Of the incapacity of children, wives, and slaves to acquire property for themselves little needs to be said, in the present connection, by way of explanation. Their exclusion from the right of independent ownership is an incident of their subjection to their parents, husbands, or masters. But we must remember that, whilst the latter have a right to dispose of the earnings of their subordinates, they also have the duty of supporting them, and that in early civilisation the child and the wife, sometimes even the slave,[144] are practically, as it were, joint owners of goods which in theory belong to the head of the family alone.
[144] Volkens, op. cit. p. 249 (Wadshagga).
We have still to explain the variations of moral judgments with regard to different acts of theft. That the condemnation of the offence varies in degree according to the value of the stolen goods follows from the fact that theft is disapproved of on account of the injury done to the owner. But in many cases, when the injury is very slight, the appropriation of another person’s property is justified by the needs of him who took it. And frequently, also, the condemnation of the thief is more concerned with his encroachment upon a neighbour’s right than with measuring the exact amount of harm inflicted. Among the Basutos, says Casalis, “the idea of theft is expressed by a generic word which refers to the violation of right, much more than to the damage caused.”[145] Burglary is regarded as an aggravated form of theft partly because it adds a fresh offence, the illicit entering into another person’s house, to that against property, partly because it proves great premeditation in the offender.[146] Robbery is likewise a double offence, implying, as it does, an act of violence, and may on that account be more severely censured than ordinary theft; but in other cases the courage and strength displayed by the robber is looked upon as a mitigating circumstance, and sometimes substitutes admiration for disapproval, whereas the secret offender is despised as a coward. So, too, the secrecy of nocturnal theft may aggravate the crime, whilst at the same time the difficulty in providing against it may induce society to increase the punishment. But men are apt to admire not only bravery and force, but also dexterity and pluck, hence the appreciation of adroit theft. The same tendency in some measure accounts for the distinction between manifest and non-manifest theft; but here we have in the first place to remember that strong emotions are more easily aroused by the sight of an act than by the mere knowledge of its commission.[147] That the moral valuation of theft varies according to the station of the thief and the person robbed is due to the same causes as are similar variations with regard to other injuries; and so is the distinction between offences against the property of a tribesman or fellow-countryman and offences against the property of a stranger. The theory of the Roman jurists according to which the property of an enemy in war belongs to nobody as long as the hostilities last, and therefore becomes the property of the captor by the right of occupation,[148] is only a play with words intended to give a reasonable justification to a practice which is really due to lack of regard for the feelings of strangers. When men at an early stage of civilisation respect a stranger’s property the motive is undoubtedly in the main prudential. Savages may be anxious to prevent theft from a neighbouring tribe in order to avoid disagreeable consequences.[149] And I venture to think that the honesty they often display with regard to objects belonging to strangers who visit them, and especially with regard to things left in their charge,[150] largely springs from superstitious fear. We have noticed before that even the acceptance of gifts is supposed to be connected with supernatural danger, owing to the baneful magic energy with which the gift is suspected to be saturated.[151] Would not the same apply to the illicit appropriation of a stranger’s belongings, and especially to trusts, which naturally call for great precaution on the part of the owner? This leads us to a subject of considerable importance in the history of property, namely, the influence which magic and religious beliefs have exercised on the regard for proprietary rights.
[145] Casalis, Basutos, p. 304.
[146] Cf. Wilda, op. cit. p. 878 (ancient Teutons).
[148] Hunter, Roman Law, p. 257. Puchta, op. cit. ii. 220.
[149] Sproat, Scenes and Studies of Savage Life, p. 159 (Ahts). Scott Robertson, Káfirs of the Hindu-Kush, p. 440.
[150] See, besides statements referred to above, Lumholtz, Unknown Mexico, i. 420, and ii. 477; Nordenskiöld, Vegas färd kring Asien och Europa, ii. 140 sq. (Chukchi); Worcester, Philippine Islands, p. 413 (Mangyans); Colenso, op. cit. p. 43 (Maoris); Macdonald, Light in Africa, p. 212 (Bantu); Campbell, Travels in South Africa, p. 517, and Leslie, Among the Zulus and Amatongas, p. 201 (Kafirs).
[151] Supra, [i. 593 sq.]