A further source of ownership lies in the principle that a 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,—38 argues that this is no special mode of acquisition, but that the labourer’s claim to what he produces is based on occupation. “Since in the course of nature,” Grotius says, “nothing can be made except but of pre-existing matter, if that matter was ours, the ownership continues when it 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.”39 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 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.40 If a Greenlander finds a dead seal with a harpoon in it, he keeps the seal, but restores the harpoon to its owner.41 Among the same people, when somebody has built dams across salmon-rivers to catch the fish, it is not considered proper for strangers to come and meddle with them.42 In various parts of Africa he who has dug a well has a right to the exclusive disposal of it.43 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.44 The Moquis of Arizona “are co-operative 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.”45 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.46 In old Hindu law-books the performance of labour is specified as one of the lawful modes of acquiring property.47 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.48 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.49

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;50 and, to take another example, the power of testation, if recognised at all, is often subject to restrictions.51 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.52 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.53 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.”54 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.55 Such is still the law of some continental nations.

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,56 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;57 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.58 Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance59 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.60 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.61 Sometimes the rules of inheritance make little or no distinction between men and women;62 sometimes a decided preference is given to the men;63 sometimes the women inherit nothing;64 whereas in a few exceptional cases the women are the only inheritors.65 Among various savages the widow also has a share in the inheritance, or at any rate has the usufruct of property left by her deceased husband.66 Very frequently the eldest son,67 or, where the maternal system of descent prevails in full, the eldest uterine brother68 or the eldest son of the eldest uterine sister,69 is the chief or even the only heir. But there are also several instances in which this privilege is granted to the youngest son.70 Thus, among the Hos of India he apparently inherits all the property of his father;71 among the Limbus of Nepal, though an extra share is set apart for the eldest son, the youngest one is allowed to choose his share first;72 among the Eskimo of Behring Strait, “if there are several sons the eldest gets the least, the most valuable things being given to the youngest.”73 In Greenland a foster-son inherits all the property of his foster-father, if the latter dies without offspring or if his sons are still young children;74 and of the West African Fulah we are told that, though they have sons and daughters, the adopted child becomes heir to all that they leave behind.75 Among the Kukis, in default of legitimate issue, a natural son succeeds to his father’s property before all other male relations;76 among the Bódo and Dhimáls sons by concubinage or adoption get equal shares with sons born in wedlock;77 the Wanyamwezi of Eastern Africa have the habit of leaving property to their illegitimate children by slave girls or concubines even to the exclusion of their issue by wives.78 Among other uncivilised peoples, again, slaves cannot inherit at all,79 and where they are allowed to possess property the master is sometimes the legitimate heir of his slave.80

At higher stages of civilisation the rules of inheritance present the same characteristics as among many savages. During historic times, at least, the nations of culture have reckoned kinship through the father, and succession has been agnatic.81 In China women only inherit in the very last resort, failing all male relatives.82 Among the Hebrews, in ancient times, only sons, not daughters, still less wives, could inherit;83 but the later law conferred on daughters the right of heirship in the absence of sons.84 The Muhammedan law of inheritance in most cases awards to a female a share equal to half that of a male of the same degree of relationship to the deceased;85 but according to the old law of Medina women could not inherit at all.86 Of all the ancient nations with whose rules of inheritance we are acquainted, the Romans seem to have been the only one who gave daughters the same right of inheritance as sons.87 In India women had originally no such right at all, but in this, as in other matters relating to property, their position subsequently improved.88 In Attic law sons excluded daughters from succession,89 and the same was the case among the Scandinavian peoples still in the later Middle Ages.90 In England women are even to this day postponed to men in the order of succession to real property.91 Special privileges in the division of the father’s property were granted to the eldest son by the Hebrews92 and Hindus,93 and traces of primogeniture are met with in ancient Greek legislation.94 In the history of English law we find not only primogeniture, but ultimogeniture as well.95 As regards the question of legitimacy, we notice that in China all sons born in the household have an equal share in the inheritance, whether born of the principal wife or a concubine or a domestic slave.96 Among the Hebrews the sons of concubines had a right of inheritance,97 but whether on an equality with the other sons we do not know.98 According to Muhammedan law no distinction in point of inheritance is made between the child of a wife and that borne by a slave to her master, if the master acknowledge the child to be his own.99 In Hindu legislation the legitimate sons have the nearest right to the inheritance of their father, but a son begotten by a Sûdra on a female slave may, if permitted by his father, take a share of it.100 The Roman law on the subject may be summed up thus:—With regard to its father a natural child has no right at all, and differs in no respect from a stranger; with regard to its mother it has the same right as a legitimate child.101 In Teutonic countries the position of illegitimate children as to succession was much more favourable in earlier times than later on when Christianity made its influence felt, depriving them of all title to inheritance.102 Strangers were formerly unable both to inherit and to transmit property. For a long time it was the custom in Europe to confiscate their effects on their death; and not only persons who were born in a foreign country were subject to this droit d’aubaine, as it was called in France, but in some countries it was applied even to persons who removed from one diocese to another, or from the lands of one baron to another.103 Indeed, it is only in recent times that foreigners have been placed on a footing of equality with citizens with regard to inheritance. In 1790 the French National Assembly abolished the right of aubaine as being contrary to the principle of a human brotherhood.104 Later on, when the Code Napoléon was drawn up, a backward step was taken by restricting the abolition of this right to nations who acted with reciprocity; but this limitation only lasted till 1819, when all inequalities were finally removed in France.105 In England it was not until 1870 that foreigners were authorised to inherit and bequeath like British subjects.106