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 nonmanifest 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


i Casalis, Basutos, p. 304.
2 Cf. Wilda, op. cit. p. 878 (ancient


Supra, i. 294.



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

1 Hunter, Roman Law, p. 257. Puchta, op. cit. ii. 220.

2 Sproat, Scenes and Studies of Savage Life, p. 159 (Ahts). Scoit Robertson, Káfirs of the Hindu-Kush, P. 440.

* See, besides statements referred to above, Lumholtz, Unknown Mexico, i. 420, and ii. 477 ; Nordenskiöld, Vegas färd kring Asien och Europa, ii. 140 sq. (Chukchi); Worcester, Philip

pine Islands, p. 413 (Mangyans) ; Colenso, op. cit. p. 43 (Maoris) ; Macdonald, Light in Africa, p. 212 (Bantu) ; Campbell, Travels in South Africa, p. 517, and Leslie, Among the Zulus and Amatongas, p. 201 (Kafirs).

* Supra, i. 593 sq.

5 Kükenthal, Forschungsreise in den Molukken, p. 188. 6 Macdonald, Oceania,


208. ? Turner, Samoa, p. 326.

were said to go to a prison of darkness under the earth ; 1 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.” 3 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." 6 In ancient Egypt property was under the protection of the god Ptah." In Greece Zeus KTNOLOS was a guardian of the family property;8 and according to a Roman tradition the domestic god repulsed the robber and kept off the enemy.' The removing of land

1 Ibid. p. 301.

2 Codrington, Melanesians, p. 274.

3 Ellis, Tshi-speaking Peoples of the Gold Coast, p. 75. See also Cruickshank, op. cit. ii. 152, 160, 184; Schultze, Der Fetischismus, p.

4 Wilson, Western Africa, p. 275.

5 Arbousset and Daumas, Exploratory Tour to the North-East of the

Colony of the Cape of Good Hope, p. 322 sq.

6 Yasts, xii. 8.

7 Tiele, History of the Egyptian Religion, p. 229.

8 Aeschylus, Supplices, 445. Farnell, Culls of the Greek States, i. 55.

9 Ovid, Fasti, v. 141.



marks has frequently been regarded as sacrilegious. It was strictly prohibited by the religious law of the Hebrews.” In Greece boundaries were protected by Zeus oplos. 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 landmark, 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."'3 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." 5 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

| Trumbull, The Threshold Covenant, p. 166 599.

Deuteronomy, xix. 14; xxvii. 17. Proverbs, xxii. 28 ; xxiii. 10 sq. Hosea, v. 10. Cf. Job, xxiv. 2.

3 Plato, Leges, viii. 842 sq. Demosthenes, Oratio de Halonneso, 39, p. 86. See also Hermann, Disputatio de terminis eorumque religione apud Græcos, passim.

• Ovid, Fasti, ii. 639 599. Festus,

De verborum significatione, " Termino.'
Lactantius, Divine Institutiones, i. 10
(Migne, Patrologiæ cursus, vi. 227 sqq.).
Pauly, Real·Encyclopädie der classischen
Alterthumswissenschaft, vi. pt. ii. 1707
$99. Fowler, Roman Festivals of the
Period of the Republic, p. 324 399.

5 Dionysius of Halicarnassus, Antiquitates Romana, ii. 74. Plutarch, Numa, xvi. 1. Festus, op. cit. 'Termino.'

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.” 4 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.” 5 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 arnı 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,

i See, e.g., Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. ii. 149 (Karens).

Judges, xvii. 2. 3 Wellhausen, Reste arabischen Hei. dentums, p. 192.

nesia, p. 318.

• Krasheninnikoff, History of Kamschatka, p. 179 sq.


• Turner, Nineteen Years in Poly

6 von Haxthausen, Transcaucasia, p.

398 s.

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