village." We have previously noticed the customary treatment of shipwrecked mariners in medieval 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.2 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."5 Among many peoples an animal belongs entirely or chiefly to the person who first wounded it, 1 Colenso, Maori Races of New Zealand, p. 34. Polack, op. cit. p. 68 sq. "Maxima sua esse credebant quae ab hostibus cepissent" (quoted by Ahrens, Naturrecht, ii. 137). Hegel, Grundlinien der Philosophie des Rechts, § 54, p. 54; English translation, p. 59. Of certain tribes of Western Victoria we are likewise told that, "should a child of another family have been born on the estate, it is looked upon as one of the family, and it has an equal right with them to a share of the land, if it has attained the age of six months at the death of the proprietor" (Dawson, Australian Aborigines, p. 7). The Rev. John Bulmer (quoted by Brough Smyth, Aborigines of Victoria, i. 146) testifies the prevalence of such a birthright among the Murray tribes, and suspects it is common to most of the tribes of Australia :-"The fact that an aboriginal is born in a certain locality constitutes a right to that part, and it would be considered a breach of privilege for any one to hunt over it without his permission. Should another black have been born in the same place, he, with the former, would have a joint right to the land. Otherwise, no native seems to have made a claim to any particular portion of the territory of his tribe." Cf. Schurtz, 'Die Anfänge des Landbesitzes,' in Zeitschr. f. Socialwissenschaft, iii. 357 sqq. 5 Colenso, op. cit. p. 31. See also Polack, op. cit. ii. 82. 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; 3 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." 3 4 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. 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 pro 6 1 Dalager, op. cit. p. 24 sq. (Greenlanders). Boas, 'Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582. Dall, Alaska, p. 394 (Aleuts). Ratzel, op. cit. ii. 227 (Asiatic Hyperboreans). Campbell, Second Journey in the Interior of South Africa, ii. 212 (Bechuanas). Livingstone, Missionary Travels, p. 599 (natives of South Africa). von Heuglin, Reise nach Abessinien, p. 290 sq. (Woitos). Laws of Manu, ix. 44. Post, Afrikanische Jurisprudenz, ii. 163. Idem, Grundriss der ethnol. Jurisprudenz, ii. 707 sq. Andree, in Globus, xxxviii. 287 sq. * Boas, Central Eskino,' in Ann. Rep. Bur. Ethn. vi. 582. Ratzel, op. cit. ii. 227 (Asiatic Hyperboreans). See also Semper, Die Palau-Inseln, p. 86. 3 Dalager, op. cit. p. 24. Rink, Tales and Traditions of the Eskimo, p. 29. Dalager, op. cit. p. 25. Cf. Post, Afrikanische Jurisprudens, iì. 167. The 7 Morgan, League of the Iroquois, p. 326. Dorsey, 'Omaha Sociology,' in Ann. Rep. Bur. Ethn. iii. 366. Bourke, Snake-Dance of the Moquis, p. 261. Shooter, Kafirs of Natal, p. 16; Lichtenstein, Travels in Southern Africa, i. 271 (Kafirs). MacGregor, in Jour. African Soc. 1904, p. 474 (Yoruba). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 25. Lang, ibid. p. 264 (Washambala). Marx, ibid. p. 358 (Amahlubi). Sorge, ibid. p. 422 (Nissan Islanders). Waitz, op. cit. i. 440. Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 343 sq. de Laveleye-Bücher, Das Ureigenthum, ch. xiv. p. 270 sqq., Among the Rejangs of Sumatra a planter of fruittrees or his descendants may claim the ground as long as any of the trees subsist, but when they disappear “the land reverts to the public " (Marsden, op. cit, p. 245). prietary rights of a more lasting nature.1 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 1 von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 35 sq. (Brazilian aborigines). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kohler, Banturecht in Ostafrika,' in Zeitschr. f. vergl. Rechtswiss. xv. 48 (natives of Lindi). Trollope, op. cit. ii. 302 (Kafirs). Post, Afrikanische Jurisprudenz, ii. 169. Idem, Entwick lungsgeschichte des Familienrechts, p. 285 sq. Schurtz, in Zeitschrift für Socialwissenschaft, iii. 255. Among the Angami Nagas any member of a village "may choose to leave his fields untilled for one year and cannot be compelled to grow his crops during the next, but after that, if illness or idle 6 ness prevent him from overtaking the work, his village insists on the fields being let" (Prain, 'Angami Nagas,' in Revue coloniale internationale, v. 484). 2 Panchatantram, iii. p. 15. 3 Mademba, in Steinmetz, Rechtsverhältnisse, p. 91. 4 Dalager, op. cit. p. 27. See Mill, Principles of Political Economy, i. 272; Thiers, op. cit. p. 108; Waitz-Gerland, op. cit. vi. 228 (Maoris). 6 Hunter, Roman Law, p. 265 sqq. Maine, Ancient Law, p. 284. Girard, Manuel élémentaire de droit romain, p. 296 sqq. Puchta, Cursus der Institu tionen, ii. 202 sqq. 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;1 but it seems that later on the period of prescription was extended to thirty years or even more.2 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. 3 4 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." 5 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 1 Gautama, xii. 39. Vasishtha, xvi. 16 sq. Laws of Manu, viii. 147 sq. See also Panchatantram, iii. p. 15; Benfey's translation, vol. ii. 233. 2 Brihaspati, ix. 7. Jolly, Recht und Sitte,' in Buehler, Grundriss der indo-arischen Philologie, ii. 92. For the rules of prescription in ancient India see also Jolly, p. 91 sqq., and Kohler, Altindisches Prozessrecht, p. 55 sq. 3 Supra, i. 637 sqq. 4 Cf. Girard, op. cit. p. 316. 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 salmonrivers to catch the fish, it is not considered proper for strangers to come and meddle with them.3 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.5 The Moquis of Arizona" are cooperative 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 1 Spencer, Principles of Sociology, ii. 646. Idem, Principles of Ethics, ii. 98. Cf. Waitz, op. cit. i. 440 sq. 2 Dalager, op. cit. p. 25. Nansen, First Crossing of Greenland, ii. 299. Munzinger, Die Sitten und das Recht der Bogos, p. 70. Lang, in Steinmetz, Rechtsverhältnisse, p. 264 Washambala). von François, Nama und Damara, p. 175 (Herero). 5 Kingsley, West African Studies, p. 366. 6 Bourke, Snake-dance of the Moquis, p. 260 sq. 7 Kloss, In the Andamans and Nicobars, p. 240. 8 Gautama, x. 42. Laws of Manu, x. 115. 9 Ñârada, xi. 23 sq. |
