ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 161 



self an advantage by the commission of a wrong; and it must therefore 

 be the property of the owner of the soil. That was the conclusion of 

 the court — quite contrary to what the rule of the civil law would be in 

 the same case; but I cite it for the purpose of showing that this doc- 

 trine upon which I am insisting, that the necessities of society require, 

 and always have required, that everything should have a determinate 

 owner, is one which is everywhere received, and even so far received 

 as to be made the foundation of judicial decision. 



[The Tribunal thereupon took a recess.] 



The Tribunal. Upon resuming. 



Mr. Carter said : In the inquiry as to the origin of the institution 

 of property, I had reached the conclusion that the original basis of it 

 was the necessity of peace and order, which is of course an absolute 

 requisite of human society. And therefore the institution of property 

 is coeval with the existence of human society upon the earth. That 

 institution stands upon the immutable basis of necessity ; and, to employ 

 the language of Blackstone, I may say that "necessity begat property." 

 Necessity requires that everything capable of being property must be 

 assigned to some legal and determinate owner. If tnat is done peace 

 is secured; if that is not done, there is strife and warfare in society, 

 and society can no longer exist. But what is capable of being propcriyf 

 All things are not thus capable; and we must, therefore, clearly under- 

 stand the requisites which enable anything to be the subject of property. 

 Now, there are three things necessary in order that property may subsist 

 in anything; first, the thing, in order to be a subject of property, must 

 be a7i object of human desire; that is to say, it must have a recognized 

 utility. Property cannot exist in noxious animals, such as reptiles, or 

 in weeds. A thing that is not an object of human desire cannot be 

 property. Nobody wants such things, and what nobody wants nobody 

 will seek to appropriate to himself. In the second place, the thing 

 must be limited in supply; there must not be enough for all. It must 

 be exhaustible. Therefore, there cannot be any property in the air, in 

 the sunlight, in running water, or things of that sort. They exist to 

 an infinite extent, and there is abundance to satisfy the wants of every- 

 one, and there can be no contention respecting the ownership of such 

 things. Then, thirdly, the thing must be susceptible of exclusive appro- 

 priation. Take animals called game, for instance. There is no ques- 

 tion as to their utility. There is not enough for all; yet they cannot 

 be made the subjects of exclusive appropriation ; no man can take them 

 and hold them. If one should attempt to do it to-day, they would 

 escape to-morrow, and he could not recapture or identify the fugitives. 

 The three fundamental conditions of property are, therefore, first, that 

 the subject of it should be useful; second, that it should be limited in 

 supply; and, third, that it should be capable of exclusive appropriation. 

 These are deductions of reason from the admitted facts of man's nature, 

 and from the circumstances in which he is placed ; but they will be 

 found at once confirmed upon appeal to experience. We cannot now 

 find, we could not find, in any stage of civilized human society, any- 

 thing embracing these three conditions — utility, exhaustibility, and 

 capacity of exclusive appropriation — which is not regarded as the 

 determinate property of some individual or corporation. 



Now this is true not only of property as between individuals, but also 

 of property as between nations; for the same necessity of peace and 

 order exists in the larger society of nations as in the smaller municipal 

 societies of the world. The larger society of nations cannot exist in 

 comfort unless there is established the means of putting an end to strife 

 B S, PT XII 11 



