Page:Popular Science Monthly Volume 25.djvu/312

300 thus find to be pre-governmental, and which subordinate governmental power when it is established, are those which recognize certain individual rights—rights to act in certain ways, and possess certain things. Even where the recognition of property is least developed, there is proprietorship of weapons, tools, and personal ornaments; and, generally, the recognition goes far beyond this. Among such North-American Indians as the Snakes, who are without government, there is private ownership of horses. By the Chippewayans, who have no regular government," game taken in private traps "is considered as private property." Kindred facts concerning huts, utensils, and other personal belongings, might be brought in evidence from accounts of the Ahts, the Comanches, the Esquimaux, and the Brazilian Indians. Among various uncivilized peoples, custom has established the claim to the crop grown on a cleared plot of land, though not to the land itself; and the Todas, who are wholly without political organization, make a like distinction between ownership of cattle and of land. Kolff's statement respecting "the peaceful Arafuras" well sums up the evidence. They "recognize the right of property in the fullest sense of the word, without there being any authority among them but the decisions of their elders according to the customs of their fore-fathers." But even without seeking proofs among the uncivilized, sufficient proofs are furnished by early stages of the civilized. Bentham and his followers seem to have forgotten that our own common law is mainly an embodiment of "the customs of the realm." It did but give definite shape to that which it found existing. Thus, the fact and the fiction are exactly opposite to what they allege. The fact is that property was well recognized before law existed; the fiction is that "property is the creation of law."

Considerations of another class might alone have led them to pause had they duly considered their meanings. Were it true, as alleged by Bentham, that Government fulfills its office "by creating rights which it confers on individuals"; then, the implication would be that there should be nothing approaching to uniformity in the rights conferred by different governments. In the absence of a determining cause overruling their decisions, the probabilities would be many to one against considerable correspondence among their decisions. But there is very great correspondence. Look where we may, we find that governments interdict the same kinds of aggressions; and, by implication, recognize the same kinds of claims. They habitually forbid homicide, theft, adultery: thus asserting that citizens may not be trespassed against in certain ways. And as society advances, minor individual claims are protected by giving remedies for breach of contract, libel, false witness, etc. In a word, comparisons show that though codes of law differ in their details as they become elaborated, they agree in