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learning have pursued different paths, and no theory has been constructed which meets with universal acceptance. But all the speculations of philosophers, from the time of Aristotle to the present age, have sprung from and again conducted to one fact — the existence of property itself; and while its existence has been variously accounted for, the different explanations of its origin have all tended to show, that there are certain great characteristics which mankind have universally attributed to the right thus found to exist, and certain great principles of justice by which they have found that it must be regulated. To these principles and characteristics we must look for a test, in order to answer the question - most material in the present discussion - What constitutes property? Having satisfied ourselves on this head, we shall be able to say whether any supposed subject of the right possesses the general attributes of property, and whether it is agreeable to justice and fitness that it should be so recognized.

It is very generally conceded, that property, under the modifications and conditions with which we now have it, supposes the consent of mankind, and that those modifications and conditions do not spring from individual will alone. It follows, therefore, that the

Grotius, Droit de La Guerre, &c. liv. 2, ch. 2, § 10, tom. 1, (ed. Basle, 1746.) Rutherforth's Institutes, B. 1, c. 3. The consent of mankind does not indeed establish the principles on which property depends. Men cannot abolish those

principles, and consequently they cannot abolish property, strictly and entirely. The Creator has made man a social being, and has made it necessary, for the development of his faculties and to accomplish the ends of his being, that he should

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 form of property is essential to the existence of society; and through this chain of reasoning, property is to be traced, as to one of its main supports, to the will of the Creator. In addition to this, he has implanted in the human breast certain principles of justice which will not permit the violation of the essential rights

of property, and has thus fortified its existence by the operations of conscience. At the same time, the general consent of mankind is rightly supposed to indicate the main qualities of property, because it actually exists according to the modifications and conditions which that consent has established.

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. He may 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 use. 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

1 Grotius Droit de la Guerre, &c. Mar. De l'Europe, tom. 1, ch. 1, Liv. 2, ch. 2, § 3. Azuni, Droit § 5, 25.

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