The Online Library of Liberty

A project of Liberty Fund, Inc.

• Note.
• Part I: The Law of Intellectual Property.
• Chapter I.: The Law of Nature In Regard to Intellectual Property.
• Section I.: The Right of Property In Ideas to Be Proved By Analogy.
• Section II.: What Is Wealth?
• Section III.: What Is Property?
• Section IV.: What Is the Right of Property?
• Section V.: What Things Are Subjects of Property?
• Section VI.: How Is the Right of Property Acquired.
• Section VII.: What Is the Foundation of the Right of Property?
• Section VIII.: How Is the Right of Property Transferred?
• Section IX.: Conclusions From the Preceding Principles.
• Chapter II.: Objections Answered.
• Section I.: Objection First.
• Section II.: Objection Second.
• Section III.: Objection Third.
• Section IV.: Objection Fourth.
• Section V.: Objection Fifth.
• Section VI.: Objection Sixth.
• Section VII.: Objection Seventh.
• Section VIII.: Objection Eighth.
• Section IX.: Objection Ninth.
• Section X.: Objection Tenth.
• Section XI.: Objection Eleventh.
• Section XII.: Objection Twelfth.
• Section XIII.: Objection Thirteenth.
• Section XIV.: Objection Fourteenth.
• Section XV.: Objection Fifteenth.
• Chapter III.: Perpetuity and Descent of Intellectual Property.
• Section I.: Perpetuity of Intellectual Property.
• Section II.: Descent of Intellectual Property.
• Chapter IV.: The Sale of Ideas.
• Chapter V.: The Policy of Perpetuity In Intellectual Property.
• Part II: The Common Law of England. (vol. I)
• Chapter VI.: The Common Law of England Relative to Intellectual Property.
• Section I.: What Is the Common Law of England?
• Section II.: Why the Common Law Right of Property In Ideas Has Not Been More Fully Acknowledged.
• Section III.: Review of the Case of Millar Vs. Taylor.
• Section IV.: Review of the Case of Donaldson and Another, Vs. Becket and Another.

CHAPTER I.

THE LAW OF NATURE IN REGARD TO INTELLECTUAL PROPERTY.

SECTION I.

The Right of Property in Ideas to be proved by Analogy.

In order to understand the law of nature in regard to intellectual property, it is necessary to understand the principles of that law in regard to property in general. We shall then see that the right of property in ideas, is at least as strong as—and in many cases identical with—the right of property in material things.

To understand the law of nature, relative to property in general, it is necessary, in the first place, that we understand the distinction between wealth and property; and, in the second place, that we understand how and when wealth becomes property.

We shall therefore consider:

• 1.What is Wealth?
• 2.What is Property?
• 3.What is the Right of Property?
• 4.What Things are Subjects of Property?
• 5.How is the Right of Property Acquired?
• 6.What is the Foundation of the Right of Property?
• 7.How is the Right of Property Transferred?
• 8.Conclusions from the Preceding Principles.

SECTION II.

What is Wealth?

Wealth is any thing, that is, or can be made, valuable to man, or available for his use.

The term wealth properly includes every conceivable object, idea, and sensation, that can either contribute to, or constitute, the physical, intellectual, moral, or emotional well-being of man.

Light, air, water, earth, vegetation, minerals, animals, every material thing, living or dead, animate or inanimate, that can aid, in any way, the comfort, happiness, or welfare of man, are wealth.

Things intangible and imperceptible by our physical organs, and perceptible only by the intellect, or felt only by the affections, are wealth. Thus liberty is wealth; opportunity is wealth; motion or labor is wealth; rest is wealth; reputation is wealth; love is wealth; sympathy is wealth; hope is wealth; knowledge is wealth; truth is wealth; for the simple reason that they all contribute to, or constitute in part, a man’s well-being.

All a man’s faculties, physical, intellectual, moral, and affectional, whereby he either procures, or enjoys, happiness, are wealth.

Happiness itself is wealth. It is the highest wealth. It is the ultimate wealth, which it is the object of all other wealth to procure.

Inasmuch as any given thing is wealth, because, and solely because, it may contribute to, or constitute, the happiness or well-being of man, it follows that every thing, that can contribute to, or constitute, his happiness or well-being, is necessarily wealth.

The question whether a given thing be, or be not wealth, does not therefore depend at all upon its being tangible or perceptible by our physical organs; because its capacity to contribute to, or constitute, the happiness of man, does not depend at all upon its being thus tangible or perceptible. Things intangible and imperceptible by our physical organs, as liberty, reputation, love, and truth, for example, have as clearly a capacity to contribute to, and constitute, the happiness and well-being of man, as have any of those things that are thus tangible and perceptible.

Another reason why tangibility and perceptibility by our physical organs, are no criteria of wealth, is, that it really is not our physical organs, but the mind, and only the mind, that takes cognizance even of material objects. We are in the habit of saying that the eye sees any material object. But, in reality, it is only the mind that sees it. The mind sees it through the eye. It uses the eye merely as an instrumentality for seeing it. An eye, without a mind, could see nothing. So also it is with the hand, as it is with the eye. We are in the habit of saying that the hand touches any material thing. But, in reality, it is only the mind, that perceives the contact, or takes cognizance of the touch. The hand, without the mind, could feel nothing, and take cognizance of nothing, it should come in contact with. The mind simply uses the hand, as an instrument for touching; just as it uses the eye, as an instrument for seeing. It is, therefore, only the mind, that takes cognizance of any thing material. And every thing, of which the mind does take cognizance, is equally wealth, whether it be material or immaterial; whether it be tangible or perceptible, through the instrumentality of our physical organs, or not. It would be absurd to say that one thing was wealth, because the mind was obliged to use such material instruments as the hand, or the eye, to perceive it; and that another thing, as an idea, for example, was not wealth, simply because the mind could perceive it without using any material instruments.

It is plain, therefore, that an idea, which the mind perceives, without the instrumentality of our physical organs, is as clearly wealth, as is a house, or a horse, or any material thing, which the mind sees by the aid of the eye, or touches through the instrumentality of the hand. The capacity of the thing, whether it be a horse, a house, or an idea, to contribute to, or constitute, the well-being of man, is the only criterion by which to determine whether or not it be wealth; and not its tangibility or perceptibility, through the agency of our physical organs.

An idea, then, is wealth. It is equally wealth, whether it be regarded, as some ideas may be, simply as, in itself, an object of enjoyment, reflection, meditation, and thus a direct source of happiness; or whether it be regarded, as other ideas may be, simply as a means to be used for acquiring other wealth, intellectual, moral, affectional, or material.

An idea is self-evidently wealth, when it imparts happiness directly. It is wealth, because it imparts happiness. It is also equally wealth, when it is used as an instrument or means of creating or acquiring other wealth. It is then as clearly wealth, as is any other instrumentality for acquiring wealth.

The idea, after which a machine is fashioned, is as clearly wealth, as is the material of which the machine is composed. The idea is the life of the machine, without which, the machine would be inoperative, powerless, and incapable of producing wealth.

The plan after which a house is built, is as much wealth, as is the material of which the house is constructed. Without the plan, the material would have failed to furnish shelter or comfort to the owner. It would have failed to be a house.

The idea, or design, after which a telescope is constructed, is as much wealth, as are the materials of which the telescope is composed. Without the idea, the materials would have failed to aid men in their examination of the heavens.

The design, after which a picture is drawn, is as clearly wealth, as is the canvas on which it is drawn, or the paint with which it is drawn. Without the design, the canvas and the paint could have done nothing towards producing the picture, which is now so valuable.

The same principle governs in every department and variety of industry. An idea is every where and always the guide of labor, in the production and acquisition of wealth; and the idea, that guides labor, in the production or acquisition of wealth, is itself as obviously wealth, as is the labor, or as is any other instrumentality, agency, object, or thing whatever, whether material or immaterial, that aids in the production or acquisition of wealth.

To illustrate—The compass and rudder, that are employed in guiding a ship, and without which the ship would be useless, are as much wealth, as is the ship itself, or as is the freight which the ship is to carry. But it is plain that the mind, that observes the compass, and the thought, that impels and guides the hand that moves the rudder, are also as much wealth, as are the compass and rudder themselves.

So the thought, that guides the hand in labor, is ever as clearly wealth, as is the hand itself; or as is the material, on which the hand is made to labor; or as is the commodity, which the hand is made to produce. But for the thought, that guides the hand, the commodity would not be produced; the labor of the hand would be fruitless, and therefore valueless.

Every thing, therefore—whether intellectual, moral, or material, however gross, or however subtile; whether tangible or intangible, perceptible or imperceptible, by our physical organs—of which the human mind can take cognizance, and which, either as a means, occasion, or end, can either contribute to, or of itself constitute, the well-being of man, is wealth.

Mankind, in their dealings with each other, in their purchases, and in their sales, both tacitly and expressly acknowledge and act upon the principle, that a thought is wealth; that it is a wealth whose value is to be estimated and paid for, like other wealth. Thus a machine is valuable in the market, according to the idea, after which it is fashioned. The plan, after which a house is built, enters into the market value of the house. The design, after which a picture is drawn, and the skill with which it is drawn, enter into, and mainly constitute, the mercantile value of the picture itself. The canvas and the paint, as simple materials, are worth—in comparison with the thought and skill embodied in the picture—only as one to an hundred, a thousand, or ten thousand.

Mankind, ignorant and enlightened, savage and civilized, with nearly unbroken universality, regard ideas, thoughts, and emotions, as the most valuable wealth they can either possess for themselves, or give to their children. They value them, both as direct sources of happiness, and as aids to the acquisition of other wealth. They are, therefore, all assiduously engaged in acquiring ideas, for their own enjoyment and use, and imparting them to their children, for their enjoyment and use. They voluntarily exchange their own material wealth, for the intellectual wealth of other men. They pay their money for other men’s thoughts, written on paper, or uttered by the voice. So self-evident, indeed, is it that ideas are wealth, in the universal judgment of mankind, that it would have been entirely unnecessary to assert and illustrate the fact thus elaborately, in this connection, were it not that the principle lies at the foundation of all inquiries as to what is property; and, at the same time, it is one that is so universally, naturally, and unconsciously, received and acted upon, in practical life, that it is never even brought into dispute; men do not stop to theorize upon it; and therefore do not form any such definite, exact, or clear ideas about it, as are necessary to furnish, or constitute, the basis, or starting point, of the subsequent inquiries, to which this essay is devoted. For these reasons, the principle has now been stated thus particularly.

SECTION III.

What is Property?

Property is simply wealth, that is possessed—that has an owner; in contradistinction to wealth, that has no owner, but lies exposed, unpossessed, and ready to be converted into property, by whomsoever chooses to make it his own.

All property is wealth; but all wealth is not property. A very small portion of the wealth in the world has any owner. It is mostly unpossessed. Of the wealth in the ocean, for example, only an infinitesimal part ever becomes property. Man occasionally takes possession of a fish, or a shell, leaving all the rest of the ocean’s wealth without an owner.

A somewhat larger proportion, but still a small proportion, of the wealth that lies in and upon the land, is property. Of the forests, the mines, the fruits, the animals, the atmosphere, a small part only has ever became property.

Of intellectual wealth, too, doubtless a very minute portion of all that is susceptible of acquisition, and possession, has ever been acquired—that is, has ever become property. Of all the truths, and of all the knowledge, which will doubtless sometime be possessed, how little is now possessed.

SECTION IV.

What is the Right of Property?

The right of property is simply the right of dominion. It is the right, which one man has, as against all other men, to the exclusive control, dominion, use, and enjoyment of any particular thing.

The principle of property is, that a thing belongs to one man, and not to another—mine, and thine, and his, are the terms that convey the idea of property.

The word property is derived from proprius, signifying one’s own. The principle of property, then, is the principle of one’s personal ownership, control, and dominion, of and over any thing. The right of property is one’s right of ownership, enjoyment, control, and dominion, of and over any object, idea, or sensation.

The proprietor of any thing has the right to an exclusive ownership, control, and dominion, of and over the thing of which he is the proprietor. The thing belongs to him, and not to another man. He has a right, as against all other men, to control it according to his own will and pleasure; and is not accountable to others for the manner in which he may use it. Others have no right to take it from him, against his will; nor to exercise any authority, control, or dominion over it, without his consent; nor to impede, nor obstruct him in the exercise of such dominion over it, as he chooses to exercise. It is not theirs, but his. They must leave it entirely subject to his will. His will, and not their wills, must control it. The only limitation, which any or all others have a right to impose upon his use and disposal of it, is, that he shall not so use it as to invade, infringe, or impair the equal supremacy, dominion, and control of others, over what is their own.

The legal idea of property, then, is, that one thing belongs to one man, and another thing to another man; and that neither of these persons have a right to any voice in the control or disposal of what belongs to the other; that each is the sole lord of what is his own; that he is its sovereign; and has a right to use, enjoy, and dispose of it, at his pleasure, without giving any account, or being under any responsibility, to others, for his manner of using, enjoying, or disposing of it.

This right of property, which each man has, to what is his own, is a right, not merely against any one single individual, but it is a right against all other individuals, singly and collectively. The right is equally valid, and equally strong, against the will of all other men combined, as against the will of every or any other man separately. It is a right against the whole world. The thing is his, and is not the world’s. And the world must leave it alone, or it does him a wrong; commits a trespass, or a robbery, against him. If the whole world, or any one of the world, desire anything that is an individual’s, they must obtain his free consent to part with it, by such inducements as they can offer him. If they can offer him no inducements, sufficient to procure his free consent to part with it, they must leave him in the quiet enjoyment of what is his own.

SECTION V.

What Things are Subjects of Property?

Every conceivable thing, whether intellectual, moral, or material, of which the mind can take cognizance, and which can be possessed, held, used, controlled, and enjoyed, by one person, and not, at the same instant of time, by another person, is rightfully a subject of property.

All the wealth, that has before been described—that is, all the things, intellectual, moral, emotional, or material, that can contribute to, or constitute, the happiness or well-being of man; and that can be possessed by one man, and not at the same time by another, is rightfully a subject of property—that is, of individual ownership, control, dominion, use, and enjoyment.

The air, that a man inhales, is his, while it is inhaled. When he has exhaled it, it is no longer his. The air that he may inclose in a bottle, or in his dwelling, is his, while it is so inclosed. When he has discharged it, it is no longer his. The sun-light, that falls upon a man, or upon his land, or that comes into his dwelling, is his; and no other man has a right to forbid his enjoyment of it, or compel him to pay for it.

A man’s body is his own. It is the property of his mind. (It is the mind that owns every thing, that is property. Bodies own nothing; but are themselves subjects of property—that is, of dominion. Each body is the property—that is, is under the dominion—of the mind that inhabits it.) And no man has the right, as being the proprietor, to take another man’s body out of the control of his mind. In other words, no man can own another man’s body.

All a man’s enjoyments, all his feelings, all his happiness, are his property. They are his, and not another man’s. They belong to him, and not to others. And no other man has the right to forbid him to enjoy them, or to compel him to pay for them. Other men may have enjoyments, feelings, happiness, similar, in their nature, to his. But they cannot own his feelings, his enjoyments, or his happiness. They cannot, therefore, rightfully require him to pay them for them, as if they were theirs, and not his own.

A man’s ideas are his property. They are his for enjoyment, and his for use. Other men do not own his ideas. He has a right, as against all other men, to absolute dominion over his ideas. He has a right to act his own judgment, and his own pleasure, as to giving them, or selling them to other men. Other men cannot claim them of him, as if they were their property, and not his; any more than they can claim any other things whatever, that are his. If they desire them, and he does not choose to give them to them gratuitously, they must buy them of him, as they would buy any other articles of property whatever. They must pay him his price for them, or not have them. They have no more right to force him to give his ideas to them, than they have to force him to give them his purse.

Mankind universally act upon this principle. No sane man, who acknowledged the right of individual property in any thing, ever claimed that, as a natural or general principle, he was the rightful owner of the thoughts produced, and exclusively possessed, by other men’s minds; or demanded them on the ground of their being his property; or denied that they were the property of their possessors.

If the ideas, which a man has produced, were not rightfully his own, but belonged equally to other men, they would have the right imperatively to require him to give his ideas to them, without compensation; and it would be just and right for them to punish him as a criminal, if he refused.

Among civilized men, ideas are common articles of traffic. The more highly cultivated a people become, the more are thoughts bought and sold. Writers, orators, teachers, of all kinds, are continually selling their thoughts for money. They sell their thoughts, as other men sell their material productions, for what they will bring in the market. The price is regulated, not solely by the intrinsic value of the ideas themselves, but also, like the prices of all other commodities, by the supply and demand. On these principles, the author sells his ideas in his volumes; the poet sells his in his verses; the editor sells his in his daily or weekly sheets; the statesman sells his in his messages, his diplomatic papers, his speeches, reports, and votes; the jurist sells his in his judgments, and judicial opinions; the lawyer sells his in his counsel, and his arguments; the physician sells his in his advice, skill, and prescriptions; the preacher sells his in his prayers and sermons; the teacher sells his in his instructions; the lecturer sells his in his lectures; the architect sells his in his plans; the artist sells his in the figure he has engraven on stone, and in the picture he has painted on canvas. In practical life, these ideas are all as much articles of merchandize, as are houses, and lands, and bread, and meat, and clothing, and fuel. Men earn their livings, and support their families, by producing and selling ideas. And no man, who has any rational ideas of his own, doubts that in so doing they earn their livelihood in as legitimate a manner as any other members of society earn theirs. He who produces food for men’s minds, guides for their hands in labor, and rules for their conduct in life, is as meritorious a producer, as he who produces food or shelter for their bodies.

Again. We habitually talk of the ideas of particular authors, editors, poets, statesmen, judges, lawyers, physicians, preachers, teachers, artists, &c., as being worth less than the price that is asked or paid for them, in particular instances; and of other men’s ideas, as being worth more than the price that is paid for them, in particular instances; just as we talk of other and material commodities, as being worth less or more than the prices at which they are sold. We thus recognize ideas as being legitimate articles of traffic, and as having a regular market value, like other commodities.

Because all men give more or less of their thoughts gratuitously to their fellow men, in conversation, or otherwise, it does not follow at all that their thoughts are not their property, which they have a natural right to set their own price upon, and to withhold from other men, unless the price be paid. Their thoughts are thus given gratuitously, or in exchange for other men’s thoughts, (as in conversation,) either for the reason that they would bring nothing more in the market, or would bring too little to compensate for the time and labor of putting them in a marketable form, and selling them. Their market value is too small to make it profitable to sell them. Such thoughts men give away gratuitously, or in exchange for such thoughts as other men voluntarily give in return—just as men give to each other material commodities of small value, as nuts, and apples, a piece of bread, a cup of water, a meal of victuals, from motives of complaisance and friendship, or in expectation of receiving similar favors in return; and not because these articles are not as much property, as are the most valuable commodities that men ever buy or sell. But for nearly all information that is specially valuable, or valuable enough to command a price worth demanding—though it be given in one’s private car, as legal or medical advice, for example—a pecuniary compensation is demanded, with nearly the same uniformity as for a material commodity. And no one doubts that such information is a legitimate and lawful consideration for the equivalent paid. Courts of justice uniformly recognize them as such, as in the case of legal, medical, and various other kinds of information. One man can sue for and recover pay for ideas, which, as lawyer, physician, teacher, or editor, he has sold to another man, just as he can for land, food, clothing, or fuel.

SECTION VI.

How is the Right of Property acquired.

The right of property, in material wealth, is acquired, in the first instance, in one of these two ways, viz.: first, by simply taking possession of natural wealth, or the productions of nature; and, secondly, by the artificial production of other wealth. Each of these ways will be considered separately.

1. The natural wealth of the world belongs to those who first take possession of it. The right of property, in any article of natural wealth, is first acquired by simply taking possession of it.

Thus a man, walking in the wilderness, picks up a nut, a stick, or a diamond, which he sees lying on the ground before him. He thereby makes it his property—his own. It is thenceforth his, against all the world. No other human being, nor any number of human beings, have any right, on the ground of property, to take it from him, without his consent. They are all bound to acknowledge it to be his, and not theirs.

It is in this way that all natural wealth is first made property. And any, and all natural wealth whatsoever, that can be possessed, becomes property in consequence, and solely in consequence, of one’s simply taking possession of it.

There is no limit, fixed by the law of nature, to the amount of property one may acquire by simply taking possession of natural wealth, not already possessed, except the limit fixed by his power or ability to take such possession, without doing violence to the person or property of others. So much natural wealth, remaining unpossessed, as any one can take possession of first, becomes absolutely his property.*

This mode of acquiring property, by taking possession of the productions of nature, is a just mode. Nobody is wronged—that is, nobody is deprived of any thing that is his own—when one man takes possession of a production of nature, which lies exposed, and unpossessed by any one. The first comer has the same right, and all the right, to take possession of it, and make it his own, that any subsequent comer can have. No subsequent comer can show any right to it, different in its nature, from that, which the first comer exercises, in taking the possession. The wealth of nature, thus taken, and made property, was provided for the use of mankind. The only way, in which it can be made useful to mankind, is by their taking possession of it individually, and thus making it private property. Until it is made property, no one can have the right to apply it to the satisfaction of his own, or any other person’s, wants, or desires. The first comer’s wants and desires are as sacred in their nature, and the presumption is that they are as necessary to be supplied, as those of the second comer will be. They, therefore, furnish to him as good an authority for taking possession of the wealth of nature, as those of the second comer will furnish to him. They may chance to be either less, or more, violent, in degree; but whether less, or more, (if that were important to his comparative right,) the first comer cannot know. It is enough for him, that his own wants and desires have their origin in his own human-nature, in the same way that those of the second comer will have theirs. And such wants and desires are a sufficient warrant for him to take whatever nature has spread before him for their gratification, unless it have been already appropriated by some other person.

After he has taken possession of it, it is his, by an additional right, such as no other person can have. He has bestowed his labor upon it—the labor, at least, of taking it into his possession; and this labor will be lost to him, if he be deprived of the commodity he has taken possession of. It is of no importance how slight that labor may have been, though it be but the labor of a moment, as in picking up a pebble from the ground, or plucking a fruit from a tree. Even that labor, trifling as it is, is more than any other one has bestowed upon it. And it is enough for him, that that was his labor, and not another man’s. He can now show a better right to the thing he has taken possession of, than any other man can. He had an equal right with any other man before; now he has a superior one, for he has expended his labor upon it, and no other person has done the like.

It cannot be said that the first comer is bound to leave something to supply the wants of the second. This argument would be just as good against the right of the second comer, the third, the fourth, and so on indefinitely, as it is against the right of the first; for it might, with the same reason, be said of each of these, that he was bound to leave something for those who should come after him. The rule, therefore, is, that each one may take enough to supply his own wants, if he can find the wherewith, unappropriated. And the history of the race proves that under this rule, the last man’s wants are better supplied than were those of the first, owing to the fact of the last man’s having the skill and means of creating more wealth for himself, than the first one had. He has also the benefit of all the accumulations, which his predecessors have left him. The first man is a hungry, shivering savage, with all the wealth of nature around him. The last man revels in all the luxuries, which art, science, and nature, working in concert, can furnish him.

Moreover, the wealth of nature is inexhaustible. The first comer can, at best, take possession of but an infinitesimal portion of the whole; not even so much, probably, as would fall to his share, if the whole were equally divided among the inhabitants of the globe. And this is another reason why a second comer cannot complain of the portion taken by the first.

There are still two other reasons why the first comer does no wrong to his successors, by taking possession of whatever natural wealth he can find, for the gratification of his wants. One of these reasons is, that when the wealth taken is of a perishable nature, as the fruit of a vine or tree, for example, it is liable to perish without ministering to the wants of any one, unless the first comer appropriate it to the satisfaction of his own. The other reason is, that when the wealth taken, is of a permanent nature, as land, for example, then the first comer, by taking possession of it—that is, by bestowing useful labor upon it—makes it more capable of contributing to the wants of mankind, than it would have been if left in its natural state. It is of course right that he should enjoy, during his life, the fruits of his own labor, in the increased value of the land he has improved; and when he dies, he leaves the land in a better condition for those who come after him, than it would have been in, if he had not expended his labor upon it.

Finally, the wealth of nature can be made available for the supply of men’s wants, only by men’s taking possession of portions of it individually, and making such portions their own. A man must take possession of the natural fruits of the earth, and thus make them his property, before he can apply them to the sustenance of his body. He must take possession of land, and thus make it his property, before he can raise a crop from it, or fit it for his residence. If the first comer have no right to take possession of the earth, or its fruits, for the supply of his wants, the second comer certainly can have no such right. The doctrine, therefore, that the first comer has no natural right to take possession of the wealth of nature, make it his property, and apply to his uses, is a doctrine that would doom the entire race to starvation, while all the wealth of nature remained unused, and unenjoyed around them.

For all these reasons, and probably for still others that might be given, the simple taking possession of the wealth of nature, is a just and natural, as it is a necessary, mode of acquiring the right of property in such wealth.

2. The other mode, in which the right of property is acquired, is by the creation, or production, of wealth, by labor.

The wealth created by labor, is the rightful property of the creator, or producer. This proposition is so self-evident as hardly to admit of being made more clear; for if the creator, or producer, of wealth, be not its rightful proprietor, surely no one else can be; and such wealth must perish unused.

The material wealth, created by labor, is created by bestowing labor upon the productions of nature, and thus adding to their value. For example—a man bestows his labor upon a block of marble, and converts it into a statue; or upon a piece of wood and iron, and converts them into a plough; or upon wool, or cotton, and converts it into a garment. The additional value thus given to the stone, wood, iron, wool, and cotton, is a creation of new wealth, by labor. And if the laborer own the stone, wood, iron, wool, and cotton, on which he bestows his labor, he is the rightful owner of the additional value which his labor gives to those articles. But if he be not the owner of the articles, on which he bestows his labor, he is not the owner of the additional value he has given to them; but gives or sells his labor to the owner of the articles on which he labors.

Having thus seen the principles, on which the right of property is acquired in material wealth, let us now take the same principles, and see how they will apply to the acquisition of the right of property in ideas, or intellectual wealth.

1. If ideas be considered as productions of nature, or as things existing in nature, and which men merely discover, or take possession of, then he who does discover, or first take possession of, an idea, thereby becomes its lawful and rightful proprietor; on the same principle that he, who first takes possession of any material production of nature, thereby makes himself its rightful owner.* And the first possessor of the idea, has the same right, either to keep that idea solely for his own use, or enjoyment, or to give, or sell it to other men, that the first possessor of any material commodity has, to keep it for his own use, or to give, or sell it, to other men.

2. If ideas be considered, not as productions of nature, or as things existing in nature, and merely discovered by man, but as entirely new wealth, created by his labor—the labor of his mind—then the right of property in them belongs to him, whose labor created them; on the same principle that any other wealth, created by human labor, belongs rightfully, as property, to its creator, or producer.

It cannot be truly said that there is any intrinsic difference in the two cases; that material wealth is created by physical labor, and ideas only by intellectual labor; and that this difference, in the mode of creation, or production, makes a difference in the rights of the creators, or producers, to the products of their respective labors. Any article of wealth, which a man creates or produces, by the exercise of any one portion of his wealth-producing faculties, is as clearly his rightful property, as is any other article of wealth, which he creates or produces, by any other portion of his wealth-producing faculties. If his mind produces wealth, that wealth is as rightfully his property, as is the wealth that is produced by his hands. This proposition is self-evident, if the fact of creation, or production, by labor, be what gives the creator or producer a right to the wealth he creates, or produces.

But, secondly, there is no real foundation for the assertion, or rather for the distinction assumed, that material wealth is produced by physical labor, and that ideas are produced by intellectual labor. All that labor, which we are in the habit of calling physical labor, is in reality performed wholly by the mind, will, or spirit, which uses the bones and muscles merely as tools. Bones and muscles perform no labor of themselves; they move, in labor, only as they are moved by the mind, will, or spirit. It is, therefore, as much the mind, will, or spirit, that lifts a stone, or fells a tree, or digs a field, as it is the mind, will, or spirit, that produces an idea. There is, therefore, no such thing as the physical labor of men, independently of their intellectual labor. Their intellectual powers merely use their physical organs, as tools, in performing what we call physical labor. And the physical organs have no more merit in the production of material wealth, than have the saws, hammers, axes, hoes, spades, or any other tools, which the mind of man uses in the production of wealth.

All wealth, therefore, whether material or intellectual, which men produce, or create, by their labor, is, in reality, produced or created by the labor of their minds, wills, or spirits, and by them alone. A man’s rights, therefore, to the intellectual products of his labor, necessarily stand on the same basis with his rights to the material products of his labor. If he have the right to the latter, on the ground of production, he has the same right to the former, for the same reason; since both kinds of wealth are alike the productions of his intellectual or spiritual powers.

The fact, that the mind uses the physical organs in the production of material wealth, can make no distinction between such wealth, and ideas—for the mind also uses a material organ, (the brain,) in the production of ideas; just as, in the production of material wealth, it uses both brain and bone.

So far, therefore, as a man’s right to wealth, has its origin in his production or creation of that wealth by his labor, it is impossible to establish a distinction between his right to material, and his right to intellectual, wealth; between his right to a house that he has erected, and his right to an idea that he has produced.

If there be any possible ground of distinction, his right is even stronger to the idea, than to the house; for the house was constructed out of that general stock of materials, which nature had provided for, and offered to, the whole human race, and which one human being had as much natural right to take possession of, as another; while the idea is a pure creation of his own faculties, accomplished without abstracting, from any common stock of natural wealth, any thing whatever, which the rest of the world could, in any way, claim, as belonging to them, in common with him.

SECTION VII.

What is the Foundation of the Right of Property?

The right of property has its foundation, first, in the natural right of each man to provide for his own subsistence; and, secondly, in his right to provide for his general happiness and well-being, in addition to a mere subsistence.

The right to live, includes the right to accumulate the means of living; and the right to obtain happiness in general, includes the right to accumulate such commodities as minister to one’s happiness. These rights, then, to live, and to obtain happiness, are the foundations of the right of property. Such being the case, it is evident that no other human right has a deeper foundation in the nature and necessities of man, than the right of property. If, when one man has dipped a cup of water from the stream, to slake his own thirst, or gathered food, to satisfy his own hunger, or made a garment, to protect his own body, other men can rightfully tell him that these commodities are not his, but theirs, and can rightfully take them from him, without his consent, his right to provide for the preservation of his own life, and for the enjoyment of happiness, are extinct.

The right of property in intellectual wealth, has manifestly the same foundation, as the right of property in material wealth. Without intellectual wealth—that is, without ideas—material wealth could neither be accumulated, nor fitted to contribute, nor made to contribute, to the sustenance or happiness of man. Intellectual wealth, therefore, is indispensable to the acquisition and use of other wealth. It is also, of itself, a direct source of happiness, in a great variety of ways. Furthermore, it is not only a thing of value, for the owner’s uses, but, as has before been said, like material wealth, it is a merchantable commodity; has a value in the market; and will purchase, for its proprietor, other wealth in exchange. On every ground, therefore, the right of property in ideas, has as deep a foundation in the nature and necessities of man, as has the right of property in material things.

SECTION VIII.

How is the Right of Property Transferred?

From the very nature of the right of property, that right can be transferred, from the proprietor, only by his own consent. What is the right of property? It is, as has before been explained, a right of control, of dominion. If, then, a man’s property be taken from him without his consent, his right of control, or dominion over it, is necessarily infringed; in other words, his right of property is necessarily violated.

Even to use another’s property, without his consent, is to violate his right of property; because it is for the time being, assuming a dominion over wealth, the rightful dominion over which belongs solely to the owner.

These are the principles of the law of nature, relative to all property. They are as applicable to intellectual, as to material, property. The consent, or will, of the owner alone, can transfer the right of property in either, or give to another the right to use either.

If it be asked, how is the consent of a man to part with his intellectual property to be proved? The answer is, that it must be proved, like all other facts in courts of justice, by evidence that is naturally applicable to prove such a fact, and that is sufficient to satisfy the mind of the tribunal that tries that question.

SECTION IX.

Conclusions from the Preceding Principles.

The conclusions, that follow from the principles now established, obviously are, that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.

[* ] Some persons object to this principle, for the reason that, as they say, a single individual might, in this way, take possession of a whole continent, if he happened to be the first discoverer; and might hold it against all the rest of the human race. But this objection arises wholly from an erroneous view of what it is, to take possession of any thing. To simply stand upon a continent, and declare one’s self the possessor of it, is not to take possession of it. One would, in that way, take possession only of what his body actually covered. To take possession of more than this, he must bestow some valuable labor upon it, such, for example, as cutting down the trees, breaking up the soil, building a hut or a house upon it, or a fence around it. In these cases, he holds the land in order to hold the labor which he has put into it, or upon it. And the land is his, so long as the labor he has expended upon it remains in a condition to be valuable for the uses for which it was expended; because it is not to be supposed that a man has abandoned the fruits of his labor so long as they remain in a state to be practically useful to him.

[* ] “To discover,” and “to take possession of,” an idea, are one and the same act; while to discover, and to take possession of, a material thing, are separate acts. But this difference in the two cases cannot affect the principle we are discussing.