§ 73. The American idea of a right. As it has been asserted that Blackstone has nowhere defined rights or property, it will be well for us to arrive at the meaning of these two words. We have seen the definition of Holland that "a legal right is a capacity resting in one man of controlling, with the assent and assistance of the state, the actions of others" (69).

But inasmuch as the conflict may be between the state and the person, this definition will hardly do in American jurisprudence. The state is not the controlling force in our theory of jurisprudence; it is but one of the persons having and owing rights. We claim to have a government of law, not of men.

Perhaps the definition given by Justice Cushing, with Judge Kent's addition, comes as near being correct as anything to be found: "When I say that a right is vested

recover a personal chattel or a sum of money from another by action. It is true, a deed or title for land does not come within this description. And it is true, also, that a mortgagee may avail himself of his legal title to recover in ejectment in a court of law. Yet even there he is considered as having but a chattel interest, while the mortgagor is treated as the true owner." Sheldon v. Sill. 8 How. (U. S.) 449, 450.

"Blackstone seems to have entertained the opinion that the term chose, or thing in action, only included debts due, or damages recoverable for the breach of contract, express or implied. (2 Blk. Com. 388, 396, 397.) But this definition is too limited. The term chose in action is used in contradistinction to chose in possession. It includes all right to personal property not in possession which may be enforced by action; and it makes no difference whether the owner has been deprived of his property by the tortious act of another, or by his breach of contract, express or implied. In both cases, the debt or damages of the owner is a 'thing in action.' (2 Kent, 351; 1 Chit. G. P., p. 99, note; Tomlin's L. D., 'Chose;' The King v. Capper, 5 Price, 217; I Lilly, Ab. 378.)" Gillett v. Fairchild, 4 Den. 80-82. See Mex. Cent. Ry. v. Davidson, 157 U. S. 201.

69 Holland's Jur., 71. This definition may be too narrow as to claims against the state. Hanley v. Schwalby, 147 U. S. 518.

in a citizen, I mean that he has the power to do certain actions or to possess certain things according to the law of the land" (70). Kent adds, "or to require from others" (71).

§ 74. "Property" defined. The word "property," although in common parlance frequently applied to a tract of land or a chattel, in its legal signification means only the rights of the owner in relation to it. It denotes a right over a determinate thing. Property is the right of any person to possess, use, enjoy and dispose of a thing (72). The term "property" is often used to indicate the res, or subject of the property, rather than the property itself; but this is not its proper legal sense (73).

Judicial definitions.-The following definitions, made by courts while considering rights of property in a variety of situations, will make the legal idea of property clearer:

National Supreme Court. "The words 'life, liberty and property' are constitutional terms, and are to be taken in their broadest sense. They indicate the three great sub-divisions of all civil rights. The term 'prop

0 Calder v. Bull, 3 Dall. 386.

711 Kent. Com. 549; Wynehamer v. People, 13 N. Y. 378, 433. 72 Rigney v. Chicago, 102, Ill. 77; Austin's Jur., 817.

78 Eaton v. B. C. & M. Ry., 51 N. H. 504; s. c., 12 Am. Rep. 147. Property.-John Marshall (afterwards chief justice of the Supreme Court of the United States), speaking of the legal conception of property, said: "It is not necessary to inquire how the judicial authority should act, if the legislature were evidently to violate any of the laws of God; but property is the creature of civil society, and subject in all respects to the disposition and control of civil institutions. It must be repeated that the law of property in its origin and operation is the offspring of the social state, not incident of a state of nature." Argument, Ware v. Hylton, 3 Dall. 211.

erty' in this clause embraces all valuable interests which a man may possess outside of himself, that is to say, outside of his life and liberty. It is not confined to mere technical property, but extends to every species of vested right" (74).

The New York Court of Appeals. "Now I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society. In a state of nature, property did not exist at all. 'Every man might then take to his own use what he pleased, and retain it if he had sufficient power; but when men entered into society, and industry, arts and sciences were introduced, property was gained by various means, for the securing whereof proper laws were ordained.' Tomlins' Law Dict., Property; 2 Blk. Com. 34. Material objects, therefore, are property in the true sense, because they are impressed by the laws and usages of society with certain qualities, among which are, fundamentally, the right of the occupant to use and enjoy them exclusively, and his absolute power to sell and dispose of them; and as property consists in the artificial impression of these qualities upon material things, so whatever removes the impression destroys the notion of property, although the things themselves may remain physically untouched." Wynehamer v. The People, 13 N. Y. 396.

Illinois Supreme Court. "Property in its broadest and most comprehensive sense includes all rights and interest in real and personal property, and also in ease

74 Camp v. Holt, 115 U. S. 620.

ments, franchises and incorporeal hereditaments. That which may be taken for public uses is not exclusively tangible property." Met. City Ry. Co. v. Chicago W. D. Ry. Co., 87 Ill. 324.

"Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which it is used in the constitution; yet the term is often used to indicate the res or subject of property, rather than the property itself, and it is evidently used in this sense in some of the cases in connection with the expression 'physical injury,' while at other times it is probably used in its more appropriate sense, as above mentioned (75).

New Hampshire Supreme Court. "In strict legal sense, land is not 'property,' but the subject of property. The term 'property,' although in common parlance frequently applied to a tract of land or a chattel, in its legal signification 'means only the rights of the owner in relation to it.' 'It denotes a right

over a determinate thing.' 'Property is the right of any person to possess, use, enjoy and dispose of a thing.' Selden, J., in Wynehamer v. People, 13 N. Y. 378, 433; 1 Blk. Com. 138; 2 Austin's Jur. (3d ed.) 817, 818.

"If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference 'takes,' pro tanto, the owner's 'property.' The right of

75 Rigney v. Chicago, 102 Ill. 77. See Board of Education v. Blodgett, 155 Ill. 441.

indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property without which absolute property can have no legal existence. 'Use is the real side of property' " (76).

Missouri Supreme Court. A man may be said to have a special property in his possession or calling by means of which he makes his support, and he can be deprived of it only by due process of law (77).

Horses and cattle and land were created by nature. "Property," strictly speaking, is an artificial conception of man.

"It seems to me," says Justice Cushing, "that the right of property in its origin could only arise from compact express or implied, and I think it the better opinion that the right as well as the mode or manner of acquiring property, and of alienating or transferring, inheriting or transmitting it, is conferred by society; it is regulated by civil institutions, and is always subject to the rules prescribed by positive law (78).

ILLUSTRATIVE EXAMPLES.

The definition of property is asked for.

The answer is: the right or interest which one has in or to a thing which may be the subject of property.

76 Eaton v. Boston, Concord & Montreal R. R., 51 N. H. 504; s. c., 12 Am. Rep. 151.

77 Blair v. Ridgely, 41 Mo. 173; 97 Am. Dec. 248.

78 Calder v. Bull, 3 Dall. 386. "A vested cause of action is property, in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Where it (the cause of action) springs from contract or from the principle of the common law, it is not competent for the legislature to take it away." Cooley's Const. Lim., 443, quoted in Board of Education v. Blodgett, 155 Ill.