Page:Popular Science Monthly Volume 11.djvu/152

140 and death; which implies that though he possesses the greater right of owning subordinate individuals absolutely, he does not possess the smaller right of owning absolutely the property used by them and himself. I may add that besides being difficult to frame, this conception is not easily reconcilable with Sir Henry Maine's description of the patria potestas of the Romans, which he says is "our type of the primeval paternal authority," and of which he remarks that while, during its decline, the father's power over the son's person became nominal, his "rights over the son's property were always exercised without scruple." And I may also name its seeming incongruity with the fact that political rulers who have absolute powers of life and death over their subjects, are usually also regarded as in theory owners of their property: instance at the present time the kings of Dahomey, Ashantee, Congo, Cayor on the Gold Coast. Passing to the essential question, however, I find myself here at issue not with Sir Henry Maine only, but also with those writers on primitive social states who hold that all ownership is originally tribal, that family ownership comes afterward, and individual ownership last. As already implied, the evidence appears to me to show that from the beginning there has been individual ownership of all such things as could without difficulty be appropriated. True though it is that in early stages rights of property have not acquired definiteness; certain though it may be that among primitive men the moral sanction which property equitably obtained has among ourselves is lacking; obvious as we find it that possession is often established by right of the strongest—the evidence implies that in the rudest communities there is a private holding of useful movables maintained by each man to the best of his ability. A personal monopoly extends itself to such things as can readily be monopolized—a proprietorship not yet made definite by the growth of social regulations. The Tinné, who, "regarding all property, including wives, as belonging to the strongest," show us in a typical way the primitive form of appropriation, also show us that this appropriation is completely personal, since they "burn with the deceased all his effects." Indeed, even apart from evidence, it seems to me an inadmissible supposition that in "the infancy of society" the egoistic savage, utterly without idea of justice or sense of responsibility, consciously held his belongings on behalf of those depending upon him.

One more element, indirectly if not directly involved in the doctrine of Sir Henry Maine, is that "the infancy of society" is characterized by the perpetual tutelage of women. While each male descendant has a capacity "to become himself the head of a new family and the root of a new set of parental powers," "a woman of course has no capacity of the kind, and no title accordingly to the liberation which it confers. There is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the family for life."