The origin and development of the moral ideas

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