Volume 2 — CHAPTER XXVIII THE RIGHT OF PROPERTY

THE right of property implies that a certain person or certain persons are recognised as having a right to the exclusive disposal of a certain thing. The owner is not necessarily allowed to do with his property whatever he likes; but whether absolute or limited, his right to disposal is not shared by anybody else, save under very exceptional circumstances, as in the case of “compulsion by necessity.”1 Property in a thing thus means not only that the owner of it is allowed, at least within certain limits, to use or deal with it at his discretion, but also that other persons are forbidden to prevent him from using or dealing with it in any manner he is entitled to.

The most common offence against property is illicit appropriation of other persons’ belongings. Not the mere fact that individuals are in actual possession of certain objects, but the public disapproval of acts by which they are deprived of such possession, shows that they have proprietary rights over those objects. Hence the universal condemnation of what we call theft or robbery proves that the right of property exists among all races of men known to us.

Travellers often accuse savages of thievishness.2 But then their judgments are commonly based upon the treatment to which they have been subject themselves, and from this no conclusions must be drawn as regards intra-tribal morality. Nor can races who have had much to do with foreigners be taken as fair representatives of savage honesty, as such contact has proved the origin of thievish propensities.3 In the majority of cases uncivilised peoples seem to respect proprietary rights within their own communities, and not infrequently even in their dealings with strangers. Many of them are expressly said to condemn or abhor theft, at any rate when committed among themselves. And that all of them disapprove of it may be inferred from the universal custom of subjecting a detected thief to punishment or revenge, or, at the very least, of compelling him to restore the stolen property to its owner.

The Fuegians have shown themselves enterprising thieves on board European vessels visiting their shores;4 but, when presents were given to them, a traveller noticed that “if any present was designed for one canoe, and it fell near another, it was invariably given to the right owner.”5 The boys are taught by their fathers not to steal;6 and in case a theft has been committed, “quand le coupable est découvert et chatié, l’opinion publique est satisfaite.”7 In his dealings with the Tehuelches Lieutenant Musters was always treated with fairness, and the greatest care was taken of his belongings, though they were borrowed at times. He gives the following advice to the traveller:—“Never show distrust of the Indians; be as free with your goods and chattels as they are to each other…. As you treat them so they will treat you.”8 Among the Abipones doors, locks, and other things with which civilised men protect their possessions from thieves, were as unnecessary as they were unknown; and if children pilfered melons grown in the gardens of the missionaries or chickens reared in their houses, “they falsely imagined that these things were free to all, or might be taken not much against the will of the owner.”9 Among the Brazilian Indians theft and robbery were extremely rare, and are so still in places where strangers have not settled.10 We are told that the greatest insult which could be offered to an Indian was to accuse him of stealing, and that the wild women preferred the epithet of a prostitute to that of a thief.11 When detected a thief was not only obliged to restore the property he had stolen, but was punished with stripes and wounds, the chief often acting as executioner.12 Among the Indians of British Guiana theft and pilfering rarely occur; “if they happen to take anything, they do it before one’s eyes, under the notion of having some claim to it, which, when called to an account, they are always prepared to substantiate.”13 If anything is stolen from his house during his absence, the Guiana Indian thinks that the missing article has been carried off by people of some other race than his own.14 Formerly, when the Caribs lost anything, they used to say, “The Christians have been here.”15 In Hayti the punishment of a thief was to be eaten.16

It is known that many North American tribes had a very high standard of honesty among themselves. Domenech wrote:—“The Indians who do not come in contact with the Palefaces never appropriate what belongs to others; they have no law against theft, as it is a crime unknown among them. They never close their doors.”17 According to Colonel Dodge, theft was the sole unpardonable crime amongst them; a man found guilty of stealing even the most trifling article from a member of his own band was whipped almost to death, deprived of his property, and together with his wives and children driven away from the band to starve or live as best he could.18 Among the Rocky Mountains Indians visited by Harmon theft was frequently punished with death.19 Among the Omahas, “when the suspected thief did not confess his offence, some of his property was taken from him until he told the truth. When he restored what he had stolen, one-half of his own property was returned to him, and the rest was given to the man from whom he had stolen. Sometimes all of the policemen whipped the thief. But when the thief fled from the tribe, and remained away for a year or two, the offence was not remembered.”20 Among the Wyandots the punishment for theft is twofold restitution.21 The Iroquois looked down upon theft with the greatest disdain, although the lash of public indignation was the only penalty attached to it.22 The Potawatomis considered it one of the most atrocious crimes.23 Among the Chippewas Keating found a few individuals who were addicted to thieving, but these were held in disrepute.24 Richardson praises the Chippewyans for their honesty, no precautions for the safety of his and his companions property being required during their stay among them.25 Mackenzie was struck by the remarkable honesty of the Beaver Indians; “in the whole tribe there were only two women and a man who had been known to have swerved from that virtue, and they were considered as objects of disregard and reprobation.”26 Among the Ahts “larceny of a fellow-tribesman’s property is rarely heard of, and the aggravation of taking it from the house or person is almost unknown“; nay, “anything left under an Indian’s charge, in reliance on his good faith, is perfectly safe.”27 The Thlinkets generally respect the property of their fellow-tribesmen; but although they admit that theft is wrong they do not regard it as a very serious offence, which disgraces the perpetrator, and if a thief is caught he is only required to return the stolen article or to pay its value.28 Among the Aleuts “theft was not only a crime but a disgrace”; for the first offence of this kind corporal punishment was inflicted, for the fourth the penalty was death.29 According to Egede, the Greenlanders had as great an abhorrence of stealing among themselves as any nation upon earth;30 according to Cranz, they considered such an act “excessively disgraceful.”31 Similar views still prevail among them, as also among other Eskimo tribes.32 A Greenlander never touches driftwood which another has placed above high-water mark, though it would often be easy to appropriate it without fear of detection.33 Parry states that, during his stay at Igloolik and Winter Island, a great many instances occurred in which the Eskimo scrupulously returned articles that did not belong to them, even though detection of a theft, or at least of the offender, would have been next to impossible.34

Among the Chukchi it is held criminal to thieve “in the family and race to which a person belongs”;35 and incorrigible thieves are sometimes banished from the village.36 In Kamchatka, if anybody was found to be a thief he was beaten by the person from whom he had stolen, without being allowed to make resistance, and no one would ever after be friends with him.37 The three principal precepts of the Ainu are to honour old age, not to steal, not to lie;38 theft is also uncommon among them, and is severely punished.39 Among the Kirghiz “whoever commits a robbery on any of the nation must make restitution to nine times the value.”40 Among the Tunguses a thief is punished by a certain number of strokes; he is besides obliged to restore the things stolen, and remains covered with ignominy all the rest of his life.41 The Jakuts,42 Ostyaks,43 Mordvins44 Samoyedes,45 and Lapps,46 are praised for their honesty, at least among their own people; and so are the Butias,47 Kukis,48 Santals,49 the hill people in the Central Provinces of India,50 and the Chittagong Hill tribes.51 The Kurubars of the Dekhan are of such known honesty, that on all occasions they are entrusted with the custody of produce by the farmers, who know that they would rather starve than take one grain of what was given them in charge.52 “Honest as a Pahari,” is a proverbial expression. In fact, among these mountaineers theft is almost unknown, and the men “carry treasures, which to them would be priceless, for days and days, along wild mountain tracks, whence at any moment they might diverge, and never be traced. Even money is safely entrusted to them, and is invariably delivered into the right hands.”53 Harkness says of the Todás:—“I never saw a people, civilised or uncivilised, who seemed to have a more religious respect for the rights of meum et tuum. This feeling is taught to their children from the tenderest age.”54 Among the Chukmas “theft is unknown.”55 Among the Karens habitual thieves are sold into slavery.56 Among the Shans theft of valuable property is punishable with death, though it may be expiated by a money payment; but in cases of culprits who cannot pay, or whose relatives cannot pay, death is looked upon as a fitting punishment even for petty thefts.57 At Zimmé, “if a theft is proved, three times the value of the article is decreed to the owner; and if not paid, the offender, after suffering imprisonment in irons, is made over with his family, to be dealt with as in cases of debt.”58 Among the hill tribes of North Aracan a person who commits theft is bound to return the property or its value and pay a fine not exceeding Rs. 30.59 Among the Kandhs, on the other hand, the restitution of the property abstracted or the substitution of an equivalent is alone required by ancient usage; but this leniency extends to the first offence only, a repetition of it being followed by expulsion from the community.60 The Andaman Islanders call theft a yūbda, or sin.61 Among those Veddahs who live in their natural state, theft and robbery are not known at all.62 They think it perfectly inconceivable that any person should ever take that which does not belong to him,63 and death only would, in their opinion, be the punishment for such an offence.64

In the Malay Archipelago native custom punishes theft with a fine, most frequently equivalent to twice the value of the stolen article,65 or with slavery,66 mutilation,67 or even death;68 and in many islands it was lawful to kill a thief caught in the act.69 Among the Malays of Perak,70 Dyaks,71 Kyans,72 Bataks,73 and the natives of Ambon and Uliase,74 theft is said to be unknown or almost so, at least within their own communities.

Many of the South Sea Islanders have been described as honest among themselves, and some of them as honest even towards Europeans.75 In the opinion of Captain Cook the light-coloured Polynesians have thievish propensities, but the dark-coloured not.76 In the Tonga Islands theft was considered an act of meanness rather than a crime,77 whereas in many other islands it was regarded as a very grave offence.78 Sometimes the delinquent was subject to private retaliation,79 sometimes to a fine,80 or blows,81 or the loss of a finger,82 or the penalty of death.83

Among the natives of Herbert River, Northern Queensland, there is “considerable respect for the right of property, and they do not steal from one another to any great extent…. If they hunt they will not take another person’s game, all the members of the same tribe having apparently full confidence in each other.”84 When a theft does occur, “the thief is challenged by his victim to a duel with wooden swords and shields; and the matter is settled sometimes privately, the relatives of both parties serving as witnesses, sometimes publicly at the borboby, where two hundred to three hundred meet from various tribes to decide all their disputes. The victor in the duel wins in the dispute.”85 So also among the Dieyerie tribe, “should any native steal from another, and the offender be known, he is challenged to fight by the person he has robbed, and this settles the matter.”86 Of the Bangerang tribe of Victoria we are told that, amongst themselves, they were scrupulously honest;87 and, speaking of West Australian natives, Mr. Chauncy expresses his belief that “the members of a tribe never pilfer from each other.”88 In their relations to Europeans, again, Australian blacks have been sometimes accused of thievishness,89 sometimes praised for their honesty.90 From his own observation Mr. Curr has no doubt that they feel that theft is wrong.91 Of the aborigines of West Australia we are told that they occasionally speared the sheep and robbed the potato gardens of the early settlers simply because they did not understand the settlers’ views regarding property, having themselves no separate property in any living animal except their dogs or in any produce of the soil. But “only entrust a native with property, and he will invariably be faithful to the trust. Lend him your gun to shoot game, and he will bring you the result of his day’s sport; send him a long journey with provisions for your shepherd, and he will certainly deliver them safely. Entrust him with a flock of sheep through a rugged country to a distant run, and he and his wife will take them generally more safely than a white man would.”92

”The Arab,” says Burckhardt, “robs his enemies, his friends, and his neighbours, provided that they are not actually in his own tent, where their property is sacred. To rob in the camp, or among friendly tribes, is not reckoned creditable to a man; yet no stain remains upon him for such an action, which, in fact, is of daily occurrence. But the Arab chiefly prides himself on robbing his enemies.”93 This, however, seems to hold true only of Bedouin tribes inhabiting rich pasture plains, who are much exposed to attacks from others, whereas in more sheltered territories a person who “attempts to steal in the tents of his own tribe, is for ever dishonoured among his friends.” Thus among the Arabs of Sinai robberies are wholly unknown; any articles of dress or of furniture may be left upon a rock without the least risk of their being taken away.94 According to Waháby law, a robber is obliged to return the stolen goods or their value, but if the offence is not attended with circumstances of violence he escapes without further punishment, except a fine to the treasury.95 Among some Bedouins of Ḥadhramaut theft from a tribesman is punished with banishment from the tribe.96 Lady Anne and Mr. Blunt state that, with regard to honesty, the pure Bedouin stands in marked contrast to his half-bred brethren. Whilst the Kurdish and semi-Kurdish tribes of Upper Mesopotamia make it almost a point of honour to steal, the genuine Arab accounts theft disgraceful, although he holds highway robbery to be a right. In the large tribes persons of known dishonesty are not tolerated.97

In Africa honesty between members of the same tribe is no uncommon characteristic of the native races, and some of them have displayed the same quality in their dealings with European travellers.98 Andersson, for instance, tells us that the Ovambo, so far as they came under his observation, were strictly honest and appeared to entertain great horror of theft. “Without permission,” he says, “the natives would not even touch anything; and we could leave our camp free from the least apprehension of being plundered. As a proof of their honesty, I may mention, that, when we left the Ovambo country, the servants forgot some trifles; and such was the integrity of the people, that messengers actually came after us a very considerable distance to restore the articles left behind.”99 A few African peoples are said to look upon petty larceny almost with indifference.100 Among others thieves are only compelled to restore stolen property, or to return an equivalent for it,101 but at the same time they are disgraced or laughed at.102 In Africa, as elsewhere, theft is frequently punished with a fine.103 Thus among the Bahima,104 Wadshagga,105 and Tanala of Madagascar,106 thieves are made to pay twice the value of the stolen goods; among the Takue,107 Rendile,108 and Herero,109 three times their value; among the Bechuanas double or fourfold.110 Among the Taveta, if a man commits a theft, he has to refund what he has robbed, and five times the value of the stolen property can be claimed by the person who has suffered the loss.111 Among the Kafirs, “in cases of cattle stealing, the law allows a fine of ten head, though but one may have been stolen, provided the animal has been slaughtered, or cannot be restored.”112 Among the Masai, according to Herr Merker, the fine for stealing cattle is likewise a tenfold one;113 whilst, according to another authority, “if a man steals one cow, or more than one cow, all his property is given to the man from whom he has stolen.”114 Among the Basukuma all thieves, it seems, are punished with the confiscation of everything they possess.115 Other punishments for theft are imprisonment,116 banishment,117 slavery,118 flogging,119 mutilation,120 and, especially under aggravating circumstances, death.121 In some African countries a thief caught in the act may be killed with impunity.122

The condemnation of theft, in one and the same people, varies in degree according to a variety of circumstances. It is influenced by the value of the goods stolen, as appears from the different punishments inflicted in cases where the value differs.123 Thus, when the penalty consists of a fine, its amount is often strictly proportioned to the loss suffered by the owner, the thief being compelled to pay twice, or three, or four, or five, or ten times the worth of the appropriated article.124 Among the Aztecs a petty thief became the slave of the person from whom he had stolen, whilst theft of a large amount was almost invariably punished with death.125 According to the Koran, theft is to be punished by cutting off the offender’s right hand for the first offence; but a Sunneh law ordains that this punishment shall not be inflicted if the value of the stolen property is less than a quarter of a deenár.126 Ancient Scotch law proportioned the punishment of theft to the value of the goods stolen, heightening it gradually from a slight corporal to a capital punishment, if the value amounted to thirty-two pennies Scots, which in the reign of David I. was the price of two sheep.127 In England a distinction was made between “grand” and “petty larceny,” the line between them being drawn at twelve pence, and grand larceny was capital at least as early as the time of Edward I.128 Among various peoples custom or law punishes with particular severity the stealing of objects of a certain kind, such as cattle, horses, agricultural implements, corn, precious metals, or arms.129 The Negroes of Axim, says Bosman, “will rather put a man to death for stealing a sheep, than killing a man.”130 The Kalmucks regard horse-stealing as the greatest of all crimes.131 The ancient Teutons held cattle-lifting and robbery of crops to be particularly disgraceful.132 According to Roman law, people who stole an ox or horse from the pastures or from a stable, or ten sheep, or four or five swine, might be punished even with death.133 The natives of Danger Island, in the South Seas, punished with drowning anyone who was caught stealing food, “the most valuable property they knew of.”134 In Tahiti, on the other hand, those who stole clothes or arms were commonly put to death, whereas those who stole provisions were bastinadoed.135 Among other peoples the appropriation of a small quantity of food belonging to somebody else is not punished at all.136 The Masai do not punish a person for stealing milk or meat.137 Among the Bakoki “it was not a crime to steal bananas.”138 In ancient Mexico “every poor traveller was permitted to take of the maize, or the fruit-bearing trees, which were planted by the side of the highway, as much as was sufficient to satisfy immediate hunger.”139 Among the Hebrews a person was allowed to go into his neighbour’s vineyard and eat grapes at his own pleasure, or to pluck ears in his field, but the visitor was forbidden to put any grapes in his vessel or to move a sickle into the standing corn.140 It is said in the Laws of Manu that “a twice-born man, who is travelling and whose provisions are exhausted, shall not be fined, if he takes two stalks of sugar-cane or two esculent roots from the field of another man.”141 According to ancient Swedish laws, a passer-by could take a handful of peas, beans, turnips, and so forth, from another person’s field, and a traveller could give to his fatigued horse some hay from any barn he found in the wood.142 However, whilst the punishment of theft is commonly, to some extent, influenced by the worth or nature of the appropriated property, there are peoples who punish thieves with the same severity whether they have stolen little or much. Among the North American Indians described by Colonel Dodge “the value of the article stolen is not considered. The crime is the theft.”143 Among the Yleou, a Manchurian tribe mentioned by ancient Chinese chroniclers, theft of any kind was punished with death.144 The Beni Mzab in the Sahara sentence a thief to two years banishment and the payment of fifty francs, independently of the value of the thing he has stolen.145

The degree of criminality attached to theft also depends on the place where it is committed. To steal from a house, especially after breaking the door, is frequently regarded as an aggravated form of theft.146 According to Muhammedan law, the punishment of cutting off the right hand of the thief is inflicted on him only if the stolen property was deposited in a place to which he had not ordinary or easy access; hence a man who steals in the house of a near relative is not subject to this punishment, nor a slave who robs the house of his master.147 Among some peoples a theft committed by night is punished more heavily than one committed by day.148

A distinction is further made between ordinary theft and robbery. The robber is treated sometimes more severely,149 sometimes more leniently than the thief, and is not infrequently regarded with admiration. Among the Wanyamwezi thieves are despised, but robbers are honoured, especially by the women, on account of their courage.150 In Uganda robbery is not thought shameful, although it is rigorously punished.151 In Sindh no disgrace is attached to larceny when the perpetrators are armed.152 Among the Ossetes, “where open robbery has been committed outside a village, the court merely requires the stolen article or an equivalent to be restored; but in cases of secret theft, five times the value must be paid. Robbery and theft within the boundaries of a village are rated much higher. A proverb says, ‘What a man finds on the high-road is God’s gift’; and in fact highway robbery is hardly regarded as a crime.”153 The Kazak Kirghiz go so far as to consider it almost dishonourable for a man never to have taken part in a baranta, or cattle-lifting exploit.154 According to Bedouin notions, there is a clear distinction between “taking and stealing.” To steal is to abstract clandestinely, “whereas to take, in the sense of depriving another of his property, generally implies to take from him openly, by right of superior force.”155 The Arabian robber, says Burckhardt, considers his profession honourable, and “the term haràmy (robber) is one of the most flattering titles that could be conferred on a youthful hero.”156 In ancient Teutonic law theft and robbery were kept apart; the one was the secret, the other the open crime. In most law-books robbery was subject to a milder punishment than theft, and was undoubtedly regarded as far less dishonourable. Indeed, however illegal the mode of acquiring property may have been, publicity was looked upon as a palliation of the offence, if not as a species of justification, even though the injured party was a fellow-countryman.157 This difference between theft and robbery seems still to have been felt in the thirteenth century, when Bracton had to argue that the robber is a thief.158 But in later times robbery was regarded by the law of England as an aggravated kind of theft.159

A line has been drawn between manifest and non-manifest theft. Among many peoples thieves who are caught in the act may be killed with impunity,160 or are punished much more heavily than other thieves, frequently with death.161 We also hear that the worst part of the offence consists in being detected, and that a successful thief is admired rather than disapproved of.

It is said of the Navahos that “the time is evidently not long gone by when with them, as among the Spartans, adroit theft was deemed honourable.”162 Among the Californian Yuki “thieving is a virtue…, provided the thief is sly enough not to get caught.”163 The Ahts “have a tendency to sympathise with some forms of theft, in which dexterity is required.”164 Among the Thlinkets “theft does not seem to be considered a disgrace; the detected thief is at most ashamed of his want of skill.”165 The Chukchi “have but a bad opinion of a young girl who has never acquitted herself cleverly in some theft; and without such testimony of her dexterity and address she will scarcely find a husband.”166 In Mongolia “known thieves are treated as respectable members of society. As long as they manage well and are successful, little or no odium seems to attach to them; and it is no uncommon thing to hear them spoken of in terms of high praise. Success seems to be regarded as a kind of palliation of their crimes.”167 Among the Kukis, according to early notices, the accomplishment most esteemed was dexterity in thieving, whilst the most contemptible person was a thief caught in the act.168 The Persians say that “it is no shame to steal, only to be found out.”169 The same view seems to be held by the Motu tribe of New Guinea,170 the natives of Tana (New Hebrides),171 the Maoris,172 and several African peoples.173 In Fiji “success, without discovery, is deemed quite enough to make thieving virtuous, and a participation in the ill-gotten gain honourable.”174 Among the Matabele “the thief is not despised because he has stolen, but because he has allowed himself to be caught, and if his crime remains undetected he is admired by all.”175 Among the aborigines of Palma, in the Canary Islands, “he was esteemed the cleverest fellow who could steal with such address as not to be discovered.”176

The moral valuation of theft varies according to the social position of the thief and of the person robbed. Among the Marea a nobleman who commits theft is only obliged to restore the appropriated article; but if a commoner steals from another commoner, the whole of his property may be confiscated by the latter’s master, and if he steals from a nobleman he becomes the nobleman’s serf.177 Among the Káfirs of the Hindu-Kush the penalty for theft is theoretically a fine of seven or eight times the value of the thing stolen; “but such a punishment in ordinary cases would only be inflicted on a man of inferior mark, unless it were accompanied by circumstances which aggravated the original offence.”178 In Rome, according to an old law, a freeman caught in the act of thieving was scourged and delivered over to the party aggrieved, whereas a slave in similar circumstances was scourged and then hurled from the Tarpeian rock;179 and according to an enactment of Hadrian, the punishment for stealing an ox or horse from the pastures or from a stable was only relegation if the offender was a person of rank, though ordinary persons might have to suffer death for the same offence.180 In ancient India, on the other hand, the punishment increased with the rank of the criminal. According to the Laws of Manu, “in a case of theft the guilt of a Sûdra shall be eightfold, that of a Vaisya sixteenfold, that of a Kshatriya two-and-thirtyfold, that of a Brâhmana sixty-fourfold, or quite a hundredfold, or even twice four-and-sixtyfold; each of them knowing the nature of the offence.”181 In other cases, again, the degree of guilt is determined by the station of the person robbed.182 Among the Gaika tribe of the Kafirs, for instance, the fine by which a theft is punished “is fixed according to the rank of the person against whom the offence is committed, confiscation of property being the general punishment imposed for offences against chiefs.”183 Among many other peoples theft or robbery committed on the property of a chief or king is treated with exceptional severity.184 Sometimes difference in religion affects the criminality of the thief. According to modern Buddhism, “to take that which belongs to a sceptic is an inferior crime, and the guilt rises in magnitude in proportion to the merit of the individual upon whom the theft is perpetrated. To take that which belongs to the associated priesthood, or to a supreme Buddha, is the highest crime.”185 But the commonest and most important personal distinction influencing the moral valuation of theft and robbery is that between a tribesman or fellow-countryman and a stranger.

Among uncivilised races intra-tribal theft is carefully distinguished from extra-tribal theft. Whilst the former is forbidden, the latter is commonly allowed, and robbery committed on a stranger is an object of praise.186

The Tehuelches of Patagonia, “although honest enough as regards each other, will, nevertheless, not scruple to steal from any one not belonging to their party.”187 The Abipones, who never took anything from their own countrymen, “used to rob and murder the Spaniards whilst they thought them their enemies.”188 Among the Mbayás the law, Thou shalt not steal, “applies only to tribesmen and allies, not to strangers and enemies.”189 The high standard of honesty which prevailed among the North American Indians did not refer to foreigners, especially white men, whom they thought it no shame to rob or cheat.190 “A theft from an individual of another band,” says Colonel Dodge, “is no crime. A theft from one of the same band is the greatest of all crimes.”191 Among the Californian Indians, for instance, who are proverbially honest in their own neighbourhood, “a stranger in the gates who seems to be friendless may lose the very blankets off him in the night.”192 Among the Ahts thieving “is a common vice where the property of other tribes, or white men, is concerned.”193 Of the Dacotahs we read that, though the men think it undignified for them to steal even from white people, “they send their wives thus unlawfully to procure what they want.”194 Of the Greenlanders the old missionary Egede writes:—“If they can lay hands upon any thing belonging to us foreigners, they make no great scruple of conscience about it. But, as we now have lived some time in the country amongst them, and are look’d upon as true inhabitants of the land, they at last have forborne to molest us any more that way.”195 Another early authority states, “If they can purloin or even forcibly seize the property of a foreigner, it is a feather in their cap”;196 and, according to Dr. Nansen, it is still held by the Greenlanders “to be far less objectionable to rob Europeans than their own fellow-countrymen.”197 Many travellers have complained of the pilfering tendencies of Eskimo tribes with whom they have come into contact.198 Richardson believes that, in the opinion of an Eskimo, “to steal boldly and adroitly from a stranger is an act of heroism.”199 Of the Eskimo about Behring Strait Mr. Nelson writes:—“Stealing from people of the same village or tribe is regarded as wrong…. To steal from a stranger or from people of another tribe is not considered wrong so long as it does not bring trouble on the community.”200

The Chukchi201 and Koriaks202 consider theft reputable or glorious if committed on a stranger, though criminal if committed in their own communities. The hill people of the Central Provinces of India, whilst observant of the rights of property among themselves, do not scruple to plunder those to whom they are under no obligation of fidelity.203 The Bataks of Sumatra, who hardly ever steal among themselves, are expert at pilfering from strangers when not restrained by the laws of hospitality, and think it no moral offence to do so.204 Other tribes in the Malay Archipelago likewise hold it allowable to plunder the same stranger or traveller who, when forlorn and destitute, would find a hospitable reception among them.205 “The strict honesty,” says Mr. Melville, “which the inhabitants of nearly all the Polynesian Islands manifest towards each other is in striking contrast with the thieving propensities some of them evince in their intercourse with foreigners. It would almost seem that, according to their peculiar code of morals, the pilfering of a hatchet or a wrought nail from a European is looked upon as a praiseworthy action. Or rather, it may be presumed, that, bearing in mind the wholesale forays made upon them by their nautical visitors, they consider the property of the latter as a fair object of reprisal.”206 In Fiji theft is regarded as no offence at all when practised on a foreigner.207 The Savage Islanders consider theft from a tribesman a vice, but theft from a member of another tribe a virtue.208 Of the Sandwich Islanders, again, we are told that they stole from rich strangers on board well loaded ships, whereas Europeans settled among them left their doors and shops unlocked without apprehension.209 Speaking of the honesty of the Herbert River natives, Northern Queensland, Mr. Lumholtz adds:—“It is, of course, solely among members of the same tribe that there is so great a difference between mine and thine; strange tribes look upon each other as wild beasts.”210 The aborigines of West Australia “would not consider the act of pillaging base when practised on another people, or carried on beyond the limits of their own tribe.”211

Among the For tribe of Central Africa “it is not considered right to rob strangers, but the chiefs wink at this offence, and the stranger runs but a poor chance of obtaining justice.”212 Of the Mandingoes Caillié observes that, while they do not steal from each other, “their probity with respect to others is very equivocal and in particular towards strangers, who would be very imprudent to shew them any thing that might tempt their cupidity.”213 When an Eastern Central African is plundered by a companion, he may be heard exclaiming, “If you had stolen from a white man, then I could have understood it, but to steal from a black man——.”214 Among the Masai the warriors and old men have a profound contempt for a thief, but “cattle-raiding from neighbouring tribes they do not consider stealing.”215 The Wafiomi216 and Shilluk217 regard theft or robbery committed on a stranger as a praiseworthy action, though they never or rarely practise it on members of their own people. The Barea and Kunáma218 and the inhabitants of Saraë219 consider it honourable for a man to rob an enemy of his tribe. The Kabyles of Djurdjura, who demand strict mutual honesty from members of the same village, see nothing wrong in stealing from a stranger.220 Among the Bedouins “travellers passing without proper escort from or introduction to the tribes, may expect to lose their beasts, goods, clothes, and all they possess. There is no kind of shame attached to such acts of rapine…. By desert law, the act of passing through the desert entails forfeiture of goods to whoever can seize them.”221 Indeed, the Arab is proud of robbing his enemies, and of bringing away by stealth what he could not have taken by open force.222 The Ossetes “distinguent … le vol commis au préjudice d’une personne étrangère à la famille, et le vol commis au préjudice d’un parent. Le premier, à proprement parler, n’est pas un acte criminel; le second, au contraire, est tenu pour un délit.”223

Similar views prevailed among the ancient Teutons. “Robberies,” says Caesar, “which are committed beyond the boundaries of each state bear no infamy, and they avow that these are committed for the purpose of disciplining their youth and of preventing sloth.”224 The same was the case with the Highlanders of Scotland until they were brought into subjection after the rebellion of 1745.225 “Regarding every Lowlander as an alien, and his cattle as fair spoil of war,” says Major-General Stewart, “they considered no law for his protection as binding…. Yet, except against the Lowlanders or a hostile clan, these freebooters maintained, in general, the strictest honesty towards one another, and inspired confidence in their integrity…. In the interior of their own society all property was safe, without the usual security of bolts, bars, and locks.”226 In the Commentary to the Irish Senchus Mór it is stated that, whilst an ordinary thief loses his full honour-price at once, committing theft in another territory deprives a person of only half his honour-price, until it is committed the third time.227 Throughout the Middle Ages all Europe seems to have tacitly agreed that foreigners were created for the purpose of being robbed.228 In the thirteenth century there were still several places in France in which a stranger who fixed his residence for a year and a day became the serf of the lord of the manor.229 In England, till upwards of two centuries after the Conquest, foreign merchants were considered only as sojourners coming to a fair or market, and were obliged to employ their landlords as brokers to buy and sell their commodities; and one stranger was often arrested for the debt, or punished for the misdemeanour, of another.230 In a later age the old habit of oppression was still so strong that, when the State suddenly wanted a sum of money, it seemed quite natural that foreigners should be called upon to provide a part of it.231 The custom of seizing the goods of persons who had been shipwrecked, and of confiscating them as the property of the lord on whose manor they were thrown, seems to have been universal;232 and in some European countries the laws even permitted the inhabitants of maritime provinces to reduce to servitude people who were shipwrecked on their coast.233 The sea laws of Oléron, which probably date from the twelfth century, tell us that in many places shipwrecked sailors meet with people more inhuman, barbarous, and cruel than mad dogs, who slaughter those unhappy mariners in order to obtain possession of their money, clothes, and other property.234 In the latter part of the Middle Ages attempts were incessantly made by sovereigns and councils to abolish this ancient right, so far as Christian sailors were concerned,235 whereas the robbing of shipwrecked infidels was not prohibited.236 But for a long time these endeavours were far from being successful;237 and it was even argued that, as shipwrecks were punishments sent by God, it was impious to be merciful to the victims.238

The readiness with which wars are waged, and the destruction of property held legitimate in warfare, are other instances of the little regard felt for the proprietary rights of foreigners. Grotius maintained that “such ravage is tolerable as in a short time reduces the enemy to seek peace”;239 and in the practice of his time devastation was constantly used independently of any immediate military advantage accruing from it.240 In the eighteenth century the alliance of devastation with strategical objects became more close, but it was still regarded as an independent means of attack by Wolff,241 Vattel,242 and others;243 and even at the beginning of the nineteenth century instances of devastation of a not necessary kind occasionally occurred.244 In later days opinion has decisively laid down that the measure of permissible devastation is to be found in the strict necessities of war.245 Yet there is an exception to this rule: during the siege of a fortified town custom still permits the houses of the town itself to be bombarded, with a view to inducing the commandant to surrender on account of the misery suffered by the inhabitants.246 Under the old customs of war a belligerent possessed a right to seize and appropriate all property belonging to a hostile state or its subjects, of whatever kind it might be and in any place where acts of war were permissible.247 Subsequently this extreme right has been tempered by usage, and in a few directions it has disappeared.248 Thus the principle proclaimed, but not always acted on, by the Revolutionary Government of France, that private property should be respected on a hostile as on a friendly soil,249 is favoured by present opinion and usage,250 and pillage by the soldiers of an invading army is expressly forbidden.251 At the same time there is unfortunately no doubt that in all wars pillage does continue with impunity;252 and we sometimes hear of a captured town being sacked, and the houses of the inhabitants being plundered, on the plea that it was impossible for the general to restrain his soldiers.253 Moreover, private property taken from the enemy on the field of battle, in the operations of a siege, or in the storming of a place which refuses to capitulate, is usually regarded as legitimate spoils of war.254 Military contributions and requisitions are levied upon the inhabitants of the hostile territory.255 And whilst the progress of civilisation has slowly tended to soften the extreme severity of the operations of war by land, it still remains unrelaxed in respect to maritime warfare, the private property of the enemy taken at sea or afloat in port being indiscriminately liable to capture and confiscation. In justification of this it is said that the object of maritime wars is the destruction of the enemy’s commerce and navigation, and that this object can only be attained by the seizure of private property.256

Not only does the respect in which the right of property is held vary according to the status of the owner, but in many instances certain persons are deemed incapable of possessing such a right.

The father’s power over his children may imply that the latter, even when grown-up, have no property of their own, the father having a right to the disposal of their earnings. This is the case among some African peoples,257 and the Kandhs of India.258 In the Laws of Manu, the mythical legislator of the Hindus, it is said, “A wife, a son, and a slave, these three are declared to have no property; the wealth they earn is acquired for him to whom they belong.”259 But according to the standard commentators this only means that the persons mentioned are unable to dispose of their property independently;260 and it is expressly stipulated that property acquired by learning belongs exclusively to the person to whom it was given, and so also the gift of a friend.261 In Rome the peculium, or separate property, allowed to a son was originally subject to the authority of the house-father, should he choose to exercise such authority; and it was only by very late legislation that sons were secured the independent holding of their peculium.262 Even now it is the law in many European countries that, during the minority of a child, the father or mother has the usufruct of its property, with the exception of certain kinds of property expressly specified.263

Among some uncivilised peoples women are said to be incapable of holding property;264 but this is certainly not the rule among savage tribes, not even among the very lowest. When Mr. Snow wished to buy a canoe from some Fuegians, his request was refused on the ground that the object in question belonged to an old woman, who would not part with it;265 and among the blacks of Australia Mr. Curr has often heard husbands ask permission of their wives to take something out of their bags.266 There are instances in which the property owned by a woman is by marriage transferred to her husband;267 but more commonly, it seems, the wife remains mistress of her own property during the existence of the marriage relation.268 Among many savages considerable proprietary privileges are granted to the female sex. We have seen that the household goods are frequently regarded as the special property of the wife.269 Among the Navahos of New Mexico everything, except horses and cattle, practically belongs to the married women.270 Among the Kafirs of Natal, “when a man takes his first wife, all the cows he possesses are regarded as her property,” and the husband can, theoretically, neither sell nor otherwise dispose of them without his wife’s consent.271 The Mandans of North America have a custom that all the horses which a young man steals or captures in war belong to his sisters.272 Among the Koch of India, we are told, “the men are so gallant as to have made over all property to the women.”273 As regards woman’s right of ownership, nations of a higher culture compare unfavourably with many savages. In Japan the husband formerly had full rights over the property of his wife.274 We have already noticed the disabilities in point of ownership to which women were once subject in India; but the development of strīdhana, or peculium of the female members of a family, shows that they gradually became less dependent on their husbands in matters relating to property.275 Among the ancient Hebrews women appear to have been in every respect regarded as minors so far as proprietary rights were concerned.276 In Rome a marriage with conventio in manum, which was the regular form of marriage in early times, gave the husband a right to all the property which the wife had when she married, and entitled him to all she might acquire afterwards whether by gift or by her own labour.277 Later on marriage without manus became the ordinary Roman marriage, and this, together with the downfall of the ancient patria potestas, led to the result that finally all the wife’s property was practically under her own control, save when a part of it had been converted by settlement into a fund for contributing to the expenses of the conjugal household.278 But, as we have noticed in another place, the new religion was not favourable to the remarkable liberty granted to married women during the pagan Empire;279 and the combined influence of Teutonic custom and Canon law led to those proprietary incapacities of wives which up to quite recent times have disfigured the lawbooks of Christian Europe.280 In England, before 1857, even a man who had abandoned his wife and left her unaided to support his family might at any time return to appropriate her earnings and to sell everything she had acquired, and he might again and again desert her, and again and again repeat the process of spoliation. In 1870 a law was passed securing to women the legal control of their own earnings, but all other female property, with some insignificant exceptions, was left absolutely unprotected. And it was not until the Married Women’s Property Act of 1882 that a full right to their own property was given to English wives.281

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.