160 ORAL ARGUMENT OF JAMES C. CARTER, EhQ. 



and that necessity requires that property be carried to this extent: 

 that every object of desire, the supply of tchich is limited, must he owiied 

 by somebody. When you have that state of things, you have peace, 

 and until that state of things is established, you cannot have peace. 

 Therefore we find that everywhere where men are formed into human 

 societies, a determinate owner is assigned to every object of human 

 desire, the supply of which is limited. Those views are well expressed 

 in the early part of Blackstone\s Coinmentarics on the Law of England. 

 He has a very elegant chapter, to which I would refer the particular 

 attention of tlie members of the Tribunal. I shall read here only an 

 extract from it, on page 54, of our printed Argument. He says: 



Again, there are other things in which a permanent property may subsist, not only 

 as to the teni]>orary nse, hnt also the solid substance; and which yet would fre- 

 quently be found Avithout a ])ropvietor had not the wisdom of the law provided a 

 remedy to obviate this inconvenience. Such are foi'ests and other waste grounds, 

 which were omitted to be appropriated in the general distribution of lauds. Such 

 also are wrecks, estrays, and that species of wild animals which the arbitrary con- 

 stitutions of positive law have distinguished from the rest by the well known appel- 

 latiou of game. With regard to these and some others, as disturbances and quarrels 

 ■v\M)uld frequently arise among individuals, contending al)out the acquisition of this 

 species of property by first occupancy, the law has therefore wisely cut up the root 

 of dissension 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 ivise and orderly maxim of assigning to enrgthing cajjable of ownership a legal and 

 determinate owner. 



Sir Henry Maine has also made an allusion to this doctrine, which 

 is well worthy of consideration. He speaks of this rule of assigning 

 a determinate owner to everything capable of ownership, not simply 

 as an original feature in human society, but one which from the long 

 habitudes of society comes to be regarded as essential by every one. 

 He says: 



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 connuodities in which no prior proprietorship has been asserted. 

 The sentiment in which this doctrine originated is absolutely irreconcilable with 

 that infreqnency and uncertainty of proprietary rights which distinguisli 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 erergtlring ought to hare 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 of an exclusive enjoyment, and that in the 

 given case there is no one to invest with the rights of jirojierty except the occupant. 

 The occupant, in short, becomes the owner, because all things are presumed to be 

 somebody's property, and because no one can be pointed out as having a better right 

 than he to the proi)rietorship of this jtarticular tiling. (Ancient Law, Oh. viil, p. 249.) 



And Lord Chancellor Chelmsford made use of the same doctrine in 

 rendering the decision of the House of Lords in the case, v^ery familiar 

 to my friends on the otlier side, doubtless, of Blades v. Higgs. That 

 was a case where a trespasser entered the grounds of another where he 

 had no right, and killed some game there; and the question was, to 

 whom the game Ijelongcd, whether to tlie trespasser, or to the owner of 

 the property. The judgment of Lord Chancellor Chelmsford proceeded 

 along this line: he says, everything that is capable of ownership must 

 be owned by somebody, and therefore in this case, this dead game must 

 be owned either by the* man who killed it, the trespasser, or by the man 

 upon whose ground it Avas killed. He s;iys it cntinot be th!> jtroporty 

 of the trcsx^asser, for a man cannot be pcimittcd to work out for him- 



