ן י

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.2

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 as his. 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

1 Morgan, Civil Code of Louisiana, art. 175.

2 Stephen, op. cit. i. 60. Couty, L'esclavage au Brésil, p. 9.

* Butler, Travels in Assam, p. 94 (Kukis). Beecham, Ashantee, p. 96. Spencer, Descriptive Sociology, African Races, p. 12 (Abyssinians). Decle, op. cit. p. 70 sqq. (Barotse). Kidd, The Essential Kafir, p. 353. Ellis, History of Madagascar, i. 342. Post, Afrikanische Jurisprudenz, ii. 171. Percy Smith, Uea, Western Pacific,' in Jour. Polynesian Soc. i. 112. Tregear, Easter Island,' ibid. i. 99. In Samoa it is a maxim that a chief cannot steal; he is merely considered to "take" the thing which he covets (Pritchard, Polynesian Reminiscences, p. 104). In Uea, when a chief enters a house, he enjoys the right to take all in it that he pleases (Percy Smith, in Jour. Polynesian Soc. i. 113). Among the Kafirs no case can be brought against a chief for theft, except if it be committed on the property of a person belonging to another tribe; and even the children of chiefs are permitted to steal from their

VOL. II

own people (Brownlee, in Maclean, Compendium of Kafir Laws and Customs, p. 112 sq. Trollope, South Africa, ii. 303. Holden, Past and Future of the Kaffir Races, p. 338).

Waitz, op. cit. iii. 128 (Indian tribes of North America); v. pt. i. 153 (Malays). Ellis, Polynesian Researches, iii. 115 (Sandwich Islanders). Bory de St. Vincent, Essais sur les Isles Fortunées, p. 64 (Guanches). Nicole, in Steinmetz, Rechtsverhältnisse, p. 136 (Diakité-Sarracolese). Baskerville, ibid. p. 201 (Waganda). Beverley, ibid. p. 216 (Wagogo). Lang, ibid. p. 262 (Washambala). Rautanen, ibid. p. 343 (Ondonga). Stuhlmann, Mit Emin Pasha ins Herz von Africa, p. 75 (Wanyamwezi). Post, Afrikanische Jurisprudenz, ii. 170 sq. ; Ratzel, op. cit. i. 126; de Laveleye-Bücher, Das Ureigenthum, p. 275 (various African peoples). Kohler, Rechtsvergleichende Studien, p. 235 (Kandian law). Giles, Strange Stories from a Chinese Studio, ii. 369, n. 21 (Chinese). Supra, i. 162.

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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.

CHAPTER XXIX

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

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

2 Locke, Treatises of Government, ii. 5. 27 599., p. 200 sqq. Thiers, De la propriété, p. 94 sqq. Hume remarks (Treatise of Human Nature, ii. 3 [Philosophical Works, ii. 276, n. 1]) :—

There are several kinds of occupa tion, 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."

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

Rep. Bur. Ethn. ix. 428 (Point Barrow Eskimo). Ahlqvist, Unter Wogulen und Ostjaken,' in Acta Soc. Scientiarum 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 despatched (Powell, in Ann. Rep. Bur. Ethn. iii. p. lvii.).

1

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.3 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

"5

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

1 von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 34 (Brazilian aborigines). Dalager, Grønlandske Relationer, p. 15; Nansen, Eskimo Life, p. 109 (Greenlanders). Marsden, History of Sumatra, pp. 68, 244 (Rejangs). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kraft, ibid. p. 293 (Wapokomo). Decle, Three Years in Savage Africa, p. 487 (Wakamba). Robertson Smith, Religion of the Semites, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law).

2 Thomson, Savage Island, p. 137. Polack, Manners and Customs of the New Zealanders, ii. 69; Thomson, Story of New Zealand, i. 97. Munzinger, Die Sitten und das Recht der Bogos, p. 69. Cruickshank, Eighteen Years on the Gold Coast, ii. 277. Leuschner, in Steinmetz, Rechtsverhältnisse, p. 24 (Bakwiri). Ibid. p. 53 (Banaka and Bapuku). Tellier, ibid. p. 178 (Kreis Kita). Dale, in Jour. Anthr. Inst. xxv. 230 (Wabondei). Laws of Manu,

ix. 44.

Wellhausen, Reste arabischen Heidentums, p. 108. Robertson Smith,

Religion of the Semites, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law). Waitz, Anthropologie der Naturvölker, i. 440. Dargun, Ursprung und Entwicklungs-Geschichte des Eigenthums,' in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 342 sqq. See also infra, p. 39 sq.

3 Thomson, Story of New Zealand, i. 96; Polack, op. cit. ii. 71 (Maoris). Mademba, in Steinmetz, Rechtsverhältnisse, p 90 (natives of the Sansanding States).

4 Macpherson, Memorials of Service in India, p. 62.

5 Andersson, Lake Ngami, p. 115. See also Viehe, in Steinmetz, Rechtsverhältnisse, p. 310.

6 Mathew, in Curr, The Australian Race, iii. 162. On the finder's right to wild honey see Munzinger, Die Sitten und das Recht der Bogos, p. 70; Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku); Post, Afrikanische Jurisprudenz, ii. 165; Hyde

not

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,2 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 4 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; 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 land or were coming by special invitation to visit that very

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.

Nicole, in Steinmetz, Rechtsverhaltnisse, p. 137 (Diakité-Sarracolese). Beverley, ibid. p. 216 (Wagogo). Walter, ibid. p. 395 (natives of NossiBe and Mayotte). Sorge, ibid. p. 423 (Nissan Islanders).

* Merker, Die Masai, p. 204.