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it is said that the slave “possesses nothing of his own, except his peculium, that is to say, the sum of money, or movable estate, which his master chooses he should possess. The Spanish and Portuguese slave laws were more humane. According to them the money and effects which a slave acquired by his labour at times set apart for his own use or by any other means, were legally his own and could not be seized by the master.?

Among many peoples, finally, we find the theory that nobody but the chief or king has proprietary rights, and that it is only by his sufferance that his subjects hold their possessions. The soil, in particular, is regarded

But even autocrats are tied by custom, and in practice the right of ownership is not denied to their subjects.

In the next chapter we shall try to explain all these facts :--the existence of proprietary rights, the refusal of such rights to certain classes of persons, the different



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Morgan, Civil Code of Louisiana, own people (Brownlee, in Maclean, art. 175.

Compendium of Kafir Laws and CusStephen, op. cit. i. 60. Couty, toms, p. 112 sq. Trollope, South L'esílavage au Brésil, p. 9.

Africa, ii. 303. Holden, Past and * Butler, Travels in Assam, p. 94 Future of the Kaffir Races, p. 338). (Kukis). Beecham, Ashantee, p. 96. + Waitz, op. cit. ii. 128 (Indian Spencer, Descriptive Sociology, African tribes of North America); v. pt. i. Races, p. 12 (Abyssinians). Decle, op. 153 (Malays). Ellis, Polynesian Recit. p. 70 599. (Barotse). Kidd, The searches, iii. 115 (Sandwich Islanders). Essential kafir, p. 353. Ellis, His- Bory de St. Vincent, Essais sur les lory of Madagascar, i. 342. Post, Isles Fortunées, p. 64 (Guanches). Afrikanische Jurisprudenz, ii. 171. Nicole, in Steinmetz, RechtsverhältPercy Smith, Uea, Western Pacific,' nisse, p. 136 (Diakité-Sarracolese). in Jour. Polynesian Soc. i. 112. Tre- Baskerville, ibid. p. 201 (Waganda). gear, ' Easter Island,' ibid. i. 99. In Beverley, ibid. p. 216 (Wagogo). Lang, Samoa it is a maxim that a chief cannot ibid. p. 262 (Washambala). Rautanen, steal ; he is merely considered to "take" ibid. p. 343 (Ondongal, Stuhlmann, the thing which he covets (Pritchard, Mit Emin Pasha ins Herz von Africa, Polynesian Reminiscences, p. 104). In p. 75 (Wanyamwezi). Post, AfrikaVea, when a chief enters a house, he nische Jurisprudenz, ii. 170 sq. ; Ratzel, enjoys the right to take all in it that he op. cit. i. 126 ; de Laveleye-Bücher, pleases (Percy Smith, in Jour. Poly. Das Ureigenthum, p. 275 (various nesian Soc. i. 113). Among the Kafirs

African peoples).

Kohler, Rechtsverno case can be brought against a chief gleichende Studien, p. 235 (Kandian for theft, except if it be committed on law). Giles, Strange Stories from a the property of a person belonging to Chinese Studio, ii. 369, n. 21 (Chinese). another tribe ; and even the children of

Supra, i. 162. chiefs are permitted to steal from their VOL. II


degrees of condemnation attending theft under different circumstances. But before we can understand the psychological origin of the right of ownership and the regard in which it is held, it is necessary to examine the methods by which it is acquired, the external facts which give to certain individuals a right to the exclusive disposal of certain things.

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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 cpossession 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, lies 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

which he has killed or captured ; : by the nomad's or settler's right to the previously unoccupied place where

the game

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I Grotius, De jure belli et pacis, ii. 3. 3.

? Locke, Treatises of Government, ii . 5. 27 $99, p. 200 s99. Thiers, De la propriété, p. 94 599. Hume remarks

Treatise of Human Nature, ii. 3 [Philosophical Works, ii. 276, n. 1]) :* There are several kinds of occupation, where we cannot be said to join our labour to the object we acquire ; as when we possess a meadow by grazing our cattle upon it.”

Curr, Recollections of Squatting in Victoria, p. 265 (Bangerang tribe). Murdoch, Ethnol. Results of the Point Barrow Expedition, in Ann.

Rep. Bur. Ethn. ix. 428 (Point Barrow Eskimo). Ahlqvist, Unter Wogulen und Ostjaken,' in Ada Soc. Scientiarum Fennica, xiv. 166 (Voguls). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Post, Afrikanische Jurisprudenz, ii. 162 sq. Andree, 'Ethnogr. Bemerkungen zu einigen Rechtsgebräuchen,' in Globus, xxxviii. 287. Among some Indian tribes of North America it was customary for individuals to mark their arrows, in order that the stricken game might fall to the man by whose arrow it had been de. spatched (Powell, in Ann. Rep. Bur. Ethn. iii. p. lvii.).



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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.” 4 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


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

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von Martius, Von dem Rechtszu. Religion of the Semites, pp. 95, 96, 143 stande unter den Ureinwohnern Brasi- (ancient Semitic custom and Muhamliens, p. 34 (Brazilian aborigines). medan law). Waitz, Anthropologie der Dalager, Grønlandske Relationer, p. 15; Naturvölker, i. 440. Dargun, Nansen, Eskimo Life, p. 109 (Green- sprung und Entwicklungs-Geschichte landers). Marsden, History of Sumatra, des Eigenthums,' in Zeitschr. f. vergl. pp. 68, 244 (Rejangs). Steinmetz, Rechtswiss. v. 71 sqq. Post, EntwickRechtsverhältnisse, P: 53 (Banaka and lungsgeschichte des Familienrechts, p. Bapuku). Kraft, ibid. p. 293 (Wapo- 283 sqq. Idem, Grundriss der ethnol. komo). Decle, Three Years in Savage Jurisprudenz, i. 342 999. See also Africa, p. 487 (Wakamba). Robertson

infra, p. 39 sq. Smith, Religion of the Semites, pp. 95, 3 Thomson, Story of New Zealand, 96, 143 (ancient Semitic custom and i. 96; Polack, op. cit. ii. 71 (Maoris). Muhammedan law).

Mademba, in Steinmetz, Rechtsverhält. 2 Thomson, Savage Island, p. 137. nisse, p 90 (natives of the Sansanding Polack, Manners and Customs of the States). New Zealanders, ii. 69; Thomson, Story • Macpherson, Memorials of Service of New Zealand, i. 97. Munzinger, Die in India, p. 62. Sitten und das Recht der Bogos, p. 69. 5 Andersson, Lake Ngami, p. 115. Cruickshank, Eighteen Years on the See also Viehe, in Steinmetz, Rechtsver. Gold Coast, ii. 277. Leuschner, in

hältnisse, p. 310. Steinmetz, Rechtsverhältnisse, p. 24 6 Mathew, in Curr, The Australian (Bakwiri). Ibid. p. 53 (Banaka and Race, iii. 162. On the finder's right Bapuku). Tellier, ibid. p. 178 (Kreis to wild honey see Munzinger, Die Kita). Dale, in Jour. Anthr. Inst. Sitten und das Recht der Bogos, p. 70; XXV. 230 (Wabondei). Laws of Manu, Steinmetz, Rechtsverhältnisse, p. 53

Wellhausen, Reste arabischen (Banaka and Bapuku); Post, AfrikaHeidentums, p. 108. Robertson Smith, nische Jurisprudenz, ii. 165; Hyde

ix. 44.

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." 4 The Kafirs “are not bound by their law to give up anything they may have found, which has been lost by someone else. The loser should have taken better care of his property, is their moral theory.”5 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 ; 6 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

or were coming by special invitation to visit that very

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Clarke, ‘Right of Property in Trees on the Land of Another, in Jour, Anthr. Inst. xix. 201.

Dalager, op. cit. p. 23. Rink, Tales and Traditions of the Eskimo, p. 28.

2 Nicole, in Steinmetz, Rechtsver. halinisse, p. 137 (Diakité-Sarracolese). Beverley, . ibid. p. 216 (Wagogo). Walter, ibid. p. 395 (natives of NossiBé and Mayotte). Sorge, ibid. p. 423 Nissan Islanders). * Merker,

Die Masai, p. 204.

Desoignies, in Steinmetz, Rechtsver.
hältnisse, p. 281 (Msalala). Post,
Grundriss der ethnol. Jurisprudenz, ii.
i Charlevoix,

Voyage to North-
America, ii. 26 sq.

6 Leslie, Among the Zulus and Amatongas, P. 202.

6 Schoolcraft, Archives of Aboriginal Knowledge, v. 177.

7 Ratzel, History of Mankind, ii. 226.


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