CHAPTER XXIX. The Right of Property (_concluded_)

THE RIGHT OF PROPERTY (concluded)

ACCORDING to an old theory set forth by Roman jurists, and afterwards much emphasised by Grotius, 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. 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; by the nomad's or settler's right to the previously unoccupied place where {36} he has pitched his tent or built his dwelling; by the agriculturist's right to the land of which he has taken possession by cultivating the soil; by a tribe's or community's right to the territory which it has occupied. 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." 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." 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." 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. 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, whilst in other cases he at any rate has a claim to part of its value. 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." 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." 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; and among the Tunguses whoever finds a beast in another man's trap may take half the meat. 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." 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.

12: Merker, Die Masai, p. 204. Desoignies, in Steinmetz, Rechtsverhältnisse, p. 281 (Msalala). Post, Grundriss der ethnol. Jurisprudenz, ii. 605.]

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." 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"; 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." Among many peoples an animal belongs entirely or chiefly to the person who first wounded it, {39} however slightly, or who first saw it, 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; if a bear is killed, it belongs to him who first discovered it; and when a whale is taken, the very spectators have an equal right to it with the harpooners.

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; and among agricultural savages the cultivator frequently loses his right to the field when he makes no more use of it--though, on the other hand, instances are not wanting in which cultivation gives proprietary {40} rights of a more lasting nature. 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. Among the natives of the Sansanding States the right to a house is lost by its being abandoned. In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal. 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. 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. 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; but it seems that later on the period of prescription was extended to thirty years or even more. 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.

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,--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." 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. If a Greenlander finds a dead seal with a harpoon in it, he keeps the seal, but restores the harpoon to its owner. 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. In various parts of Africa he who has dug a well has a right to the exclusive disposal of it. 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. 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." 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. In old Hindu law-books the performance of labour is specified as one of the lawful modes of acquiring property. 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. 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.

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; and, to take another example, the power of testation, if recognised at all, is often subject to restrictions. 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. 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. 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." 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. Such is still the law of some continental nations.

{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, 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; 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. Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance 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. 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. Sometimes the rules of inheritance make little or no distinction between men and women; sometimes a decided preference is given to the {45} men[;63] sometimes the women inherit nothing; whereas in a few exceptional cases the women are the only inheritors. 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. Very frequently the eldest son, or, where the maternal system of descent prevails in {46} full, the eldest uterine brother or the eldest son of the eldest uterine sister, is the chief or even the only heir. But there are also several instances in which this privilege is granted to the youngest son. Thus, among the Hos of India he apparently inherits all the property of his father; 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; 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." 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; 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. Among the Kukis, in default of legitimate issue, a natural son succeeds to his father's property before all other male relations; among the Bódo and Dhimáls sons by concubinage or adoption get equal shares with sons born in wedlock; 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. Among other uncivilised peoples, {47} again, slaves cannot inherit at all, and where they are allowed to possess property the master is sometimes the legitimate heir of his slave.

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. In China women only inherit in the very last resort, failing all male relatives. Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit; but the later law conferred on daughters the right of heirship in the absence of sons. 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; but according to the old law of Medina women could not inherit at all. 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. In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved. In Attic law sons excluded {48} daughters from succession, and the same was the case among the Scandinavian peoples still in the later Middle Ages. In England women are even to this day postponed to men in the order of succession to real property. Special privileges in the division of the father's property were granted to the eldest son by the Hebrews and Hindus, and traces of primogeniture are met with in ancient Greek legislation. In the history of English law we find not only primogeniture, but ultimogeniture as well. 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. Among the Hebrews the sons of concubines had a right of inheritance, but whether on an equality with the other sons we do not know. 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. 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. 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. 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. 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. 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. 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. In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.

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. 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. 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.

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, though its prevalence at the lower stages of civilisation has often been exaggerated. 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.

* * * * *

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. Sticklebacks show obvious signs of anger when their territory is invaded by other sticklebacks. Birds defend their nests against the attacks of intruders. 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. 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. 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. 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; 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; Captain Gordon Stables's cat, which had her place on the table at meals, never allowed any unauthorised interference with the viands. In men such sympathetic resentment naturally develops into genuine moral disapproval.

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. 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; whilst another argument adduced in favour of prescription is, that long possession generally implies labour and that labour gives ownership. 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.

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. 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. 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; 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. 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; 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. 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.

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; or because the women are less in need of property, being supported by their male relatives or husbands; or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge; or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars; or for the purpose of preventing the estate from passing to another family or tribe. 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. 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. 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. 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, but partly also because he had remained with his father till his death, 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." 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." 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.

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, are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.

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." 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. 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. 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, 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. 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, 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. 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.

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. The natives of Efate, in the New Hebrides, maintained that theft was condemned by their gods. In Aneiteum, another island belonging to the same group, thieves were supposed to be punished after death. In Netherland Island they {60} were said to go to a prison of darkness under the earth; according to the beliefs of the Banks Islanders they were excluded from the true Panoi or Paradise. 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." 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. 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."

According to the Zoroastrian Yasts, Rashnu Razista was "the best killer, smiter, destroyer of thieves and bandits." In Greece Zeus [Greek: ktê/sios] was a guardian of the family property; and according to a Roman tradition the domestic god repulsed the robber and kept off the enemy. The removing of landmarks {61} has frequently been regarded as sacrilegious. It was strictly prohibited by the religious law of the Hebrews. 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." The Romans worshipped Terminus or Jupiter Terminalis as the god of boundaries. 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." In the higher religions theft of any kind is frequently condemned as a sin.

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. 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. In early Arabia the owner of stolen property had recourse to cursing in order to recover what he had lost. 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." 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." 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. 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.

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." 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, sometimes of a wooden image of a man or a carved post stuck in the ground, sometimes of a bunch of human hair or a piece of an old mat, 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. 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." 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." 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." 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." 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. 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. 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." 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. 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. 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; and in modern Palestine nobody dares to touch the piles of stones which are placed on the boundaries of landed property. 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. 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. Sometimes they also hang baskets, rags, or flaps of bark on their landmarks. 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; 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. 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.

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. 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.'" 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. 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. In ancient Greece it was a custom to dedicate a lost article to a deity, with a curse for those who kept it. 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." 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." 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.

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. 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." 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, as also from inscriptions made on them. 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. 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 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.

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. 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--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; for, as Marx observed, the accumulation of wealth at one pole means the accumulation of misery at the opposite pole. 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.