[35] Gautama, xii. 39. Vasishtha, xvi. 16 sq. Laws of Manu, viii. 147 sq. See also Panchatantram, iii. p. 15; Benfey’s translation, vol. ii. 233.
[36] Brihaspati, ix. 7. Jolly, ‘Recht und Sitte,’ in Buehler, Grundriss der indo-arischen Philologie, ii. 92. For the rules of prescription in ancient India see also Jolly, p. 91 sqq., and Kohler, Altindisches Prozessrecht, p. 55 sq.
[37] Supra, [i. 637 sqq.]
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]
[38] Cf. Girard, op. cit. p. 316.
[39] Grotius, op. cit. ii. 3. 3.
[40] Spencer, Principles of Sociology, ii. 646. Idem, Principles of Ethics, ii. 98. Cf. Waitz, op. cit. i. 440 sq.
[41] Dalager, op. cit. p. 25.
[42] Nansen, First Crossing of Greenland, ii. 299.
[43] Munzinger, Die Sitten und das Recht der Bogos, p. 70. Lang, in Steinmetz, Rechtsverhältnisse, p. 264 (Washambala). von François, Nama und Damara, p. 175 (Herero).