PROPERTY, Laws of. Anything, whether tangible or intangible, which can be reduced to possession or made the subject of ownership, comes within the legal definition of property. The sea, the waters of rivers and the atmos phere enveloping the earth are for the common use of all men and can become the exclusive possession of no individual; wherefore they are not designable as property. But a thing may be property and subject to ownership without be ing the physical possession of the owner. With respect to intangible objects physical possession is impossible. One may own land without be ing in occupation thereof either personally or by representation; but a copyright is not a thing that one can put in a wallet and carry around on his walks. Here are two objects of owner ship, one intangible and the other the most concrete of earthly things, in the case of which the fact of proprietorship may be, and in the latter instance must necessarily be, merely a matter of record. Some things are loosely spoken of as property which are not really objects of ownership in a legal has a right to his good name, but he does not gown,)) though colloquially speaking he may be of it. The capability of being trans ferred is the quintessence of property. One cannot transfer his personal reputation to an other, but good will, patent rights and many other intangibles are property because they may be bartered and sold like goods and chattels, But ownership implies not only the transfer ability of the thing owned, but also the possi bility of transferring the same. If a man were alone in the world he could call nothing says Kant. The relation of owner ship is not a relation between the man and the thing but between him and other men, whom he excludes from, and to whom he gives, pos session. Property is an right and where there are no people to exclude, the right cannot exist.
Primitive Law.-- In early society one should not expect precise conceptions of pro prietory and other legal rights to be prevalent.
Nothing is further from the truth than the theory of the *Law of Nature* that the insti tution of property is the result of a social con tract, whereby each individual surrendered a part of his liberty — meaning the privilege of whatsoever he pleased— in consideration of being secured in the remainder of his rights, including the possession of his belongings. In the ((state of nature') the legal conception of ownership is absent and possession is merely a fact, not a right. Primitive man took unto himself everything within his ability to take and kept all he was capable of defending. Man kind was ruled by the might of the strong. Even in a relatively advanced stage of civili zation the possessor was expected to protect his own by force. When an early Englishman had slain another while resisting dispossession by an intruder, the question to be determined in any ensuing lawsuit would not be whether vio lence in the defense of possession was justified, but whether the defender should pay a penalty, and if so, how much, for killing the trespasser. Under nearly all early laws larceny is punish able with death and the injured person is per mitted to inflict the penalty on a manifest thief. These rules of self-protection are very differ ent from legal prescriptions or constitutional guaranties — and there is in the latter not a trace of their derivation from a primordial social contract. On the contrary, the primitive conceptions of property conform in a crude way with those of 19th century utilitarianism.
Everything that an individual could acquire and successfully defend (in the savage state by brute strength, in the condition of individual istic materialism by power of law) was re garded as absolutely his own and disposable at his volition.
Between these two poles of extreme indi vidualism there lie social ideals of many de grees, varying longitudinally in point of time and latitudinally according to the stage of civil ization attained by those who hold them. The periods of historic time and social progression do not synchronize, so that the greatest diver sity of property laws may coexist in different parts of the world. The salient sociological fact, however, is that the institution of pron e hen it has been raised above the cave man's of anarchic self-sufficiency) has everywhere p ed through a communistic stage. When this step • advance has been made a man may individua own his weapons and im plements, a woman he distaff, spinning wheel and personal ornaments, rything else, how ever, is usually owned in common — the land by the Bens, clan or commune, the chattels by the family, the paterfamilias functioning as trustee, so to speak. But collective ownership is not found to be incompatible with individ ual possession. Quite the opposite, in the social stage referred to the division of the common property for singular use and enjoymsit is a subject of supreme concern. A pai-titioi of the arable land is made between the of the commune or tribe, annually or less oently for the purpose of cultivation; woodlaijs pastures are preserved as commons, wlfle the ground occupied by the family domicile n usu ally granted for possession in perpetui.y, a reservation of ultimate ownership bythe com munity. Collectivism in this pnmtive form has persisted to the present day in the Russian ° When the system breaks down com munal ownership is not superseded at once by individual ownership, but by the quasi-corpo rate ownership of property by the family group. The homestead and farmed land became the in alienable and indivisible family °nod of early Teutonic law and, while chattels were let and hired and could be pledged and forfeited, the alienation of patrimonial nroperty was an affair of families, not of individuals, which was ac complished by a clumsy adaptation of the Ro man hereditas universalis. Pear traces of the precedent communal system of proprietorship are found in the laws of republican Rome. The paterfamilias with all his despotic powers could not divest his descendants of their heritage and, when there were no descendants, property re verted to the gens, whose right of succession could be defeated only by a will made with the consent, and in the presence, of the entire comitia, armed and drawn up in battle forma tion. In the village communities of India the primitive Aryan collectivism has developed to a most complicated system of ownership, not only with respect to houses and land, but to all property. Everything a member of the com munity acquires, from an elephant down to a soldering iron, theoretically becomes a part of the common stock, though there are minute regulations securing to individuals the posses sion and use, and the disposition or bequest of the same. The conception of absolute individ ual ownership is of modern origin, relatively speaking, among European nations, but it seems to have prevailed in the ancient monarchies of Chaidea, Assyria and Babylonia. The Mosaic law ordered the redistribution of property by tribes and families in the jubilee years.