300 THE POPULAR SCIENCE MONTHLY. 



thus find to be pre-governmental, and whicli subordinate governmental 

 power when it is established, are those which recognize certain indi- 

 vidual 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, gen- 

 erally, 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 jorivate 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 Avithout 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." f But even without seeking proofs among the uncivilized, 

 sufficient proofs are furnished by early stages of the civilized. Ben- 

 tham 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 considei^ed 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 over- 

 ruling 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 govern- 

 ments 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 



* Schoolcraft, H. R., "Expedition to the Sources of the Mississippi River," v, lYT. 

 t Earl's "Kolff's Voyage of the Domga," p. 161. 



