CHAPTER XXIX THE RIGHT OF PROPERTY (concluded) ACCORDING to an old theory set forth by Roman jurists, and afterwards much emphasised by Grotius,' 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, lies 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. The principle of occupation is illustrated by innumerable facts from all quarters of the world-by the hunter's right to the game which he has killed or captured; by the nomad's or settler's right to the previously unoccupied place where 1 Grotius, De jure belli et pacis, ii. 3.3 Locke, Treatises of Government, 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 occupa Pon, where we cannot be said to join ar labour to the object we acquire; as when we possess a meadow by grazing our cattle upon it.' * Curr, Recollections of Squatting in Victoria, p. 265 (Bangerang tribe). Mardoch, Ethnol. Results of the Loint Barrow Expedition,' in Ann. Rep. Bur. Ethn. ix. 428 (Point Barrow 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 tribes 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.). 1 he has pitched his tent or built his dwelling; by the agriculturist's right to the land of which he has taken possession by cultivating the soil; by a tribe's or community's right to the territory which it has occupied.3 Among the Kandhs of India "the right of possession of land is simply founded in the case of tribes upon priority of appropriation, and in the case of individuals upon priority of culture." Among the Herero, "notwithstanding the loose notions generally entertained by them as to meum and tuum, there is an understanding that he who arrives. first at any given locality, is the master of it as long as he chooses to remain there, and no one will intrude upon him without having previously asked and obtained his permission. The same," our authority adds," is observed even 4 5 with regard to strangers. Again, among some of the Australian natives a man who had found a bees' nest and did not wish to rob it for some time, would mark the tree in some way or other, and "it was a crime to rob a nest thus indicated." 6 In Greenland anyone picking up pieces 1 von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 34 (Brazilian aborigines). Dalager, Grønlandske Relationer, p. 15; Nansen, Eskimo Life, p. 109 (Greenlanders). Marsden, History of Sumatra, pp. 68, 244 (Rejangs). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kraft, ibid. p. 293 (Wapokomo). Decle, Three Years in Savage Africa, p. 487 (Wakamba). Robertson Smith, Religion of the Semites, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law). 2 Thomson, Savage Island, p. 137. Polack, Manners and Customs of the New Zealanders, ii. 69; Thomson, Story of New Zealand, i. 97. Munzinger, Die Sitten und das Recht der Bogos, p. 69. Cruickshank, Eighteen Years on the Gold Coast, ii. 277. Leuschner, in Steinmetz, Rechtsverhältnisse, p. 24 (Bakwiri). Ibid. p. 53 (Banaka and Bapuku). Tellier, ibid. p. 178 (Kreis Kita). Dale, in Jour. Anthr. Inst. xxv. 230 (Wabondei). Laws of Manu, ix. 44. Wellhausen, Reste arabischen Heidentums, p. 108. Robertson Smith, Religion of the Semites, pp. 95, 96, 143 (ancient Semitic custom and Muhammedan law). Waitz, Anthropologie der Naturvölker, i. 440. Dargun, Ursprung und Entwicklungs-Geschichte des Eigenthums,' in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 342 sqq. See also infra, p. 39 sq. Thomson, Story of New Zealand, i. 96; Polack, op. cit. ii. 71 (Maoris). Mademba, in Steinmetz, Rechtsverhältnisse, p 90 (natives of the Sansanding States). 3 not of driftwood or goods lost at sea or on land was considered the rightful owner of them; and to make good his possession he had only to carry them up above high-water mark and put stones upon them, no matter where his homestead might be. But the finder's right to the discovered article is not always restricted to objects which have no owner or the owner of which is unknown in some instances his occupation of it makes it his property in all circumstances, whilst in other cases he at any rate has a claim to part of its value. Among the Hurons "every thing found, tho' it had been lost but a moment, belonged to the person that found it, provided the loser had not claimed it before." The Kafirs "are 4 bound by their law to give up anything they may have found, which has been lost by some one else. The loser should have taken better care of his property, is their moral theory.' Among the Chippewyans any unsuccessful hunter passing by a trap where a deer is caught may take the animal, if only he leaves the head, skin, and saddle for the owner; and among the Tunguses whoever finds a beast in another man's trap may take half the meat. Among the Maoris boats or canoes which were cast adrift became the property of the captors. “Even a canoe . . . of friends and relatives upsetting off a village, and drifting on shore where a village was, became the property of the people of that village; although it might be that the people in the canoe had all got safely to land or were coming by special invitation to visit that very Clarke, Right of Property in Trees on the Land of Another,' in Jour. Anthr. Inst. xix. 201. Dalager, op. cit. p. 23. Rink, Tales and Traditions of the Eskimo, p. 28. 2 Nicole, in Steinmetz, RechtsverWaltnisse, p. 137 (Diakité Sarracolese). Beverley, ibid. p. 216 (Wagogo). Walter, ibid. p. 395 (natives of NossiBe and Mayotte). Sorge, ibid. p. 423 Nissan Islanders). * Merker, Die Masai, p. 204. 1 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 4 ; 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." 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. Hegel, Grundlinien der Philosophie des Rechts, § 54, p. 54; English translation, p. 59. 4 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 privi lege 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; 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. The 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 Dalager, op. cit. p. 24 sq. (Greenlanders). Boas, Central Eskimo,' in Ann. Rep. Bur. Ethn. vi. 582. Dall, Ala ka, p. 394 (Aleuts). Ratzel, op. it. ii. 227 (Asiatic Hyperboreans). Campbell, Second Journey in the Interior f South Africa, ii. 212 (Bechuanas). Livingstone, Missionary Travels, p. 599 (natives of South Africa). von Heuglin, Reise nach Abessinien, p. 290 7. (Woitos). Laws of Manu, ix. 44. Post, Afrikanische Jurisprudenz, ii. 163 Idem, Grundriss der ethnol. Jurisprudens, ii. 707 sq. Andree, in Globus, xxxviii. 287 sq. * Boas, Central Eskimo,' in Ann. Rep Bur. Ethn. vi. 582. Ratzel, op. kit. ii. 227 (Asiatic Hyperboreans). See also Semper, Die Palau-Inseln, p. 36. Dalager, op. cit. p. 24. Dalager, op. cit. p. 25. Post, Afrikanische Juris p. · 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. 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). |