The origin and development of the moral ideas

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,144 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 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.”145 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.146 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 non-manifest 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.147 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 captor by the right of occupation,148 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.149 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,150 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.151 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.

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.152 The natives of Efate, in the New Hebrides, maintained that theft was condemned by their gods.153 In Aneiteum, another island belonging to the same group, thieves were supposed to be punished after death.154 In Netherland Island they were said to go to a prison of darkness under the earth;155 according to the beliefs of the Banks Islanders they were excluded from the true Panoi or Paradise.156 On the Gold Coast, “if a man had property stolen from his house, he might go to the priest of the local deity he was accustomed to worship, state the loss that had befallen him, make an offering of a fowl, rum, and eggs, and ask the priest to supplicate the god to punish the thief.”157 In Southern Guinea fetishes are inaugurated to detect and punish certain kinds of theft, and persons who are cognisant of such crimes and do not give information about them are also liable to be punished by the fetish.158 The Bechuanas speak of an unknown being, vaguely called by the name of Lord and Master of things (Mongalinto), who punishes theft. One of them said: “When it thunders every one trembles; if there are several together, one asks the other with uneasiness, Is there any one amongst us who devours the wealth of others? All then spit on the ground saying, We do not devour the wealth of others.

If a thunderbolt strikes and kills one of them, no one complains, no one weeps; instead of being grieved, all unite in saying that the Lord is delighted (that is to say, he has done right) with killing that man; we also say that the thief eats thunderbolts, that is to say, does things which draw down upon men such judgments.”159

According to the Zoroastrian Yasts, Rashnu Razista was “the best killer, smiter, destroyer of thieves and bandits.”160 In Greece Zeus κτήσιος was a guardian of the family property;161 and according to a Roman tradition the domestic god repulsed the robber and kept off the enemy.162 The removing of landmarks has frequently been regarded as sacrilegious.163 It was strictly prohibited by the religious law of the Hebrews.164 In Greece boundaries were protected by Zeus ὅριος. Plato says in his ‘Laws’:—“Let no one shift the boundary line either of a fellow-citizen who is a neighbour, or, if he dwells at the extremity of the land, of any stranger who is conterminous with him…. Every one should be more willing to move the largest rock which is not a land mark, than the least stone which is the sworn mark of friendship and hatred between neighbours; for Zeus, the god of kindred, is the witness of the citizen, and Zeus, the god of strangers, of the stranger, and when aroused terrible are the wars which they stir up.

He who obeys the law will never know the fatal consequences of disobedience, but he who despises the law shall be liable to a double penalty, the first coming from the Gods, and the second from the law.”165 The Romans worshipped Terminus or Jupiter Terminalis as the god of boundaries.166 According to an old tradition, Numa directed that every one should mark the bounds of his landed property by stones consecrated to Jupiter, that yearly sacrifices should be offered to them at the festival of the Terminalia, and that, “if any person demolished or displaced these bound-stones, he should be looked upon as devoted to this god, to the end that anybody might kill him as a sacrilegious person with impunity and without being defiled with guilt.”167 In the higher religions theft of any kind is frequently condemned as a sin.