The origin and development of the moral ideas

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