1 property; and we have noticed the importance of first occupancy as a means of establishing proprietary rights. The influence of these latter considerations, which are independent of the method of tracing descent, is apparent from the fact that among several peoples inheritance runs in the male line even though children take the mother's name and are considered to belong to her clan. It may be added that a reason which modern writers often have assigned for giving the property of a person who dies intestate to his children or other near relatives is the supposition that in so disposing of it the law is only likely to do what the proprietor himself would have done, if he had done anything.3 5 In details the rules of succession are influenced by a variety of circumstances. Women may be excluded from inheritance or receive a smaller share than the men because the latter, being the stronger party, appropriate everything or the larger portion of the property for themselves; * or because the women are less in need of property, being supported by their male relatives or husbands; or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge; or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars; or for the purpose of preventing the estate from passing to another family or tribe. The idea of The idea of keeping together the property of the house also largely lies at the bottom of the rule of primo 1 Cf. Mill, op. cit. i. 274. 2 Westermarck, History of Human Marriage, pp. 104, 111. 3 Hume, Treatise of Human Nature, ii. 3 (Philosophical Works, ii. 280). Godwin, Enquiry concerning Political Justice, ii. 438. Mill, op. cit. i. 275. Cf. Campbell, Travels in South Africa, p. 520 (Kafirs). Cf. Cranz, op. cit. i. 176 (Greenlanders); Macpherson, Memorials of Service in India, p. 62 (Kandhs); Hinde, op. cit. p. 51 (Masai); 'Inheritance and "Patria Potestas" in China,' in China Review, v. 406; Jolly, loc. it. p. 83 (ancient Hindus); Post, 7 Entwicklungsgeschichte des Familienrechts, p. 296 sq.; Idem, Grundriss der ethnol. Jurisprudenz, i. 218 sq. 6 Cf. Robertson Smith, Kinship ana Marriage in Early Arabia, p. 65 sq.; Stemann, Den danske Retshistorie indtil Christian V.'s Lov, p. 311 sq. 7Cf. Cleveland, Woman under the English Law, p. 83. Shortland, Traditions and Superstitions of the New Zealanders, p. 256. Kingsley, Travels in West Africa, p. 485. Post, Grundriss der ethnol. Jurisprudenz, i. 214. Cf. Numbers, 3 a geniture. Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being. On the death of the head of the family he is generally better suited than anybody else to take his place; and his privileged position with regard to inheritance is justified by the duties connected with it, especially the duty of looking after and supporting the other members of the household. In feudalism, where tenancy implied duties as well as rights, it was also, from the lord's point of view, the simplest arrangement that when a tenant died single person should fill the vacant place. But there are many other points of view which may determine the rules. of succession. It may be thought just that each child should have an equal share in the inheritance, and that something should be given also to the widow, whose maintenance devolved on the husband and who, whilst he was alive, had been in joint possession of many of his belongings. Or the youngest son may be the chief or the exclusive heir, partly perhaps for the sake of preventing a division of the property, or because the lord would have but one tenant,* but partly also because he had remained with his father till his death," or "on the plea of his being less able to help himself on the death of the parents than his elder brethren, who have had their father's assistance in settling themselves in the world during his lifetime." " Wanyamwezi, again, justify the practice of leaving property 1 Supra, i. 605, 606, 614. Gill, Life in the Southern Isles, p. 46 sq. 2 Dalager, op. cit. pp. 29, 31; Cranz, op. cit. i. 176 (Greenlanders). Munzinger, Die Sitten und das Recht der Bogos, p. 74. Hinde, op. cit. p. 51 (Masai). Of the Bagdis of Bengal Mr. Risley expressly says (op. cit. p. 183) that the extra share which is given to the eldest son seems to be intended to enable him to support the female members of the family, who remain under his care." The son nearly always inherits his father's house, because sons, when marrying, leave the paternal mansion and build houses of their own (ibid. p. 209). It has been suggested that the custom of ultimogeniture "would naturally arise during the latter stages of the pastoral period, when the elder sons would in the ordinary course of events have set up for themselves' by the time of the father's death" (Jacobs, Studies in Biblical Archeology, p. 47; Gomme, quoted ibid. p. 47, n. I ; Blackstone, Commentaries on the Laws of England, ii. 70 sq.). 6 Tickell, in Jour. Asiatic Soc. Bengal, ix. pt. ii. 794, n. to their illegitimate children by slave girls or concubines, to the exclusion of their legitimate offspring, "by the fact of the former requiring their assistance more than the latter, who have friends and relatives to aid them."1 Generally there seems to be a close connection between illegitimate children's right to inheritance and the legal recognition of polygamous practices. This is indicated by a comparison between Oriental and Roman legislation on the subject, and, in Teutonic countries, between ancient custom and the later law, which was influenced by Christianity's horror of sexual acts falling outside the monogamous marriage relation. The privileges which Hindu law grants to the illegitimate children of Sûdras are due to the notion that the marriage of a member of this caste is itself considered to be of so low a nature as to be on a par with irregular connections.2 Of the incapacity of children, wives, and slaves to acquire property for themselves little needs to be said, in the present connection, by way of explanation. Their exclusion from the right of independent ownership is an incident of their subjection to their parents, husbands, or masters. But we must remember that, whilst the latter have a right to dispose of the earnings of their subordinates, they also have the duty of supporting them, and that in early civilisation the child and the wife, sometimes even the slave, are practically, as it were, joint owners of goods which in theory belong to the head of the family alone. We have still to explain the variations of moral judgments with regard to different acts of theft. That the condemnation of the offence varies in degree according to the value of the stolen goods follows from the fact that theft is disapproved of on account of the injury done to the owner. But in many cases, when the injury is very slight, the appropriation of another person's property is 1 Burton, Lake Regions of Central Africa, ii. 23 sq. 3 Volkens, op. cit. p. 249 (Wadshagga). 2 Jolly, loc. cit. p. 85. justified by the needs of him who took it. And frequently, also, the condemnation of the thief is more concerned with his encroachment upon a neighbour's right than with measuring the exact amount of harm inflicted. Among the Basutos, says Casalis, "the idea of theft is expressed by a generic word which refers to the violation of right, much more than to the damage caused." Burglary is regarded as an aggravated form of theft partly because it adds a fresh offence, the illicit entering into another person's house, to that against property, partly because it proves great premeditation in the offender.2 Robbery is likewise a double offence, implying, as it does, an act of violence, and may on that account be more severely censured than ordinary theft; but in other cases the courage and strength displayed by the robber is looked upon as a mitigating circumstance and sometimes substitutes admiration for disapproval, whereas the secret offender is despised as a coward. So, too, the secrecy of nocturnal theft may aggravate the crime, whilst at the same time the difficulty in providing against it may induce society to increase the punishment. But men are apt to admire not only bravery and force, but also dexterity and pluck, hence the appreciation of adroit theft. The same tendency in some measure accounts for the distinction between manifest and nonmanifest theft; but here we have in the first place to remember that strong emotions are more easily aroused by the sight of an act than by the mere knowledge of its commission. That the moral valuation of theft varies according to the station of the thief and the person robbed is due to the same causes as are similar variations with regard to other injuries; and so is the distinction between offences. against the property of a tribesman or fellow-countryman and offences against the property of a stranger. The theory of the Roman jurists according to which the property of an enemy in war belongs to nobody as long as the hostilities last and therefore becomes the property of the 3 1 Casalis, Basutos, p. 304. Teutons). 3 Supra, i. 294. 3 captor by the right of occupation,' is only a play with words intended to give a reasonable justification to a practice which is really due to lack of regard for the feelings of strangers. When men at an early stage of civilisation respect a stranger's property the motive is undoubtedly in the main prudential. Savages may be anxious to prevent theft from a neighbouring tribe in order to avoid disagreeable consequences. And I venture to think that the honesty they often display with regard to objects belonging to strangers who visit them, and especially with regard to things left in their charge, largely springs from superstitious fear. We have noticed before that even the acceptance of gifts is supposed to be connected with supernatural danger, owing to the baneful magic energy with which the gift is suspected to be saturated.* Would not the same apply to the illicit appropriation of a stranger's belongings, and especially to trusts, which naturally call for great precaution on the part of the owner? This leads us to a subject of considerable importance in the history of property, namely, the influence which magic and religious beliefs have exercised on the regard for proprietary rights. 5 Theft is not only punished by men, but is supposed to be avenged by supernatural powers. The Alfura of Halmahera are said to be honest only because they fear that they otherwise would be subject to the punishment of spirits. The natives of Efate, in the New Hebrides, maintained that theft was condemned by their gods." In Aneiteum, another island belonging to the same group, thieves were supposed to be punished after death. In Netherland Island they 1 Hunter, Roman Law, p. 257. Puchta, op. cit. ii. 220. * Sproat, Scenes and Studies of Savage Life, p. 159 (Ahts). Scott Robertson, Kafirs of the Hindu-Kush, P. 440. * See, besides statements referred to above, Lumholtz, Unknown Mexico, i. 420, and ii. 477; Nordenskiöld, Vegas färd kring Asien och Europa, ii. 140 sq. (Chukchi); Worcester, Philip pine Islands, p. 413 (Mangyans); Colenso, op. cit. p. 43 (Maoris); Macdonald, Light in Africa, p. 212 (Bantu); Campbell, Travels in South Africa, p. 517, and Leslie, Among the Zulus and Amatongas, p. 201 (Kafirs). • Supra, i. 593 sq. 5 Kükenthal, Forschungsreise in den Molukken, p. 188. Macdonald, Oceania, p. 208. 7 Turner, Samoa, p. 326. |