Property Act of 1882 that a full right to their own property was given to English wives.1

A third class of persons who in many cases are considered incapable of holding property of their own is the slave class. It may indeed be asked whether a slave ever has the right of ownership in the full sense of the term. Yet slaves are frequently said to be owners of property; and though this "ownership " may have originally been a mere privilege granted to them by their masters and subject to withdrawal at the discretion of the latter,3 it is undoubtedly in several cases a genuine right guaranteed by custom. Among the Káfirs of the Hindu-Kush, if the slaves work for others, they do not hand the wages over to their masters, but keep the pay themselves. In Africa, in particular, it is a common thing for slaves to have private property;5 in Southern Guinea there are slaves who are wealthier than their masters. In some African countries, as we have seen, the slave is obliged to work for his master only on certain days of the week or a certain number of hours, and has the rest of his time free. So also in ancient Mexico the slave was allowed a certain amount of time to labour for his own advantage.8 A Babylonian slave had his peculium, of which, at least under normal circumstances, he was in safe possession. In Rome any-.

1 Lecky, Democracy and Liberty, ii. 536 sq. Cleveland, Woman under the English Law, p. 279 sqq. For the laws of other European countries see Bridel, op. cit. p. 61 sqq., and for the history of the subject see Gide, Étude sur la condition de la femme, passim.

2 Post, Grundriss der ethnol. Jurisprudenz, i. 370, 381. Holmberg, in Acta Soc. Scientiarum Fennica, iv. 330 sq. (Thlinkets). Kohler,' Recht der Marschallinsulaner,' in Zeitschr. f. vergl. Rechtswiss. xiv. 428 sq. Volkens, op. cit. p. 249 (Wadshagga). Lang, in Steinmetz, Rechtsverhältnisse, p. 241 (Washambala).

3 Nicole, in Steinmetz, Rechtsverhältnisse, p. 119 (Diakité-Sarracolese). Senfft, ibid. p. 442 (Marshall Islanders).

Scott Robertson, op. cit. p. 100. Kingsley, West African Studies, P. 366. Ellis, Ewe-speaking Peoples of the Slave Coast, p. 219. Steinmetz, Rechtsverhältnisse, p. 43 (Banaka and Bapuku). Tellier, ibid. pp. 169, 171 (Kreis Kita). Baskerville, ibid. p. 193 (Waganda). Beverley, ibid. p. 213 (Wagogo). Dale, in Jour. Anthr. Inst. xxv. 230 (Wabondei). Munzinger, Die Sitten und das Recht der Bogos, p. 43. Idem, Ostafrikanische Studien, p. 309 sq. (Beni Amer).

• Wilson, Western Africa, p. 271. 7 Supra, i. 677.

Bancroft, op. cit. ii. 221.

Kohler and Peiser, Aus dem babylonischen Rechtsleben, i. 1. See also supra, i. 684.

thing a slave acquired was legally his master's; but he was in practice permitted to enjoy and accumulate chance earnings or savings or a share of what he produced, which was regarded not as his property in the full sense of the term, but as his peculium. In the Middle Ages slaves, and in many instances serfs also, were, strictly speaking, destitute of proprietary rights.2 In England it was held that whatever was acquired by a villein was acquired by his lord. At the same time his chattels did not eo ipso lapse into the lord's possession, but only if the latter actually seized them; and if he for some reason or other refrained from doing so the villein was practically their owner in respect of all persons but his lord.3 In the British and French colonies and the American Slave States the negro slaves had no legal rights of property in things real or personal. According to the laws of Georgia, masters must not permit their slaves to labour for their own benefit, at a penalty of thirty dollars for every such weekly offence; 5 and in other States they were expressly forbidden to suffer their slaves to hire out themselves.6 In some places, however, negro slaves might hold a peculium. In Arkansas a statute was passed granting masters the right of allowing their slaves to do work on their own behalf on Sundays; and in the British colonies Sunday was made a marketing day for the slaves so as to encourage them to labour for themselves.8 In the Civil Code of Louisiana

1 Digesta, xv. I. 39. Wallon, Histoire de l'esclavage dans l'antiquité, ii. 181 sq. Ingram, History of Slavery, P. 44. Hunter, Roman Law, pp. 157, 290 sq. Girard, op. cit. p. 95.

2 Supra, i. 697. Guérard, Cartulaire de l'Abbaye de Saint-Père de Chartres, i. P. xlvii.

3 Vinogradoff, Villainage in England, p. 67 sq. Pollock and Maitland, op. cit. i. 416, 419.

4 Stephen, Slavery of the British West India Colonies, i. 58. Code Noir, Édit du mois de Mars 1685, art. 28, P. 42 sq.; Edit donné au mois de Mars 1724, art. 22, p. 295 sq. Stroud, Sketch of the Laws relating to Slavery

in the several States of the United States of America, p. 74. Goodell, American Slave Code, p. 89 sqq.

5 Prince, Digest of the Laws of Georgia, p. 788.

Caruthers and Nicholson, Compilation of the Statutes of Tennessee, p. 675. Alden and van Hoesen, Digest of the Laws of Mississippi, p. 751. Morehead and Brown, Digest of the Statute Laws of Kentucky, ii. 1480 sq; Ball and Roane, Revised Statutes of Arkansas, xliv. 7. 2. 8, p. 276 sq. Edwards, History of the British West Indies, ii. 181.

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."1 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,5 5 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.

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 VOL. II

their 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.

D

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,1 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, is 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.2 The principle of occupation is illustrated by innumerable facts from all quarters of the world-by the hunter's right to game which he has killed or captured; 3 by the nomad's or settler's right to the previously unoccupied place where

the

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

Locke, Treatises of Government, ii. 5. 27 sqq., 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 occupation, where we cannot be said to join our labour to the object we acquire; as when we possess a meadow by grazing qur 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 Bar

row 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 tibes 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.).