“Property,” according to Blackstone, “is the sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe.”
Orthodox jurisprudence, like orthodox religion, is characterized by the absoluteness of its formula. It ignores the genesis of its concepts in the long line of antecedent historical development, and it disdains to entertain the demand for modification, though the circumstances of the time loudly call for it.
“The sole and despotic dominion which one man claims and exercises,” etc., may be a fact, but it is not a right. Property can only be regarded as a right if shown to be subservient to the ethical end,—the maintenance and development of personality. Orthodox jurisprudence effaces the end, and treats that which is or has been at one time a means as if it possessed a sanctity of its own. On the other hand, the empirical treatment of jurisprudence, in dismissing the supposedly absolute means, tends to leave out of sight the ethical end, and to treat the social institutions as subservient to mere convenience.
The following propositions will indicate the changes in the conception of the right of property required by our ethical theory.
1. Property is a relation between a person or persons and things. There can be no property right in persons, but only in things.[55]
2. The right of property faces in two directions: Toward outside nature and toward fellow human beings. We have a right over the external things of nature. We have a right to the services, though not to the personality, of fellow human beings. These two aspects of the right of property must be kept apart and defined.
It is sometimes held that the human race as a whole, as over against nature, has the right of dominion. Nature, it is said, is our quarry, we can take out of it the stones we need to construct the edifice of civilization. Nature is our tool. The laws of nature, as science discovers them, become our servants. Nature offers the raw material which we consume. Nature has no rights as against man. But I hold that neither has man rights as against nature, except in so far as he rightly defines the end in the interest of which he makes use of nature—the maintenance and development of personality.
To suppose that the right of property as the extension of personality over things is tenable without regard to its instrumental use, to suppose that bare appropriation of nature as of “treasure trove” is a prerogative of man, is to lend countenance to the false notion of occupation, or first appropriation, which has confused the ethics of the subject in the literature of jurisprudence, and prevented a right understanding of it. If bare appropriation be the foundation, then the first comer has a right against his successors, since the extension of personality over the thing has been actually accomplished by him, and that is all there is to be said about it. Again, on this view, a case may be made out for vested interests, that is to say, for those who have successfully appropriated the earth, yes, and the fullness thereof, and who having thus effectually extended their personality over things without regard to the uses they make of their possessions, are then to be entitled to remain indefinitely in secure ownership of them.
Without an ethical standard, without the notion of an end to be subserved, stubborn possession will always be able to resist modification, and on the other hand attempts at modification will be haphazard. Neither the human species collectively nor the individual has a right simply to appropriate the things of the external world. Neither the first occupier nor the last is entitled to his goods unless he can make out a greater good in the interest of which he should be allowed to possess them.
But the case of primary occupation is academic. It occurs on Robinson Crusoe’s island and in legal fiction. Even when the white race invades Africa, it does not commonly take possession of unoccupied land, but dispossesses the natives. On what ground does it dispossess them? Is there an ethical standard by which the dealings of the civilized nations with the populations of Africa can be measured? Is the introduction of the appliances of modern civilization, the opening up to trade, a sufficient ground for the subjection or the extermination of the inhabitants? In this connection it becomes clear how urgent a more clarified conception of property rights is. False ideas of this so-called right are to no small extent responsible for the massacre of the inferior races, and the mutual slaughter of those who covet their lands. A proclamation of the Queen of England or of the Emperor of Germany, or the signature of an irresponsible chief to a treaty the meaning of which he scarcely understands, transfers millions of subjects and their territory to one or other of the European powers. What right of property have these European powers in the territory and the peoples acquired by them in this fashion?