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essential qualities of property must be those conditions which mankind have generally agreed in attributing to it.
1. First, then, the definition of property, on which mankind are agreed, is, that it embraces what is not common to the whole race, but belongs to a less number than the whole human family, whether one or more individuals. In a community of goods, among the whole race, or a nation, or a smaller collection of individuals, the right to use is in each individual, in the place of property ; but property in the goods continues, and this property itself is in the whole body. As soon, however, as property with reference to individuals is established, something more than the right to use follows. An exclusive title, which embraces the right to use and the right to exclude all others both from use and possession, and the right to transmit both use and possession to others, constitutes property, in the sense in which all mankind are agreed, implying the total separation of the object itself from a community of goods.
2. In the second place, all property possesses two uses, or qualities. First, it implies the right of pos
live in some form of society. Some of property, and has thus fortified form of property is essential to the its existence by the operations of existence of society; and through conscience. At the same time, the this chain of reasoning, property is general consent of mankind is rightto be traced, as to one of its main ly supposed to indicate the main supports, to the will of the Creator. qualities of property, because it acIn addition to this, he has implanted tually exists according to the modiin the human breast certain princi- fications and conditions which that ples of justice which will not permit consent has established. the violation of the essential rights
session and use ; which constitutes a part of the ownership, or appropriation of the individual. This right of possession and use is full and exclusive. The object may be enjoyed by the individual in any mode consistent with the general welfare ; a limitation which does not arise from any inherent defect in the right itself, but is imposed upon it from without. Secondly, property implies the faculty of transmission, by exchange, or sale, or gift. Transmission, if unrestrained, carries with it the full and exclusive right of possession and use of the original owner, indefinitely, so that the object remains forever separated from a community of goods. But, as the original owner may grant the whole unrestricted right of possession and use, so it follows that he
may grant a less right than he himself enjoyed, by restricting or qualifying the use. Не
thus specify the uses for which he does or does not grant the possession, and may annex various conditions upon which the possession shall be held. The observance of these conditions is to be enforced by the same principles of justice which govern the whole title of the original owner. If he has granted only a part of his right, and the other part is usurped, the same principle of justice is violated, as when his whole right is usurped without his having granted
any part of it.
3. In the third place, property may be in everything capable of these uses. Whatever admits of occupancy and of the transmission of occupancy may be the subject of property. Whatever, on the contrary, does not admit of occupancy, and is not capable of being transferred with an exclusive title to others, cannot be the subject of property. Thus, light and air cannot of themselves be appropriated by individuals to the exclusion of the rest of mankind, because they cannot be included within limits and held and possessed in severalty. Each human being may use all of them that he requires for his own purposes, without exhausting the common stock, which is inexhaustible. In like manner, no man can sell or transfer to another the air or the light, because he cannot first obtain the exclusive occupancy thereof. One may sell or transfer peculiar advantages or positions for the enjoyment of all that portion of the air or the light, which one or more human beings can draw from the common stock, in actual
But this creates no opportunity to occupy the great body of the air or the light, which are in themselves incapable of being held within limits or boundaries, or parcelled out into different proprietaries.
The same is true of the ocean. The great reasons why the ocean cannot be the subject of property form one of the most interesting topics in the law of nations, into which it would be too great a digression to enter here. It is sufficient to note the illustrations which they present of the qualities which belong to the subjects of property. The ocean cannot be occupied; for although astronomers and geographers have traced imaginary circles of latitude and
longitude, which theoretically divide its surface, nothing like actual occupation by boundaries or barriers has ever been attempted or can ever be possible. No part of the ocean can be taken and held in severalty, because no part of it can be designated as under occupation, by any limits or marks capable of being fixed upon its surface. Every nation and every individual may use it, as occasion requires, and such use in no degree diminishes or restrains the use of it by others, since the same waves will successively and forever transport the fleets of the whole world. Accordingly, there is no evidence that mankind have at any period entertained the intention of making the ocean the subject of property. It has ever been left as the common highway of nations, in and upon which the rights of all mankind, from the necessity of the case, are perfectly equal.'
On the other hand, the surface of the earth, and everything upon or beneath it, and everything upon or beneath the surface of the water, capable of being reduced into exclusive possession, may be the subject of property; and the exclusive possession carries with it the faculty of transmitting the whole of the same right, or a part of it, and of dictating in what manner and under what restrictions the subject of the right shall be used. In a refined state of civilization, these subordinate rights become themselves objects of distinct consideration, and are
Grotius Droit de la Guerre, &c. Mar. De l'Europe, tom. 1, ch. 1, Liv. 2, ch. 2, Ø 3. Azuni, Droit § 5, 25.
made capable of distinct enjoyment, defined by positive rules, or defended by the general principles of justice. The right to pass over the soil, or to gather a definite portion of the fruit that grows upon it, may be severed from the ownership of the soil itself; and the grant of these subordinate rights does not necessarily suppose a grant of the proprietorship of the soil, or of any other of the rights of the original proprietor. The use of an animal, for a fixed period or in a certain manner, may be separated from the ownership of the animal, and a contract for the one does not imply a contract for the other.
We are to inquire, then, whether the claim of authors to the exclusive multiplication and sale of copies of their own literary productions can be brought within the fair scope of these principles. In determining this question, it is obviously necessary to define the right claimed, and to ascertain its essential character.
The right claimed by an author, after publication, is not to the exclusive possession or appropriation, intellectually, of the ideas and sentiments which he originates and puts upon paper. In the first place, such an appropriation becomes impossible, as soon as he imparts to others the means of an intellectual perception of his ideas; and in the next place, it is inconsistent with the very objects for which he publishes to others the conceptions of his own mind. Such an appropriation is impossible, because if I am permitted to read the ideas and sentiments which