54 ARGUMENT OF THE UNITED STATES. 



may extend, and that the fundamental formula by which the institution 

 is expressed is that every object of desire, of which the supply is limited, 

 must be owned. It is with this proposition that Blackstone closes his 

 chapter upon "Property in General." 



"Again, there are other things in which a permanent property may 

 subsist, not only as to the temporary use, but also the solid substance; 

 and which yet would frequently be found without a proprietor had not 

 the wisdom of the law provided a remedy to obviate this inconvenience. 

 Such are forests and other waste grounds, which were omitted to be 

 appropriated in the general distribution ot lands. Such also are 

 wrecks, estrays, and that species of wild animals which the arbitrary 

 constitutions of positive law have distinguished from the rest by the 

 well known appellation of game. With regard to these and some 

 others, as disturbances and quarrels would frequently arise among in- 

 dividuals, contending about the acquisition of this species of property 

 by first occupancy, the law has therefore wisely cut up the root of dis- 

 sension by vesting the things themselves in the sovereign of the State, 

 or else in his representatives appointed and authorized by him, being 

 usually the lords of manors. And thus the legislature of England has 

 universally promoted the grand ends of civil society, the peace and 

 security of individuals, by steadily pursuing that wise and orderly 

 maxim of assigning to everything capable of ownership a legal and deter- 

 minate otcner. m 



1 Sir Henry Maine, after tracing with bis wonted acuteness the course of the de- 

 velopment of the conception of property, also rinds that it finally results in the 

 proposition that everything must be owned. 



" It is only when the rights of property gained a sanction from long practical invio- 

 lability, and when the vast majority of objects of enjoyment have been subjected 

 to private ownership, that mere possession is allowed to invest the first possessor 

 with dominion over commodities in which no prior proprietorship has been asserted. 

 The sentiment in which this doctrine originated is absolutely irreconcilable with 

 that infrequency and uncertainty of proprietary rights which distinguish the begin- 

 ning of civilization. The true basis seems to be not an instinctive bias towards the 

 institution of property, but a presumption, arising out of the long continuance of that 

 institution, that everything ought to have an owner. When possession is taken of a 'res 

 nullius,' that is, of an object which is not, or has never, been reduced to dominion, 

 the possessor is permitted to become proprietor from a feeling that all valuable things 

 are naturally subjects as an exclusive enjoyment, and that in the given case there 

 is no one to invest with the rights of property except the occupant. The occupant, 

 in short, becomes the owner, because all things are presumed to be somebody's pro- 

 perty, and because no one can be pointed out as having a better right than he to the 

 proprietorship of this particular thing." (Ancient Law, Ch. vm, p. 249.) 



Lord Chancellor Chelmsford made the proposition that every thing must be owned 

 by some one, the ground of his decision in the House of Lords of the case of Blades v. 

 Higgs. (Law Journal Reports, N. S. 286, 288.) 



From Commentaries on the Constitutional Law of England. By George Bowyer, 

 D. C. L., 2d ed. London, 1840, p. 427: 



"III. The third primary right of the citizen is that of property, which consists in 

 the free use, enjoyment, and disposal of all that is his, without any control or dimi- 

 nution, save by the law of the land. The institution of property — that is to say, the 

 appropriation to particular persons and uses of things which were given by God to 

 all mankind — is of natural law. The reason of this is not difficult to discover, for 

 the increase of mankind must soon have rendered community of goods exceedingly 



