§1. In the present chapter I propose to consider the main regulations in respect to Property which a consistent legislation on the basis of utilitarian individualism will include.
It will be convenient first to take the common notion of the ``Right of Property'' and analyse it into its elements: and, so far as these elementary rights are separable, to observe the different grounds for maintaining them separately or in combination in different cases. For clearness, we will, in the first instance, limit our consideration to property in material things.
We may begin by observing that the most widely extended right secured to members of an orderly community in respect of material things is merely a right to use transiently, to make the material thing a means to the satisfaction of needs and desires, not necessarily combined with any power to exclude another from using the same thing immediately afterwards,---or even at the same time, so far as this second use does not actually impede the first. The obligation corresponding to this right is merely that interfering with actual use. And in the case of things of which the utility does not result from human labour, and which can be used simultaneously or successively by an indefinite number of persons, without any considerable amount of mutual interference, our principle can only justify us in securing to individuals unhampered and not exclusive use. Thus, if a piece of land is most useful on the whole as an area for common recreation, it is obviously inexpedient to allow it to be appropriated in separate portions for the separate use or enjoyment of particular individuals. Considerable portions of the earth's surface have, in the most civilised societies, been kept out of private ownership for this reason.
It is not, however, the mere right of unhampered use which constitutes the most essential element in the Right of Property, as commonly conceived: but the right of exclusive use. This is always implied in the idea of appropriation: but the obvious utilitarian grounds for it are different in different cases. Some kinds of things---such as food---if used as such at all, can only be used once, and therefore by a single individual: so that the undisturbed use of them is impossible without appropriation. In other cases it is obvious that at any rate the most effective use of the material thing in question---either for immediate enjoyment or as an instrument or material for producing things directly consumable---requires that the user should have the legal right of excluding other persons from any similar use of the thing, or any action materially affecting its physical condition, at least for a considerable period of time. If a field is to be used for the cultivation of crops it is obviously expedient, even in a primitive condition of agriculture, that it should be under the exclusive control of one person---or of a group of persons acting in concert---at least during the time that intervenes between one harvest and another: and as the art of agriculture develops, the requisite period of exclusive control continually tends to become longer.
More often, however, the ground for legalising the exclusive use of material things does not lie in the fact that the things are thus obviously made more useful, but in the fact that their existence---in the form on which their utility depends---is due to labour spent in producing and guarding them, which would not have been expended if the labourer had not been able to count on the exclusive enjoyment of his results: and it is, as we have seen, from this point of view that the right of property is commonly justified by Individualists. But, whatever its rationale may be, it is this right of excluding all others permanently from interference with a particular portion of matter, which we have to regard as the most essential element in the Right of Property in material things.
We may observe that it is the case of non-exclusive no less than of exclusive use, the protection from interference which law gives to the user may be of an indirect kind. Thus, where the water of a stream is used to turn the wheels of a succession of water-mills in its descent, it would be obviously inexpedient to allow the water to become the property of any of the millowners; but in order to encourage them to make the water useful in this way it is expedient to protect them against a diversion of the course of the stream at any point above their mills. And on similar grounds the owner of a house is not merely protected against the forcible entry of a stranger, but for the loss of utility caused by the pollution of the surrounding atmosphere. How far such protection of A from indirect interference should be given, where it involves a material restriction on the freedom of action of other persons, can only be settled in any particular case by a careful balance of conflicting inconveniences.
We have already noticed that the utilities of some things,---such as food and fuel---are completely exhausted in a single use; sometimes, again, as in the case of clothes, ordinary use involves gradual deterioration. In either case it is not practicable to separate the Right to use the thing from the Right to destroy it, totally or partially: and, accordingly, this latter right is included in the common of the right of property. If, however, in the normal and proper use of a thing it either does not tend to be deteriorated or tends to have its original utilities continually restored, it is possible and may be expedient to secure to an individual the exclusive use of it for life or a term of years, without also allowing him to destroy or deteriorate it. Thus, when land used for agricultural purposes is let on lease, some provision against deterioration is generally expedient.
Finally, the right of property is commonly held to include the Right to Alienate by gift or exchange during life; and perhaps also the Right to Bequeath. But either of these may be separated from the right of exclusive use: in fact, this separation is not unusual when the right of exclusively using a thing of comparatively permanent utility is limited in time. The application of the term ``Property'' to a right so limited is perhaps unusual, but I think it is more convenient to use the term, with a qualification, in this wider sense. If the right of deterioration and the right of alienation are withheld, the right of bequest is usually withheld along with them; in which case the right of ownership is reduced to the right of exclusive use during life or for a term of years. At the same time, as was before observed, freedom of bequest is a much more dubious deduction from the general principle of Individualism than freedom of use or of alienation during life; I have therefore thought it most convenient to treat the right of bequest separately. I shall accordingly mean by the ``Right of Property''---when used without qualification---the complete right of exclusive use, including the right to destroy and the right to alienate; but not necessarily the right of bequest.
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