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Men could not appropriate the most fixed of all the elements without appropriating the three others； since； by French and Roman law； property in the surface carries with it property from zenith to nadir_Cujus est solum； ejus est usque ad caelum_。 Now； if the use of water； air； and fire excludes property； so does the use of the soil。 This chain of reasoning seems to have been presented by M。 Ch。 Comte； in his 〃Treatise on Property；〃 chap。 5。
〃If a man should be deprived of air for a few moments only； he would cease to exist； and a partial deprivation would cause him severe suffering； a partial or complete deprivation of food would produce like effects upon him though less suddenly； it would be the same； at least in certain climates！ were he deprived of all clothing and shelter。 。 。 。 To sustain life； then； man needs continually to appropriate many different things。 But these things do not exist in like proportions。 Some； such as the light of the stars； the atmosphere of the earth； the water composing the seas and oceans； exist in such large quantities that men cannot perceive any sensible increase or diminution； each one can appropriate as much as his needs require without detracting from the enjoyment of others； without causing them the least harm。 Things of this sort are； so to speak； the common property of the human race； the only duty imposed upon each individual in this regard is that of infringing not at all upon the rights of others。〃
Let us complete the argument of M。 Ch。 Comte。 A man who should be prohibited from walking in the highways； from resting in the fields； from taking shelter in caves； from lighting fires； from picking berries； from gathering herbs and boiling them in a bit of baked clay；such a man could not live。 Consequently the earthlike water； air； and lightis a primary object of necessity which each has a right to use freely； without infringing another's right。 Why； then； is the earth appropriated？ M。 Ch。 Comte's reply is a curious one。 Say pretends that it is because it is not FUGITIVE； M。 Ch。 Comte assures us that it is because it is not INFINITE。 The land is limited in amount。 Then； according to M。 Ch。 Comte； it ought to be appropriated。 It would seem； on the contrary； that he ought to say； Then it ought not to be appropriated。 Because； no matter how large a quantity of air or light any one appropriates； no one is damaged thereby； there always remains enough for all。 With the soil； it is very different。 Lay hold who will； or who can； of the sun's rays； the passing breeze； or the sea's billows； he has my consent； and my pardon for his bad intentions。 But let any living man dare to change his right of territorial possession into the right of property； and I will declare war upon him； and wage it to the death！
M。 Ch。 Comte's argument disproves his position。 〃Among the things necessary to the preservation of life；〃 he says； 〃there are some which exist in such large quantities that they are inexhaustible； others which exist in lesser quantities； and can satisfy the wants of only a certain number of persons。 The former are called COMMON； the latter PRIVATE。〃
This reasoning is not strictly logical。 Water； air； and light are COMMON things； not because they are INEXHAUSTIBLE； but because they are INDISPENSABLE； and so indispensable that for that very reason Nature has created them in quantities almost infinite； in order that their plentifulness might prevent their appropriation。 Likewise the land is indispensable to our existence；consequently a common thing； consequently insusceptible of appropriation； but land is much scarcer than the other elements； therefore its use must be regulated； not for the profit of a few； but in the interest and for the security of all。
In a word； equality of rights is proved by equality of needs。 Now； equality of rights； in the case of a commodity which is limited in amount； can be realized only by equality of possession。 An agrarian law underlies M。 Ch。 Comte's arguments。
From whatever point we view this question of propertyprovided we go to the bottom of itwe reach equality。 I will not insist farther on the distinction between things which can； and things which cannot； be appropriated。 On this point； economists and legists talk worse than nonsense。 The Civil Code； after having defined property； says nothing about susceptibility of appropriation； and if it speaks of things which are in THE MARKET； it always does so without enumerating or describing them。 However； light is not wanting。 There are some few maxims such as these： _Ad reges potestas omnium pertinet； ad singulos proprietas； Omnia rex imperio possidet； singula dominio_。 Social sovereignty opposed to private property！might not that be called a prophecy of equality； a republican oracle？ Examples crowd upon us： once the possessions of the church； the estates of the crown； the fiefs of the nobility were inalienable and imprescriptible。 If； instead of abolishing this privilege； the Constituent had extended it to every individual； if it had declared that the right of labor； like liberty； can never be forfeited；at that moment the revolution would have been consummated； and we could now devote ourselves to improvement in other directions。
％ 2。Universal Consent no Justification of Property。
In the extract from Say； quoted above； it is not clear whether the author means to base the right of property on the stationary character of the soil； or on the consent which he thinks all men have granted to this appropriation。 His language is such that it may mean either of these things； or both at once； which entitles us to assume that the author intended to say； 〃The right of property resulting originally from the exercise of the will； the stability of the soil permitted it to be applied to the land； and universal consent has since sanctioned this application。〃
However that may be； can men legitimate property by mutual consent？ I say； no。 Such a contract； though drafted by Grotius； Montesquieu； and J。 J。 Rousseau； though signed by the whole human race； would be null in the eyes of justice； and an act to enforce it would be illegal。 Man can no more give up labor than liberty。 Now； to recognize the right of territorial property is to give up labor； since it is to relinquish the means of labor； it is to traffic in a natural right； and divest ourselves of manhood。
But I wish that this consent； of which so much is made； had been given； either tacitly or formally。 What would have been the result？ Evidently； the surrenders would have been reciprocal； no right would have been abandoned without the receipt of an equivalent in exchange。 We thus come back to equality again； the sine qua non of appropriation； so that； after having justified property by universal consent； that is； by equality； we are obliged to justify the inequality of conditions by property。 Never shall we extricate ourselves from this dilemma。 Indeed； if； in the terms of the social compact； property has equality for its condition； at the moment when equality ceases to exist； the compact is broken and all property becomes usurpation。 We gain nothing； then； by this pretended consent of mankind。
％ 3。Prescri