ORAL ARGUMENT OF JAMES C. CARTER, ESQ. • 213 



In the first place, we must have a very clear perception of what is 

 meant by the term ^'■exclusive appropriidion''''. What is it that must be 

 done in order that a thing may be exclusively appropriated? Is it neces- 

 sary that the thing should be actually in vianu, as it were — in the actual 

 possession of the owner so that no person can take it from him without 

 an exercise of force? Is that necessary, or is something short of that 

 sufficient? In the early ages of society that seems to have been 

 necessary; amd possession and oicnersJiip were in those early ages iden- 

 tical, or rather they were confounded. There were no recognized rights 

 of i)roperty, except in respect to such property as the owner was in the 

 actual possession of. The skins upon the back of the hunter, the bow 

 and arrow which he used in the chase, and the hut, or the cave, which 

 he inhabited, were all in his actual possession, or under his immediate 

 power. They could not be taken from him without an act of force. He 

 was always present. to defend them; and there were no other subjects 

 of property. But we see that as the institution of property is developed 

 his actual, immediate possession is no longer necessary. A man may 

 own not only the half acre of ground which he tills, and which he can 

 immediately defend, but he may own a hundred thousand acres by as 

 perfect a title as he can own the half acre; and in reference to all per- 

 sonal property, the extent of the ownership which is permitted to him 

 is unlimited. He may not actually possess it. He may not be present 

 to defend it; and yet the law stamps his personaMtj/ upon it so tliat it 

 becomes his property, a part of him, an extension of his personality to 

 that portion of the material .world, so that when that thing which he 

 thus owns is invaded his rights are touched, and his personality is 

 touched. Here we see the difference between the two concei)tions of 

 possession and oumcrsMp, originally closely identitied, inseparable from 

 each other, as it were, confounded together; but with the i^rogress of 

 society and the development of the institution of i^roperty, separated, 

 and the conception of ownership, as distinct from the necessity of 

 possession, fully recognized. 



I have numerous authorities to support these observations, but I 

 must avoid reading many of them because it takes so much time. But 

 I may read one or two that are quite significant. I read from page 82 

 of the printed Argument of the United States an extract from the writ- 

 ings of a very distinguished English jurist and writer upon general juris- 

 prudence — Mr. Sheldon Amos. He touches upon this subject: 



The fact, or institution, of ownership is snch an indispensable condition to any 

 material or social progress that, even thronghout the period during wliich the atten- 

 tion of law is couceutiated upon family and villnge ownership, the ownership on 

 the part of individual persons, of those things which are needed for the sustenance 

 of physical life, becomes increasingly recognized as a possibility or necessity. One 

 of the most important steps out of savagery into civilization is marked by the fact 

 that the security of tenure depends upon some further condition than the mere cir- 

 cumstance of possession. 



The use of the products of the earth, and still more, the manufacture of them into 

 novel substances, consists, generally, of continuous processes extending over a 

 length of time during which the watchful attention of the worker can only be inter- 

 mittently fixed upon all the several points and stages. The methods of agriculture 

 and grazing, as well as the simplest ap])]ications of the principle of division of labor, 

 similarly presuppose the repeated absence of the farmer or mechanic from one part 

 of his work, while he is bestowing undistracted toil upon another part ; or else entire 

 absorption in one class of work, coupled with a steady I'eiiance that another class of 

 work, of equal importance to himself, is the object of corresponding exertion on the 

 part of others. 



In all these cases the mere fact of physical holding or jyossession, in the narrowest 

 sense, is no tcbt whatever of the interests or claims of persons in the things by which 

 they are surrounded. 



