[275] Jolly, ‘Recht und Sitte,’ in Buehler, Grundriss der indo-arischen Philologie, ii. 78, 79, 87 sqq. Kohler, ‘Indisches Ehe- und Familienrecht,’ in Zeitschr. f. vergl. Rechtswiss. iii. 424 sqq.
[276] Benzinger, ‘Law and Justice,’ in Cheyne and Black, Encyclopædia Biblica, iii. 2724.
[277] Hunter, Roman Law, p. 295. Maine, Early History of Institutions, p. 312. Bryce, Studies in History and Jurisprudence, ii. 387. Girard, op. cit. p. 163.
[278] Hunter, Roman Law, p. 295 sqq. Maine, Early History of Institutions, p. 317 sqq. Friedlaender, Darstellungen aus der Sittengeschichte Roms, i. 252. Girard, op. cit. p. 164.
[279] Supra, [i. 653 sq.]
[280] Maine, Ancient Law, p. 157 sqq.
[281] Lecky, Democracy and Liberty, ii. 536 sq. Cleveland, Woman under the English Law, p. 279 sqq. For the laws of other European countries see Bridel, op. cit. p. 61 sqq., and for the history of the subject see Gide. Étude sur la condition de la femme, passim.
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]
[282] Post, Grundriss der ethnol. Jurisprudenz, i. 370, 381. Holmberg, in Acta Soc. Scientiarum Fennicæ, iv. 330 sq. (Thlinkets). Kohler, ‘Recht der Marschallinsulaner,’ in Zeitschr. f. vergl. Rechtswiss. xiv. 428 sq. Volkens, op. cit. p. 249 (Wadshagga). Lang, in Steinmetz, Rechtsverhältnisse, p. 241 (Washambala).
[283] Nicole, in Steinmetz, Rechtsverhältnisse, p. 119 (Diakité-Sarracolese). Senfft, ibid. p. 442 (Marshall Islanders).