A third class of persons who in many cases are considered incapable of holding property of their own is the slave class.282 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,283 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.284 In Africa, in particular, it is a common thing for slaves to have private property;285 in Southern Guinea there are slaves who are wealthier than their masters.286 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.287 So also in ancient Mexico the slave was allowed a certain amount of time to labour for his own advantage.288 A Babylonian slave had his peculium, of which, at least under normal circumstances, he was in safe possession.289 In Rome anything a slave acquired was legally his master’s; but he was 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.290 In the Middle Ages slaves, and in many instances serfs also, were, strictly speaking, destitute of proprietary rights.291 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.292 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.293 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;294 and in other States they were expressly forbidden to suffer their slaves to hire out themselves.295 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;296 and in the British colonies Sunday was made a marketing day for the slaves so as to encourage them to labour for themselves.297 In the Civil Code of Louisiana 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.”298 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.299

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.300 The soil, in particular, is regarded as his.301 But even autocrats are tied by custom,302 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 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.

CHAPTER XXIX

THE RIGHT OF PROPERTY (concluded)

ACCORDING to an old theory set forth by Roman jurists, and afterwards much emphasised by Grotius,1 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, is 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.2 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;3 by the nomad’s or settler’s right to the previously unoccupied place where he has pitched his tent or built his dwelling;4 by the agriculturist’s right to the land of which he has taken possession by cultivating the soil;5 by a tribe’s or community’s right to the territory which it has occupied.6 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.”7 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 with regard to strangers.”8 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.”9 In Greenland anyone picking up pieces 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.10 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,11 whilst in other cases he at any rate has a claim to part of its value.12 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.”13 The Kafirs “are not 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.”14 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;15 and among the Tunguses whoever finds a beast in another man’s trap may take half the meat.16 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 village.”17 We have previously noticed the customary treatment of shipwrecked mariners in mediæval 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.18

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.”19 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”;20 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.”21 Among many peoples an animal belongs entirely or chiefly to the person who first wounded it, however slightly,22 or who first saw it,23 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;24 if a bear is killed, it belongs to him who first discovered it;25 and when a whale is taken, the very spectators have an equal right to it with the harpooners.26

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;27 and among agricultural savages the cultivator frequently loses his right to the field when he makes no more use of it28—though, on the other hand, instances are not wanting in which cultivation gives proprietary rights of a more lasting nature.29 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.30 Among the natives of the Sansanding States the right to a house is lost by its being abandoned.31 In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal.32 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.33 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.34 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 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;35 but it seems that later on the period of prescription was extended to thirty years or even more.36 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.37