of property, with all its juridical characters, transmissibility, perpetuity, inviolability. The greater number of writers have embraced this opinion; we have seen it explicitly taught by d'Héricourt, Diderot, Linguet, Voltaire, and the advocate-general Séguier; and it has been advanced by a hundred others. The expression literary property has entered into the language, and the adoption of these words, which have prevailed in use, indicates the popularity of the opinion which they express. This opinion has finally prevailed to such a degree, that the compilers of the laws, limiting the exercise of the rights of authors to a specified period, have considered it a duty to commence by declaring, that, of all kinds of property, this is the most sacred, the most legitimate, the most impregnable.

This theory has been applied by positive legislation in France, in the regulations of 1777, and in the law of March 18, 1806, concerning designs for manufactures. In England, the jurisprudence has declared that a perpetual property existed in virtue of the common law, before it was restrained by legislative acts. The perpetual property existed in Holland from 1796 to 1811, and from 1814 to 1817.

The system of a temporary right has enjoyed but little favor among the writers; but, on the other hand, it has greatly prevailed in legislation. It is the general right of all nations; it is that of France, in all her laws, ancient and modern, with the exception of the two above mentioned. It is upon this basis, also, that all the modern laws relative to patents for inventions are founded.

If the question were to be decided by authority, I do not hesitate to say, that the universal practice of enlightened nations ought to be of much greater weight than the agreement of the theorists, even if they were unanimous.

It is a singularity worthy of remark, that a practice prevails, without exception, which attacks the received ideas,

which is at variance with the established language, and which shocks the favorite thesis adopted and defended by almost all the writers. There certainly must be, on one side or the other, a prejudice to be rooted up, a dominant error to be destroyed.

The theory of a temporary right is not, like that of a literary property, readily expressed in a single word; it embraces complex ideas; it demands exposition and development. Already, in my treatise on patents for inventions, I have attempted a demonstration which I am now going to resume and complete, by endeavoring to refute or obviate the principal objections, to which it has appeared to me to have given rise. At this period, I was not acquainted with the dissertation of Kant, on this subject. I do not adopt all the developments or all the consequences of that dissertation; and I agree, that, proposing especially to found and to define the right of publishers, he has not explicitly resolved the question which now occupies our attention. But he has at least established it as a principle, that a book is nothing more than the use of the powers and faculties of the author, or an instrument by the aid of which he addresses himself in language to the public. I hope to demonstrate afterwards, that consequences flow from this fundamental principle, which are irreconcilable with the thesis of a perpetual property.

It has frequently happened to me, in the discussion of this question, to meet with partisans of the right of property who were disposed to hold it very cheap; and, who, provided one consented not to deny the right, were ready to abandon all the consequences of it, and to restrain its effects to those of a property purely temporary. This seems to have been the case also in all the legislative discussions on this subject. That expedients of this kind might be resorted to, in the practical management of affairs, for the purpose of cutting short or evading a discussion, is conceivable; but when we

are called upon to decide a philosophical problem, we must go to our task with more resolution. The pretended solution, which consists in acknowledging the property only to convert it immediately into a right purely temporary, is a mere subterfuge. I shall hereafter demonstrate, that the essential principles of property are opposed to such an adjustment. It is because the discussion of fundamental principles has been eluded, that the questions remain confused; that the laws, drawn up without method and unity, lend themselves to all forms of argument; that the jurisprudence floats without a compass. Investigations of this kind are not idle. The study of legislation would be incomplete, if we should content ourselves with copying the texts which it might bring together, or even with determining the results which it might be useful for it to obtain; and something will be wanting to the satisfaction of the understanding, as well as to the logical certainty of the reasoning, if we neglect to go back to principles, and afterwards to follow them out in their results.

The reproduction of works of mind is not an object of property.

In order to ascertain whether there is such a thing as literary property, or, on the contrary, whether authors do not derive their right to receive a price for their labors from a different title from that of proprietors, it is indispensable, in the first place, to consider the nature and characteristics of property in general.

It is undertaking a formidable analysis, to attempt to show clearly the grounds upon which the great right of property, one of the chief supports of the social edifice, is founded. There is no higher or more arduous question in the philosophy of law.

That intelligence has the empire over things,-that man

is the lawful master of non-intelligent nature, delivered to him for his use,-is a truth too evident to be contested.

That the world has been given, not to one or to several men, but to the human race; that sociality is a law of our physical, intellectual, and moral organization; that the state of society, a necessary state, has created for men an order of duties, which they are essentially constituted to comprehend, and the care of which is confided to each individual conscience, even before it is assumed by positive laws; that, in the first rank of these duties, is placed that of respecting in our fellow-men, personality, reason, liberty, holy in them as in ourselves; that from thence results a moral limit to our empire over material nature, a limit which consists in a respect for the rights of others, in an obligation not to attempt to appropriate to our own use those portions of matter already appropriated by one of our fellow men: these are propositions, which philosophy has so well demonstrated, that it is quite unnecessary for us to stop to establish them by proof; they are acquired to science, which has a right to hold them as proved, and to take them for a point of departure.

These fundamental principles are not sufficient of themselves to establish and justify the origin and the conditions of this right.

Property, as it is defined by usage and universal consent, is an entire and absolute right over things, which is acquired by first occupation, by exchange (a contract which includes that of sale), by donation, by natural successions, regulated by the will of the law, and by testamentary successions regulated by the will of the individual.

The complete power of the proprietor,—the inviolability of his exclusive right,-the perpetuity of this right by the complete transmission of it from one to another ;-these are the characteristics which the habits of the human race recogVOL. XXII.-NO. XLIII.

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nise in property, and upon which the respect it receives is founded.

The right of property has had its adversaries; for one of the proofs of liberty, which the human mind has always given, has been to revolt against the best-accepted truths. Some have demanded a new social organization, founded upon a coöperation of all labors, and a community of all goods; others, acknowledging labor as the only lawful source of possession, have attacked hereditary transmissions, and the payment of rents to proprietors, who do not occupy or cultivate their estates themselves. It would belong to a supreme power only, to assign to each his share in the distribution of material things, according to the capacity or the utility of individuals and for the greatest general good.

I shall not trouble myself with a refutation of these paradoxes; not that they do not involve social problems of a high interest, or that the discussion of them might not lead to the establishment of important truths; but it is necessary to know how to set bounds to our inquiry, and to avoid the temptation of proving every thing and of saying every thing. I declare, therefore, that I take for my point of departure the common belief of the human race in the right of property. In another place, I shall set forth how and why I fully accept the wisdom and the truth of this general belief.

Not only do I believe in the right of property; but I am one of those who think that its establishment rests upon a necessary and natural right. I shall mention the reasons why I do not accept the opinion, which would reduce property to a mere creation of civil right, resulting from variable conventions, established by positive laws with a view to the greatest social utility.

The numerous partisans of this last opinion consider property to be lawful because it is useful; for, according to them, utility is the root of all right; one positive law has