THE LAW OF LITERATURE. I INTRODUCTORY. NTELLECTUAL Property—that is, the propery existing in Thought, Expression, Sentiment and Language,-in like manner with all other sorts and kinds of property, must find its origin in Natural Law. As to what is Natural Law, learned men have differed widely. Some have defined it to be the primal will of the Creator,' while others claim that it is nothing more than the tacit consent of mankind." But as to its being the source of this right of property for which we are seeking, all appear to be finally agreed. 2. Property may be defined as anything which is not common to all mankind: which belongs to a less number of individuals than the whole human family, and which may be transmitted and set over at will by its owner or owners, to others, who would, in their turn, become its owners and possessors. 3. This property may exist in whatever is CAPABLE OF OCCUPATION; the surface of the globe, and everything upon it which it is possible to occupy, is, therefore, a 1 2 Kent Com. 320. 2 Grotius Droit de la Guerre (ed. Basle, 1846), liv. 2, ch. 2, 10, tom. I. Puffendorf, i. 404; Vat. i. 1. egitimate subject of property. That surface itself, consisting of solid earth, or rock, or mould, or shifting sands, may be divided up into parcels and become the property of individuals, together with such sheets or portions of water as are included in the boundaries. thereof. But the ocean cannot be occupied. No boundaries other than its own can ever be given to it. No limits or marks of proprietorship can ever be fixed or impressed upon its surface. Neither are the air, or the light, or the warmth of the sun, capable of occupation (although the right to enjoy them by means of windows or apertures is often the subject of municipal or personal right or license, just as human life and liberty itself, is sometimes taken or restrained by the law of the land or the policy of States); and so the ocean, the air, the light, the warmth of the sun, can never be the subjects of property. 4. Up to this point, a definition of property has not been either difficult or obscure. When we encounter, however, a claim to a property in ideas, and sentiments, and expressions, clothed in language,(which appears to be as much the common highway of the thoughts, as the ocean is the common highway of the commerce of nations),-it is necessary to pause and inquire whether that claim can be established under the rule that we have laid down. If it can be, then the right of Literary Property can be easily demonstrated. If it cannot be, then the right must fall. "Occupancy," says Blackstone,' "is the taking possession of those things which before belonged to nobody. This is the true ground and foundation of all property, . . . . of holding those things in severCom. ii. 257 1 |