of the Republic_, p. 324 _sqq._]

[Footnote 167: Dionysius of Halicarnassus, _Antiquitates Romanæ_, ii. 74. Plutarch, _Numa_, xvi. i. Festus, _op. cit._ 'Termino.']

This religious sanction given to ownership is no doubt in some measure due to the same circumstances as, in certain cases, make morality in general a matter of divine {62} concern--a subject which will be dealt with in a future chapter. But there are also special reasons which account for it. Partly it has its origin in magic practices, particularly in the curse.

Cursing is a frequent method of punishing criminals who cannot be reached in any other way.[168] In the Book of Judges we read of Micah's mother who had pronounced a curse with reference to the money stolen from her, and afterwards, when her son had confessed his guilt, hastened to render it ineffective by a blessing.[169] In early Arabia the owner of stolen property had recourse to cursing in order to recover what he had lost.[170] In Samoa "the party from whom anything had been stolen, if he knew not the thief, would seek satisfaction in sitting down and deliberately cursing him."[171] The Kamchadales "think they can punish an undiscovered theft by burning the sinews of the stonebuck in a publick meeting with great ceremonies of conjuration, believing that as these sinews are contracted by the fire so the thief will have all his limbs contracted."[172] Among the Ossetes, if an object has been secretly stolen, its owner secures the assistance of a sorcerer. They proceed together to the house of any person whom they suspect, the sorcerer carrying under his arm a cat, which is regarded as a particularly enchanted animal. He exclaims, "If thou hast stolen the article and dost not restore it to its owner, may this cat torment the souls of thy ancestors!" And such an imprecation is generally followed by a speedy restitution of the stolen property. Again, if their suspicions rest upon no particular individual, they proceed in the same manner from house to house, and the thief then, knowing that his turn must come, frequently confesses his guilt at once.[173] A common mode of detecting the perpetrator of a theft is to compel the suspected individual to make oath, {63} that is to say, to pronounce a conditional curse upon himself.[174]

[Footnote 168: See, _e.g._, Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. ii. 149 (Karens).]

[Footnote 169: _Judges_, xvii. 2.]

[Footnote 170: Wellhausen, _Reste arabischen Heidentums_, p. 192.]

[Footnote 171: Turner, _Nineteen Years in Polynesia_, p. 318.]

[Footnote 172: Krasheninnikoff, _History of Kamschatka_, p. 179 _sq._]

[Footnote 173: von Haxthausen, _Transcaucasia_, p. 398 _sq._]

[Footnote 174: von Struve, in _Das Ausland_, 1880, p. 796 (Samoyedes). Worcester, _Philippine Islands_, p. 412 (Mangyans of Mindoro). Turner, _Nineteen Years in Polynesia_, p. 292 _sq._ (Samoans). Bosman, _op. cit._ p. 125 (Negroes of the Gold Coast). Bowdich, _Mission to Ashantee_, p. 267; &c.]

Cursing is resorted to not only for the purpose of punishing thieves or compelling them to restore what they have stolen, but also as a means of preventing theft. In the South Sea Islands it is a common practice to protect property by making it _taboo_, and the tabooing of an object is, as Dr. Codrington puts it, "a prohibition with a curse expressed or implied."[175] The curse is then, in many cases, deposited in some article which is attached to the thing or place it is intended to protect. The mark of taboo, in Polynesia called _rahui_ or _raui_, sometimes consists of a cocoa-nut leaf plaited in a particular way,[176] sometimes of a wooden image of a man or a carved post stuck in the ground,[177] sometimes of a bunch of human hair or a piece of an old mat,[178] and so forth. In Samoa there were various forms of taboo which formed a powerful check on stealing, especially from plantations and fruit-trees, and each was known by a special name indicating the sort of curse which the owner wished would fall on the thief. Thus, if a man desired that a sea-pike should run into the body of the person who attempted to steal, say, his bread-fruits, he would plait some cocoa-nut leaflets in the form of a sea-pike, and suspend it from one or more of the trees which he wanted to protect. This was called the "sea-pike taboo"; and any ordinary thief would be terrified to touch a tree from which this was suspended, believing that, if he did so, a fish of the said description would dart up and mortally wound him the next time he went to the sea. The "white shark taboo" was done by plaiting a cocoa-nut leaf in the form of a shark, and was tantamount to an {64} expressed imprecation that the thief might be devoured by the white shark when he went to fish. The "cross-stick taboo," again, consisted of a stick suspended horizontally from the tree, and meant that any thief touching the tree would have a disease running right across his body and remaining fixed there till he died.[179] Exactly equivalent to the taboo of the Pacific Islanders is the _pomali_ of the natives of Timor; "a few palm leaves stuck outside a garden as a sign of the _pomali_ will preserve its produce from thieves as effectually as the threatening notice of man-traps, spring-guns, or a savage dog, would do with us."[180] Among the Santals, whenever a person "is desirous of protecting a patch of jungle from the axes of the villagers, or a patch of grass from being grazed over, or a newly sown field from being trespassed upon, he erects a bamboo in his patch of grass or field, to which is affixed a tuft of straw, or in the case of jungle some prominent and lofty tree has the same prohibitory mark attached, which mark is well understood and strictly observed by all parties interested."[181] So also in Madagascar "on rencontre sur les chemins, on voit dans les champs de longs bâtons munis à leur sommet d'un paquet d'herbes et qui sont plantés en terre soit pour interdire le passage du terrain soit pour indiquer que les récoltes sont réservées à l'usage d'individus déterminés."[182] Among the Washambala the owner of a field sometimes puts a stick wound round with a banana leaf on the road to it, believing that anybody who without permission enters the field "will be subject to the curse of this charm."[183] The Wadshagga protect a doorless hut against burglars by placing a banana leaf over the threshold, and any maliciously inclined person who dares to step over it is supposed to get ill or die.[184] The Akka "stick an arrow in a bunch of bananas still on the stalk to mark it as their own {65} when ripe," and then not even the owner of the tree would think of touching the fruit so claimed by others.[185] Of the Barotse we are told that "when they do not want a thing touched they spit on straws and stick them all about the object."[186] When a Balonda has placed a beehive on a tree, he ties a "piece of medicine" round the trunk, and this will prove sufficient protection against thieves.[187] Jacob of Edessa tells us of a Syrian priest who wrote a curse and hung it on a tree, that nobody might eat the fruit.[188] In the early days of Islam a masterful man reserved water for his own use by hanging pieces of fringe of his red blanket on a tree beside it, or by throwing them into the pool;[189] and in modern Palestine nobody dares to touch the piles of stones which are placed on the boundaries of landed property.[190] The old inhabitants of Cumaná on the Caribbean Sea used to mark off their plantations by a single cotton thread, in the belief that anybody tampering with these boundary marks would speedily die.[191] A similar idea seems still to prevail among the Indians of the Amazon. Among the Jurís a traveller noticed that in places where the hedge surrounding a field was broken, it was replaced by a cotton string; and when Brazilian Indians leave their huts they often wind a piece of the same material round the latch of the door.[192] Sometimes they also hang baskets, rags, or flaps of bark on their landmarks.[193] In these and in various other instances just referred to it is not expressly stated that the taboo mark embodies a curse, but their similarity to cases in which it does so is striking enough to {66} preclude much doubt about their real meaning. It is true that an object which is sacred by itself may, on that account, protect everything in its neighbourhood;[194] in Morocco any article deposited in the _[h.]orm_ of a saint is safe, and among pagan Africans the same effect is produced by using fetishes as protectors of fields or houses.[195] But a thing of inherent holiness may also be chosen for taboo purposes for the reason that its sanctity is supposed to give particular efficacy to any curse with which it may be loaded.

[Footnote 175: Codrington, _Melanesians_, p. 215.]

[Footnote 176: Taylor White, in _Jour. Polynesian Soc._ i. 275.]

[Footnote 177: Hamilton, _Maori Art_, p. 102; Thomson, _Story of New Zealand_, i. 102; Polack, _op. cit._ ii. 70 (Maoris). Ellis, _Polynesian Researches_, iii. 116 (Tahitians).]

[Footnote 178: Thomson, _op. cit._ i. 102 (Maoris). See also Colenso, _op. cit._ p. 34 (Maoris); Ellis, _Polynesian Researches_, iii. 201 (Tahitians).]

[Footnote 179: Turner, _Nineteen Years in Polynesia_, p. 294 _sqq._]

[Footnote 180: Wallace, _Malay Archipelago_, p. 149 _sq._]

[Footnote 181: Sherwill, 'Tour through the Rájmahal Hills,' in _Jour. Asiatic Soc. Bengal_, xx. 568.]

[Footnote 182: van Gennep, _Tabou et totémisme à Madagascar_, p. 184 _sqq._]

[Footnote 183: Lang, in Steinmetz, _Rechtverhältnisse_, p. 263.]

[Footnote 184: Volkens, _op. cit._ p. 254.]

[Footnote 185: Junker, _Travels in Africa during the Years 1882-1886_, p. 86.]

[Footnote 186: Decle, _op. cit._ p. 77.]

[Footnote 187: Livingstone, _Missionary Travels_, p. 285.]

[Footnote 188: Robertson Smith, _Religion of the Semites_, p. 164, n. 1.]

[Footnote 189: _Ibid._ p. 336, n. 1.]

[Footnote 190: Pierotti, _Customs and Traditions of Palestine_, p. 95 _sq._ According to Roman sources (_Digesta_, xlvii. 11. 9), there was in the province of Arabia an offence called [Greek: skopelismo/s], which consisted in laying stones on an enemy's ground as a threat that if the owner cultivated the land "malo leto periturus esset insidiis eorum, qui scopulos posuissent"; and so great was the fear of such stones that nobody would go near a field where they had been put.]

[Footnote 191: Gomara, _Primera parte de la historia general de las Indias_, ch. 79 (_Biblioteca de autores españoles_, xxii. 206).]

[Footnote 192: von Martius, _Von dem Rechtszustande unter den Ureinwohnern Brasiliens_, p. 37 _sq._]

[Footnote 193: _Ibid._ p. 34.]

[Footnote 194: _Cf._ van Gennep, _op. cit._ p. 185 (natives of Madagascar). It was an ancient Roman usage to inter the dead in the field belonging to the family, and in the works of the elder Cato there is a formula according to which the Italian labourer prayed the manes to take good care against thieves (Fustel de Coulanges, _op. cit._ p. 75). Cicero says (_Pro domo_, 41) that the house of each citizen was sacred because his household gods were there.]

[Footnote 195: Rowley, _Africa Unveiled_, p. 174. Bastian, _Afrikanische Reisen_, p. 78 _sq._ 3 Nassau, _Fetichism in West Africa_, p. 85. _Cf._ Schneider, _Die Religion der afrikanischen Naturvölker_, p. 230. If we knew the ceremonies with which magicians transform ordinary material objects into fetishes, we might perhaps find that they charge them with curses. Dr. Nassau says (_op. cit._ p. 85):--"For every human passion or desire of every part of our nature, for our thousand necessities or wishes, a fetich can be made, its operation being directed to the attainment of one specified wish." See also Schultze, _Der Fetischismus_, p. 109.]

We have previously noticed another method of charging a curse with magic energy, namely, by giving it the form of an appeal to a supernatural being.[196] So also spirits or gods are frequently invoked in curses referring to theft. On the Gold Coast, "when the owner of land sees that some one has been making a clearing on his land, he cuts the young inner branches of the palm tree and hangs them about the place where the trespass has been committed. As he hangs each leaf he says something to the following effect: 'The person who did this and did not make it known to me before he did it, if he comes here to do any other thing, may fetish Katawere (or Tanor or Fofie or other fetish) kill him and all his family.'"[197] In Samoa, in the case of a theft, the suspected persons had to swear before the chiefs, each one invoking the village god to send swift destruction if he had committed the crime; and if all had sworn and the culprit was still undiscovered, the chiefs solemnly made a similar invocation on behalf of the {67} thief.[198] The Hawaiians seem likewise to have appealed to an avenging deity in certain cursing ceremonies, which they performed for the purpose of detecting or punishing thieves.[199] In ancient Greece it was a custom to dedicate a lost article to a deity, with a curse for those who kept it.[200] Of the Melanesian taboo, again, Dr. Codrington observes that the power at the back of it "is that of the ghost or spirit in whose name, or in reliance upon whom, it is pronounced."[201] In Ceylon, "to prevent fruit being stolen, the people hang up certain grotesque figures around the orchard and dedicate it to the devils, after which none of the native Ceylonese will dare even to touch the fruit on any account. Even the owner will not venture to use it till it be first liberated from the dedication."[202] On the landmarks of the ancient Babylonians, generally consisting of stone pillars in the form of a phallus, imprecations were inscribed with appeals to various deities. One of these boundary stones contains the following curse directed against the violator of its sacredness:--"Upon this man may the great gods Anu, Bêl, Ea, and Nusku, look wrathfully, uproot his foundation, and destroy his offspring"; and similar invocations are then made to many other gods.[203]

[Footnote 196: _Supra_, i. 564.]

[Footnote 197: _Jour. African Soc._ 110 xviii. January, 1906, p. 203.]

[Footnote 198: Turner, _Samoa_, p. 19. _Idem_, _Nineteen Years in Polynesia_, p. 292 _sq._]

[Footnote 199: Jarves, _History of the Hawaiian Islands_, p. 20.]

[Footnote 200: Rouse, _Greek Votive Offerings_, p. 339.]

[Footnote 201: Codrington, _op. cit._ p. 215.]

[Footnote 202: Percival, _Account of the Island of Ceylon_, p. 198.]

[Footnote 203: Trumbull, _The Threshold Covenant_, p. 166 _sq._ Hilprecht, quoted _ibid._ p. 167 _sqq._]

Now we can understand why gods so frequently take notice of offences against property. They are invoked in curses uttered against thieves; the invocation in a curse easily develops into a genuine prayer, and where this is the case the god is supposed to punish the offender of his own free will. Besides, he may be induced to do so by offerings. And when often appealed to in connection with theft, a supernatural being may finally come to be looked upon as a guardian of property. This, for instance, I take to be the explanation of the belief prevalent among the Berbers {68} of [H.]a[h.]a, in Southern Morocco, that some of the local saints punish thieves who approach their sanctuaries, even though the theft was committed elsewhere; being constantly appealed to in oaths taken by persons suspected of theft, they have become the permanent enemies of thieves. We can, further, understand why in some cases certain offences against property have actually assumed the character of a sacrilege, even apart from such as are committed in the proximity of a supernatural being. Curses are sometimes personified and elevated to the rank of divine agents; this, as we have seen, is the origin of the Erinyes of parents, beggars, and strangers, and of the Roman _divi parentum_ and _dii hospitales_; and this is also in all probability the origin of the god Terminus.[204] Or the curse may be transformed into an attribute of the chief god, not only because he is frequently appealed to in connection with offences of a certain kind, but also because such a god has a tendency to attract supernatural forces which are in harmony with his general nature. This explains the origin of conceptions such as Zeus [Greek: o(/rios] and Jupiter Terminalis, as well as the extreme severity with which Yahweh treated the removal of landmarks. In all these cases there are indications of a connection between the god and a curse. Apart from other evidence to be found in Semitic antiquities, there is the anathema of _Deuteronomy_, "Cursed be he that removeth his neighbour's landmark."[205] That the boundary stones dedicated to Zeus [Greek: o(/rios] were originally charged with imprecations appears from a passage in Plato's 'Laws' quoted above,[206] as also from inscriptions made on them.[207] The Etruscans cursed anyone who should touch or displace a boundary mark:--Such a person shall be condemned by the gods; his house shall disappear; his race shall be extinguished; his limbs shall be covered with ulcers and waste away; his land shall no longer produce {69} fruits; hail, rust, and the fires of the dog-star shall destroy his harvests.[208] Considering the important part played by blood as a conductor of imprecations, it is not improbable that the Roman ceremony of letting the blood of a sacrificial animal flow into the hole where the landmark was to be placed[209] was intended to give efficacy to a curse. In some parts of England a custom of annually "beating the bounds" of a parish has survived up to the present time, and this ceremony was formerly accompanied by religious services, in which a clergyman invoked curses on him who should transgress the bounds of his neighbour, and blessings on him who should regard the landmarks.[210]

[Footnote 204: _Cf._ Festus, _op. cit._ 'Termino':--"Numa Pompilius statuit eum, qui terminum exarasset, et ipsum, et boves sacros esse."]

[Footnote 205: _Deuteronomy_, xxvii. 17. _Cf._ _Genesis_, xxxi. 44 _sqq._]

[Footnote 206: Plato, _Leges_, viii. 843: ". . . [Greek: ê)\n smikron li/thon o(ri/zonta philai/n kai\ e)/chthran e)/norkon para\ theô=n.]"]

[Footnote 207: Xenophon, _Anabasis_, v. 3. 13. Hermann, _Disputatio de terminis apud Græcos_, p. 11.]

[Footnote 208: _Rei agrariæ auctores legesque variæ_, edited by G[oe]sius, p. 258 _sq._]

[Footnote 209: Siculus Flaccus, 'De conditionibus agrorum,' in _Rei agrariæ auctores_, p. 5.]

[Footnote 210: Dibbs, 'Beating the Bounds,' in _Chambers's Edinburgh Journal_, N.S. xx. (1853) 49 _sqq._ Trumbull, _The Threshold Covenant_, p. 174 _sq._]

The practice of cursing a thief may possibly even be at the bottom of the belief of some savages that such a person will be punished after death. In a following chapter we shall notice instances where the efficacy of a curse is supposed to extend beyond the grave. But we shall also find other reasons for savage doctrines of retribution in the world to come. In the cases referred to above it is not expressly said that the _post mortem_ punishment of the thief is inflicted by a god.

* * * * *

I have here only dealt with rules relating to property which have been recognised by custom or law. But the established principles of ownership have not always been admitted to be just: in the civilised countries of the West they have called forth an opposition which is rapidly gaining in strength. The limited scope of the present work does not allow me to attempt a detailed account of this movement, with its variety of arguments and its multitudinous schemes of reform. The main reasons for complaint are:--first, that our actual law of property does not ensure to every labourer the whole produce of his labour; secondly, that it does not provide for every want {70} a satisfaction proportionate to the available means. However much the opinions of the different schools of socialists may vary, every socialist organisation of property aims either at guaranteeing to the working-classes the entire product of their industry, or at reducing to just proportions individual needs and existing means of satisfaction by recognising the claim of every member of society to the commodities and services necessary to support existence, in preference to the satisfaction of the less pressing wants of others.[211] These aims are greatly hampered by the present system, in which land and capital are the property of private individuals freely struggling for increase of wealth, and especially by the legally recognised existence of unearned income[212]--the "rent" of the Saint-Simonians, the "surplus value" (_Mehrwert_) of Thompson and Marx,--for which the favoured recipient returns no personal equivalent to society, and which he is able to pocket because the wage labourer receives in money-wages less than the full value of the produce of his work. We have here a conflict between different principles of acquisition. Both the rule that the owner of a thing also owns what results from it, and the law of inheritance, leading as they do to unearned income, are intruding upon the principle of labour as a source of property. They, moreover, interfere with the right to subsistence, which in some measure, though often insufficiently, is recognised in all human societies;[213] for, as Marx observed, the accumulation of wealth at one pole means the accumulation of misery at the opposite pole.[214] This conflict between different principles or rights, all of which have deep foundations in human nature and the conditions of social life, has been brought about by certain {71} facts inherent in progressive civilisation. In simple societies the unearned income is small, because no fortunes exist, and the wants of those who are incapable of earning their own livelihood are provided for by the system of mutual aid. Progress in culture, on the other hand, has been accompanied by a more unequal distribution of wealth, and also by a decrease of social solidarity as a result of the increase and greater differentiation of the social unit. The unearned income has grown larger, the disproportion between the returns on capital and the reward for labour has in many cases become enormous, and hand in hand with the opulence of some goes the destitution of others. At the same time the injustice of prerogatives based on birth or fortune is keenly felt, the dignity of labour is recognised, and the working-classes are every day becoming more conscious both of their power and their rights. All this has resulted in a strong and wide-spread conviction that the actual law of property greatly differs from the ideal law. But much struggle will no doubt be required to bring them in harmony with one another. The present rights of property are supported not only by personal interests, but also by a deep-rooted feeling, trained in the school of tradition, that it would be iniquitous of the State to interfere with individuals' long-established claims to use at their pleasure the objects of wealth. The new scheme, on the other hand, derives strength from the fact that it aims at rectifying legal rights in accordance with existing needs, and that it lays stress on a method of acquisition which more than any other seems to appeal to the natural sense of justice in man. We are utterly unable to foresee in detail the issue of this struggle. But that the law of property will sooner or later undergo a radical change must be obvious to every one who realises that, though ideas of right and wrong may for some time outlive the conditions from which they sprang, they cannot do so for ever.

[Footnote 211: See Menger, _Right to the whole Produce of Labour_, p. 5 _sqq._, Goos, _op. cit._ ii. 61.]

[Footnote 212: The term "unearned income" (_arbeitsloses Einkommen_) has been proposed by Menger (_op. cit._ p. 3).]

[Footnote 213: See _supra_, ch. xxiii., vol. i. 526 _sqq._ Among the Eskimo about Behring Strait (Nelson, in _Ann. Rep. Bur. Ethn._ xviii. 294) and the Greenlanders (Rink, _Eskimo Tales_, p. 29 _sq._), if a man borrows an article from another and fails to return it, the owner is not entitled to claim it back, as they consider that when a person has enough property to enable him to lend some of it he has more than he needs.]

[Footnote 214: Marx, _Capital_, p. 661.]