scription, 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 Mill, Principles of Political Econ- op. cit. i. 274. Kovalewsky, Coutume smy, i. 272.

contemporaine et loi ancienne, p. 198 * Thiers, op. cit. p. 103 sqq.

(Ossetes). 3 Plato, Liges, xi. 923. Maine, * It is interesting to note that in the Ancient Law, p. 184. Fustel de Chinese penal code stealing from a Coulanges, op. cit. p. 85. Leist, relative is punished less severely than All-arisches Jus Civili, ii. 48. Mill, other cases of theft, and that the a at his death, they are apt to be the first occupants of his mitigation of the punishment is pro- 287, n. *). portionate to the


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 : 1 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 coextensive 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


i Robertson Smith, kinship and relationship (Ta Tsing Leu Lee, sec. Marriage in Early Arabia, pp. 55, 56, cclxxii. p. 287). The reason for this is that, “according to the Chinese ? Laws of Manu, ix. 186 sq. Isaeus, patriarchal system, a theft is not in this Oratio de Philoctemonis hereditate, 51. case a violation of an exclusive right, Cicero, De legibus, ii. 19 sq. Fustel but only of the qualified interest which de Coulanges, op. cit. p. 84: Maine, cach individual has in his share of the Ancient Law, p. 191 sq. famiiy property” (Staunton, ibid. p.


of the

66 sq;

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 ; ó 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

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 lies at the bottom of the rule of primo




[ocr errors]

I Cf. Mill, op. cit. i. 274.

Entwicklungsgeschichte des FamilienWestermarck, History of Human rechts, p. 296 sq. ; Idem, Grundriss Marriage, pp. 104, 111.

der ethnol

. Jurisprudenz, i. 218 sq. * Hume, Treatise of Human Nature, 6 Cf. Robertson Smith, Kinship ana ii. 3 (Philosophical Works, ii. 280). Marriage in Early Arabia, p. 65 sq. ; Godwin, Enquiry concerning Political Stemann,

Den danske Retshistorie Justice, ii. 438. Mill, op. cit. i. 275. indtil Christian Vi's Lov, p. 311 sq.

Cf. Campbell, Travels in South ? Cf. Cleveland, Woman under the Africa, p. 520 ( Kafirs).

English Law, p. 83. Cf. Cranz, op. cit. i. 176 (Green- & Shortland, Traditions and Super. landers); Macpherson, Memorials of stitions of the New Zealanders, p. 256. Service in India, p. 62 (Kandhs) ; Kingsley, Travels in West Africa, Hinde, op. cit. p. 51 (Masai); ‘Inherit- p. 485. Post, Grundriss der ethnol. ance and “ Patria Potestas ” in China,' Jurisprudenz, i. 214. Cf. Numbers, in China Review, v. 406 ; Jolly, loc.

xxxvi. I 599. cit. p. 83 (ancient Hindus) ; Post,

[ocr errors]


geniture. 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 ma

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

I Supra, i. 605, 606, 614. Gill, son nearly always inherits his father's Life in the Southern Isles, p. 46 sq. house, because sons, when marrying,

Dalager, op. cit. pp. 29, 31; leave the paternal mansion and build Cranz, op. cit. i. 176 (Greenlanders). houses of their own (ibid. p. 209). It Munzinger, Die Sitten und das Recht has been suggested that the custom der Bogos, p. 74. Hinde, op. cit. of ultimogeniture “would naturally p. 51 (Masai). Of the Bāgdis of arise during the latter stages of the Bengal Mr.

Risley expressly says pastoral period, when the elder sons (op. cit. p. 183) that the extra share would in the ordinary course of events which is given to the eldest son

have set up for themselves' by the to be intended to enable him to support time of the father's death” (Jacobs, the female members of the family, who Studies in Biblical Archaeology, p. 47 ; remain under his care.”

Gomme, quoted ibid. p. 47, n. 3 Pollock and Maitland, op. cit. ii. Blackstone, Commentaries on the Laws






of England, ii. 70 sq.). 4 Ibid. ii. 280.

& Tickell, in Jour. Asiatic Soc. 6 Risley, op. cit. p. 227 (Lusheis). Bengal, ix. pt. ii. 794, n. Among the Angami Nagas the youngest


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." i 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

· Burton, Lake Regions of Central Africa, ii. 23 sq. 2 Jolly, loc. cit. p. 85.

3 Volkens, op. cit. p. 249 (Wadshagga).

« ͹˹Թõ