prietary rights of a more lasting nature.1 Loss of possession may, indeed, annul or weaken ownership gained by any method of acquisition. In the Hindu work Panchatantra it is said that the property in "tanks, wells, ponds, temples, and choultries" will no longer rest with persons who once have left them. Among the natives of the Sansanding States the right to a house is lost by its being abandoned. In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal. So also the finder's title to the discovered article springs from the fact that the original owner's right has been relaxed by his losing the possession of it. Secondly, the retaining possession of an object for a certain length of time may make it the property of the possessor, even though the occupation of that object conferred on him no such right, nay though the acquisition of it was actually wrongful. According to the Roman Law of the Twelve Tables, commodities which had been uninterruptedly possessed for a certain period-movables for a year, and land or houses for two years-became the property of the person possessing them." This principle, known to the Romans as usucapio, has descended to modern jurisprudence under the name of " 'prescription." It also prevailed in India since ancient times. The older law-books laid down the rule that, if the owner of a thing is neither an idiot nor a minor and if his chattel is enjoyed 1 von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 35 sq. (Brazilian aborigines). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kohler, Banturecht in Ostafrika,' in Zeitschr. f. vergl. Rechtswiss. xv. 48 (natives of Lindi). Trollope, op. cit. ii. 302 (Kafirs). Post, Afrikanische Jurisprudenz, ii. 169. Idem, Entwicklungsgeschichte des Familienrechts, p. 285 sq. Schurtz, in Zeitschrift für Socialwissenschaft, iii. 255. Among the Angami Nagas any member of a village may choose to leave his fields untilled for one year and cannot be compelled to grow his crops during the next, but after that, if illness or idle 66 5 6 ness prevent him from overtaking the work, his village insists on the fields being let" (Prain, Angami Nagas,' in Revue coloniale internationale, v. 484). 2 Panchatantram, iii. p. 15. 3 Mademba, in Steinmetz, Rechtsverhältnisse, p. 91. 4 Dalager, op. cit. p. 27. 5 See Mill, Principles of Political Economy, i. 272; Thiers, op. cit. p. 108; Waitz-Gerland, op. cit. vi. 228 (Maoris). 6 Hunter, Roman Law, p. 265 sqq. Maine, Ancient Law, p. 284. Girard, Manuel élémentaire de droit romain, p. 296 sqq. Puchta, Cursus der Institu tionen, ii. 202 sqq. by another before his eyes during ten years and he says nothing, it is lost to him, and the adverse possessor shall retain it as his own property; but it seems that later on the period of prescription was extended to thirty years or even more. In this connection it should also be noticed that the division of labour, implying the use of certain articles, often confers proprietary rights to those articles upon the persons who make habitual use of them, as in the case of women becoming the owners of the household goods. 3 A further source of ownership lies in the principle that , person has a title to the products of his own labour. Grotius-in criticising the Roman jurist Paulus, who long before Locke had made labour a justification of property, -4 argues that this is no special mode of acquisition, but that the labourer's claim to what he produces is based on noccupation. "Since in the course of nature," Grotius says, "nothing can be made except but of pre-existing matter, f that matter was ours, the ownership continues when Sit assumes a new form; if the matter was no one's property, this acquisition comes under occupation; if the matter belonged to another, the thing made is not ours alone.' This argument contains its own refutation. If a thing which we make of matter belonging to another person is not "ours alone," our partial right to it can be due only to our labour. Again, if we make a thing of materials belonging to ourselves, our right to it is certainly held to be increased by our exertions in producing it. It should, moreover, be remembered that there is ownership in the products not only of manual but of mental labour, and in the latter case the ownership can hardly be considered to be due to occupation at all. We may say with Mr. Spencer that from the beginning things identified as products of a man's labour are recognised as his. Even Gautama, xii. 39. Vasishtha, xvi. 16 sq. Laws of Manu, viii. 147 sq. See also Panchatantram, iii. p. 15; Benfey's translation, vol. ii. 233. 2 Brihaspati, ix. 7. Jolly, 'Recht und Sitte,' in Buehler, Grundriss der indo-arischen Philologie, ii. 92. For the rules of prescription in ancient India see also Jolly, p. 91 sqq., and Kohler, Altindisches Prozessrecht, p. 55 $9. 3 Supra, i. 637 sqq. 4 Cf. Girard, op. cit. p. 316. among the rudest peoples there is property in weapons, implements, dress, decorations, and other things in which the value given by labour bears a specially large proportion to the value of the raw material. If a Greenlander finds a dead seal with a harpoon in it, he keeps the seal, but restores the harpoon to its owner. Among the same people, when somebody has built dams across salmonrivers to catch the fish, it is not considered proper for strangers to come and meddle with them.3 In various parts of Africa he who has dug a well has a right to the exclusive disposal of it. In West Africa, according to Miss Kingsley, that which is acquired or made by a man or woman by their personal exertions is regarded as his or her private property." The Moquis of Arizona "are cooperative in all their labours, whether as hunters, herders, or tillers of the soil; but each man gathers the spoils of his individual skill and daring, or the fruits of his own industry." In the Nicobars, whilst everything which the village as a whole makes or purchases is common property, the result of individual work belongs to the individual." In old Hindu law-books the performance of labour is specified as one of the lawful modes of acquiring property. According to Nârada, when the owner of a field is unable to cultivate it, or dead, or gone no one knows whither, any stranger who undertakes its cultivation unchecked by the owner shall be allowed to keep the produce; and if the owner returns while the stranger is engaged in cultivation, the owner, in order to recover his field, has to pay to the cultivator the whole expense incurred in tilling the waste." Thus, though cultivation does not give a right to the land, it gives a right to the produce of the labour performed. Among uncivilised races we frequently find that the land itself and the crops or trees growing on it have different owners, the latter belonging to the person who planted them.1 2 1 The right of ownership may, further, be established by a transfer of property by its owner, either by way of gift or by sale or exchange or some other form of contract. The conditions necessary for this method of acquisition are, that the owner shall have a right to alienate the article in question, and that the other party shall be capable of owning such property. As has been said before, ownership does not necessarily imply an unrestricted power of disposition. Property in land, for instance, is frequently considered inalienable; and, to take another example, the power of testation, if recognised at all, is often subject to restrictions. The customary law of the Fantis of West Africa does not permit any person to bequeath to an outsider a greater portion of his property than is left for his family. Among the Maoris land obtained by purchase or conquest may be given away or willed by the owner to anybody he thinks fit, but the case is different with patrimony. With regard to the so-called Aryan peoples Sir Henry Maine thinks "it is doubtful whether a true power of testation was known to any original society except the Roman." Even in Rome bequest seems not to have been permitted in pre-historic times, and afterwards a legitima portio was compulsorily reserved for each child.? Such is still the law of some continental nations. 1 Colenso, op. cit. p. 31 (Maoris). Leuschner, in Steinmetz, Rechtsverhaltnisse, p. 25 (Bakwiri). Lang, hid. p. 264 (Washambala). Munzinger, Die Sitten und das Recht der Bogos, P 69. Hanoteau and Letourneux, La Kabylie, ii. 230; Kobelt, Reiseernnerungen aus Algerien und Tunis, p. 293 (Kabyles of Jurjura). Hyde Clarke, in Jour. Anthr. Inst. xix. 199 14. Post, Afrikanische Jurisprudenz, . 172. Schurtz, in Zeitschr. f. Socialaissenschaft, iii. 250 sq. Post, Entwicklungsgeschichte des Familienrechts, p. 286 sqq. Lubbock, 3 Post, Grundriss der ethnol. Juris prudenz, ii. 200 sqq. Idem, Afrikanische Jurisprudenz, ii. 19. Sarbah, op. cit. p. 85. 5 Polack, op. cit. ii. 69. 6 Maine, Ancient Law, p. 196. See also Fustel de Coulanges, La cité antique, p. 95. 7 Fustel de Coulanges, op. cit. p. 96. Hunter, Roman Law, p. 780 sqq. Girard, op. cit. p. 854 sqq. Closely connected with the restrictions imposed on a proprietor's power of testation is the rule of inheritance, one of the most common methods of acquiring property. At the earlier stages of civilisation the property of a deceased person is not in every case subject to this rule. Apart from the practice of testation, which, though hardly primitive, is not infrequently found among savages,' there are other ways of dealing with it besides inheritance. The private belongings of the dead, or part of them, are destroyed or buried with him, or his dwelling is burned or abandoned; but Dr. Dargun goes too far when saying that among rude savages this custom is generally practised to such an extent as to exclude heirship in property altogether. Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance from the fact that among some North American tribes, when a man dies leaving young children who are unable to defend themselves, grown-up relatives or other persons come in and seize whatever they please." The ordinary custom of savages is that the dead man's property is inherited either by his own children, if kinship is reckoned through the father, or by his sister's children or other relatives on the mother's side, if kinship is reckoned through females only. Sometimes the rules of inheritance make little or no distinction between men and women; sometimes a decided preference is given to the 1 Ellis, Polynesian Researches, iii. 115 sq. (Tahitians). Wilkin, in Reports of the Cambridge Anthrop Expedition to Torres Straits, v. 286 (natives of Mabuiag). Kingsley, West African Studies, p. 373. Lang, in Steinmetz, Rechtsverhältnisse, p. 238 (Washambala). Desoignies, ibid. p. 277 (Msalala). Rautanen, ibid. p. 336 (Ondonga). Dale, in Jour. Anthr. Inst. xxv. 224. Post, Grundriss der ethnol. Jurisprudenz, ii. 199. 2 See infra, on Regard for the Dead. Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 99 sqq. 4 Ibid. p. 102 sq. 5 Prescott, in Schoolcraft, Indian Tribes of the United States, ii. 194 sq. (Dacotahs). Hale, U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 208 (Salish). Dalager, op. cit. p. 30 sq.; Cranz, op. cit. i. 176 (Greenlanders). "See Westermarck, op. cit. p. 97 sqq. 7 Kloss, op. cit. p. 241 (Nicobarese). Wilkin, in Rep. Cambridge Anthr. Exped. v. 285 sq. (natives of Mabuiag). Wilkes, U.S. Exploring Expedition, v. 85 (Kingsmill Islanders). Senfft, in Steinmetz, Rechtsverhältnisse, p. 441 (Marshall Islanders). Dawson, op. cit. p. 7 (certain tribes of Western Victoria). Post, Afrikanische Jurisprudenz, ii. 14. Idem, Entwicklungsgeschichte Familienrechts, p. 299. Idem, Grundriss der ethnol. Jurisprudenz, i. 225. des |