3

matters relating to property.1 Among the ancient Hebrews women appear to have been in every respect regarded as minors so far as proprietary rights were concerned. In Rome a marriage with conventio in manum, which was the regular form of marriage in early times, gave the husband a right to all the property which the wife had when she married, and entitled him to all she might acquire afterwards whether by gift or by her own labour. Later on marriage without manus became the ordinary Roman marriage, and this, together with the downfall of the ancient patria potestas, led to the result that finally all the wife's property was practically under her own control, save when a part of it had been converted by settlement into a fund for contributing to the expenses of the conjugal household. But, as we have noticed in another place, the new religion was not favourable to the remarkable liberty granted to married women during the pagan Empire; and the combined influence of Teutonic custom and Canon law led to those proprietary incapacities of wives which up to quite recent times have disfigured the lawbooks of Christian Europe." In England, before 1857, even a man who had abandoned his wife and left her unaided to support his family might at any time return to appropriate her earnings and to sell everything she had acquired, and he might again and again desert her, and again and again repeat the process of spoliation. In 1870 a law was passed securing to women the legal control of their own earnings, but all other female property, with some insignificant exceptions, was left absolutely unprotected. And it was not until the Married Women's

5

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, 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; 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. A Babylonian slave had his peculium, of which, at least under normal circumstances, he was in safe possession." In Rome anything a slave acquired was legally his master's; but he was

5

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.

Post, Grundriss der ethnol. Juris prudenz, 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).

Nicole, in Steinmetz, RechtsverVältnisse, p. 119 (Diakité-Sarracolese). Sentit, ibid. p. 442 (Marshall Islanders).

8

4 Scott Robertson, op. cit. p. 100.

5 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).

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

8 Bancroft, op. cit. ii. 221.

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

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. 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. 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; and in other States they were expressly forbidden to suffer their slaves to hire out themselves. 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; 7 and in the British colonies Sunday was made a marketing day for the slaves so as to encourage them to labour for themselves. In the Civil Code of Louisiana

5

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.1 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,'

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. Poly nesian 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, Rechtsverhält nisse, 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, Afrikamische Jurisprudenz, ii. 170 sq.; Ratzel, op. cit. i. 126; de Laveleye-Bücher, Das Ureigenthum, p. 275 (various African peoples). Kohler, Rechtsver gleichende Studien, p. 235 (Kandian law). Giles, Strange Stories from a Chinese Studio, ii. 369, n. 21 (Chinese). Supra, i. 162.

Ꭰ

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.