thing directly follows from ownership in another thing. It is a general rule that the owner of an object also owns what develops from or is produced by it. The owner of a cow owns her calf, the owner of a tree its fruits, the owner of a piece of land anything growing on it, at least if no labour has been necessary for its production. Ownership in land also gives a certain right to the wild animals which are found there. Among the Fantis, for instance, if anybody kills game on another person's land, its proprietor is entitled to the shoulder or a quarter of such game. In this connection we have further to notice the mode of acquisition which the Roman jurists called accessio. When that which belongs to one person is so intermixed with the property of another, that either it cannot be separated at all, or cannot be separated without inflicting damage out of proportion to the gain, the owner of the principal becomes the owner of the accessory, though, as a rule, he would have to pay compensation for it."

All these methods of acquisition apply not only to individual

property but to common property as well. Occupation may establish ownership whether there be many occupants or only one ; joint labour may lead to joint ownership in the produce; property may be transferred to a body of persons as well as to a single individual. But the custom which prescribes community of goods may also itself be an independent method of acquisition : by belonging to an association of people who hold property in common a person may be part owner of a thing which has been occupied or produced by some other member of the association. Communism of one kind or another is undoubtedly a very ancient institution, though its prevalence at the lower stages of civilisation has often been exaggerated. But the whole question of


| See Post, Grundriss der ethnol. Jurisprudenz, ii. 612; Goos, Forelasninger over den almindelige Retslare, ii. 159 999:

2 Sarbah, op. cit. p. 48.
3 llunter, Roman Law, p. 274 sq.

4 Cf. Kovalewsky, Tableau des origines et de l' evolution de la famille et de la proprieté, p. 51 sq?:

5 Dr. Dargun (in Zeitschr. f. vergl. Rechtswiss. v. 76, &c.) even goes so far as to say that savages know of no

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common ownership is too complicated and lies too much apart from our special subject to admit of a detailed treat


From the statement of facts we shall now proceed to an explanation of these facts. First, why do men recognise proprietary rights at all? Why do the moral feelings of mankind grant to certain persons a right to the exclusive disposal of certain things, in other words, why does the disposal of an object without the consent of the person called its owner give rise to moral disapproval ? The

right of property,” it is true, is generally used as a term for a legal right. But in this, as in so many other cases, the legal right is essentially a formulated expression of moral feelings.

As Mr. Spencer observes, the desire to appropriate, and to keep that which has been appropriated, lies deep not only in human but in animal nature, being, indeed, a condition of survival. Sticklebacks show obvious signs of anger when their territory is invaded by other sticklebacks. Birds defend their nests against the attacks of intruders. The dog fights for his kennel or for the prey he has caught. A monkey in the Zoological Gardens of London, which made use of a stone to open nuts, always hid it in the straw after using it, and would not allow any other monkey to touch it. We find the same propensity in man from his earliest years.


At the age of two, Tiedemann's son did not let his sister sit on his chair or any

of his clothes, though he had no scruples against appropriating things which belonged to her.” Owing to this tendency to keep an appropriated object, and to resist its abstraction, it is dangerous for an individual to try to seize anything held by another of about equal strength; ther property but such as belongs to dividuals ; but this statement * Darwin, Descent of Man, 1: 125: aklly justified by facts.

See also Fischer, Notes sur l'intelli. Spencer, Principles of Sociology, gence des singes,' in K'evue scientifique,

xxxiii. 618. Supra, i. 22

Compayré, L'évolution intellectuelle * Piriy, Das Seelenleben der Zsiere, et morale de l'enfant, p. 312.


P. 68.


01. 644.

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and in human societies this naturally led to the habit of leaving each in possession of whatever he had attained, especially in early times when the objects possessed were of little value, and there was no great inequality of wealth." This habit was further strengthened by various circumstances, all of which tended to make interference with other persons' possessions the subject of moral censure. From both prudential and altruistic motives parents taught their children to abstain from such interference, and this, by itself, would readily give rise to the notion of theft as a moral wrong. Society at large also tried to prevent acts of this kind, partly in order to preserve peace and order, partly out of sympathy with the possessor. Resentment is felt not only by him who is deprived of his possession, but by others on his behalf. This is seen even among some of the lower animals. The Pomeranian dogs of German carters watch the goods of their masters ;? Mr. Romanes's terrier protected meat from other terriers, his offspring, which lived in the same house with him, and with which he was on the very best of terms ; : Captain Gordon Stables's cat, which had her place on the table at meals, never allowed any unauthorised interference with the viands. In men such sympathetic resentment naturally develops into genuine moral disapproval.

All this applies not only to proprietary rights based on occupation, but also to the principle of continued possession as a ground of ownership. Indeed, the longer a person is in possession of a certain object, the more apt are both he and other individuals to resent its alienation ; whereas the loss or abandonment of a thing has a tendency to loosen the connection between the thing and its owner." This is undoubtedly the chief source of the rule of pre1 Cf. Spencer, Principles of Sociology,

4. Studies in Animal Life,' in ii. 634, 644; Dargun, in Zeitschr. f. Chambers's Journal, 1884, p. 824. vergl. Rechtswiss.

5 Cf. Hume, Treatise of Human Martius, Beiträge zur Ethnographie Nature, ii. 3 (Philosophical Works, Amerika's, i. 88, 90.

v. 79 sq. ;


ii. 274):—“What has long lain under 2 Peschel, Races of Man, p. 240. our eye, and has often been em

3 Romanes, 'Conscience in Animals,' ployed to our advantage, that we are in Quarterly Journal of Science, xiii. always the most unwilling to part 156, n.*


scription, though there may be other circumstances as well which help to justify it. Thus it has been said that it is necessary to the security of rightful possessors that they should not be molested by charges of wrongful acquisition when by the lapse of time witnesses must have perished or been lost sight of, and the real character of the transaction can no longer be cleared up; whilst another argument adduced in favour of prescription is, that long possession generally implies labour and that labour gives ownership.? The reason why property is gained by labour is obvious enough. Not only do exertions in producing an object make the producer desirous to keep it and to have the exclusive disposal of it, but an encroachment upon the fruit of his labour arouses sympathetic resentment in outsiders, who feel that an effort deserves its reward.

As the recognition of ownership thus ultimately springs from a desire in the owner to keep and dispose of what he has appropriated or produced, it is evident that, in ordinary circumstances, there would be no moral disapproval of a voluntary transfer of property to another person. But the case is different if such a transfer is injurious to the interests of persons who have a special claim to consideration. Thus testation is frequently held to be inconsistent with the duties which parents owe to their children or other near relatives to one another. The father, though the lord of the family's possessions, may indeed be regarded only as the first magistrate of an association, and in such a case his share in the division naturally devolves on the member of the family who succeeds to his authority. The right of inheritance, then, may be intimately connected with the idea that the heir was, in a manner, joint owner of the deceased person's property already during his lifetime."


But there are Mill, Principles of Political Econ- op. cit. i. 274. Kovalewsky, Coutume pssy, i. 272.

contemporaine et loi ancienne, p. 198 Thiers, op. cit. p. 103 599.

(Ossetes). • Plato, Leges, xi. 923. Maine, * It is interesting to note that in the Ansient Law, p. 184.

Chinese penal code stealing from a Culanges, op. cit. p. 85. Leist, relative is punished less severely than Ali-arisches jus Civili, ii. 48. Mill, other cases of theft, and that the

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various other facts which account for the existence of this right. In early civilisation the rule of succession is part of a comprehensive system of rights and duties which unite persons of the same kin. Professor Robertson Smith observes that in ancient Arabia all persons on whom the duty of blood-revenge lay originally had the right of inheritance ; and a similar connection between inheritance and blood-revenge is found among other peoples. This system of mutual rights and duties is generally one-sided, it has reference either to paternal or to maternal relatives, but not to both at once. Now, whatever be the reason why the one or the other method of reckoning kinship prevails among a certain people, it is in the present place sufficient to point out the influence which the idea of a common descent exercises upon the right of inheritance owing to its power of knitting together the persons to whom it refers. Besides, the duty connected with this right may also be of such a nature as to require a certain amount of wealth for its performance ; among the Hindus, Greeks, and Romans, the right to inherit a dead man's property was exactly coextensive with the duty of performing his obsequies and offering sacrifices to his spirit.? A further cause of children inheriting their father's property may be that they, to some extent, have previously been in joint possession of it ; for, as we know, possession readily leads to ownership. They would have an additional claim to succeed to his property when it had been gathered by their labour, as well as his, or when they stood in need of the support which it had been the father's duty to give them had he been alive. Moreover, where a person's children are present on the spot at his death, they are apt to be the first occupants of his

287, n. *).

i Robertson Smith, Kinship and Marriage in Early Arabia, pp. 55, 56,

66 sq.

mitigation of the punishment is proportionate to the nearness of the relationship (Ta Tsing Leu Lec, sec. cclxxii. p. 287). The reason for this is that, “according to the Chinese patriarchal system, a theft is not in this case a violation of an exclusive right, but only of the qualified interest which each individual has in his share of the famiiy property” (Staunton, ibid. p.

? Laws of Manu, ix. 186 sq. Isaeus, Oratio de Philoctemonis hereditate, 51. Cicero, De legibus, ii. 19 sq. Fustel de Coulanges, op. cit. p. 84. Maine, Ancient Law, p. 191 sq.

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