[44] Kingsley, West African Studies, p. 366.
[45] Bourke, Snake-dance of the Moquis, p. 260 sq.
[46] Kloss, In the Andamans and Nicobars, p. 240.
[47] Gautama, x. 42. Laws of Manu, x. 115.
[48] Nârada, xi. 32 sq.
[49] Colenso, op. cit. p. 31 (Maoris). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 25 (Bakwiri). Lang, ibid. p. 264 (Washambala). Munzinger, Die Sitten und das Recht der Bogos, p. 69. Hanoteau and Letourneux, La Kabylie, ii. 230; Kobelt, Reiseerinnerungen aus Algerien und Tunis, p. 293 (Kabyles of Jurjura). Hyde Clarke, in Jour. Anthr. Inst. xix. 199 sqq. Post, Afrikanische Jurisprudenz, ii. 172. Schurtz, in Zeitschr. f. Socialwissenschaft, iii. 250 sq.
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.
[50] Post, Entwicklungsgeschichte des Familienrechts, p. 286 sqq. Avebury, Origin of Civilisation, p. 483 sq.
[51] Post, Grundriss der ethnol. Jurisprudenz, ii. 200 sqq. Idem, Afrikanische Jurisprudenz, ii. 19.
[52] Sarbah, op. cit. p. 85.