Another important class of rights of property, in which the objects appropriated are not material things, are those rights to non-imitation, by which the results of intellectual labour are protected; whether these results are of the nature of technical invention, secured by patent, or literary products secured by copyright. As I have already said, though the legal interference with the actions of other men required to protect these rights is of a very peculiar kind, it seems undoubtedly reasonable, on the individualistic principle, so far as it is indispensable for giving the needed security, and limited to results at which the persons prohibited from imitation could not possibly have arrived by independent effort. But in the case, at least, of patents, it is very difficult to prove this impossibility. "It is almost always within the limits of human probability that in protecting a technical invention we may be preventing the use of a similar invention which might otherwise have been made by some one else; indeed such coincidence of inventions may even be said to be positively probable, wherever several ingenious minds are simultaneously pondering over the best method of meeting some definite technical need." Hence patents generally must, I think, be regarded as involving some chance of encroachment on the opportunities of others, which must be supposed to increase as time goes on; and this seems a valid argument, from an individualistic point of view, for limiting the duration of this kind of property. In the case, however, of literary products, this difficulty is to a great extent absent; it arises only, if I may so say, on the margin of the right, in considering the exact degree of resemblance which ought to be held to constitute an infringement of copyright. There can be no encroachment on the opportunities of others in a prohibition to reprint Hamlet; though it may be doubtful how far, if the copyright of Shakespeare's plays were in force, another treatment of the same plot ought to be interfered with. For this reason, any limitation of the duration of copyright to a period falling short of the author's life is not defensible on individualistic

1 Principles of Political Economy, book iii. chap. iv. sect. 6.

principles; and even the limitation actually established in our own and other systems of law, by which copyright ceases at a certain time after the author's death, requires a special utilitarian justification: since the mere fact that the utility produced by a certain kind of labour cannot be adequately protected without legally prohibiting imitation, is not in itself a reason why such utilities should be less completely or permanently at the disposal of the labourer.

There are several other kinds of rights besides those discussed, which are commonly regarded as rights of property. Indeed, for ordinary purposes, any right that is both valuable and transferable may properly be so regarded, as being substantially equivalent to a certain amount of material wealth. Of these the most important class-and the only class, besides those already mentioned, that would exist under a strictly individualistic system-are the rights arising out of contract, to be discussed in the next chapter; among which debts of money are the most important. It should be further observed that, from an economic point of view, we may properly count as a part of a man's wealth a habit or tendency of action on the part of others which is in no way protected by law: as (e.g.) the so-called "goodwill" of a business, which is to a certain extent transferable, and therefore saleable. The only political question of importance that arises with regard to this species of private wealth is how far Government can rightfully diminish or destroy it without compensation, by some action otherwise legitimate.1

§ 6. Hitherto I have been treating of things that have not yet been appropriated. Whatever has once become property usually continues in this condition, so long as it has any value; being transferred, as we have seen, by sale or gift during life, or through inheritance at death. In exceptional cases, however, it may happen that what A has thrown away as useless may be thought useful by B; if this is the case, it is obvious that B should be allowed to appropriate it. We have now completed our survey of the chief modes 1 See Chap. xii.

of legally acquiring rights of property,-apart from transfer, by consent, and succession through bequest or intestate inheritance, with which the two following chapters will be concerned. But an important question still remains. Suppose a man is found dealing with a thing as his own without being able to prove that he has ever legally acquired property in it: what is to be his legal position? When we consider the numerous ways in which evidence of legal title may accidentally fail, it becomes evident that, for the sake of peace and security, the actual possessor of anything must be recognised as having the rights of a proprietor, unless there is positive evidence to show that it legally belongs to some other person or has been wrongfully withdrawn from public use. And, for the sake of security, to free men from the apprehension of unknown claims at any time arising, it is necessary to go further, and recognise the claim of ancient bona fide possession, even against a title of a different kind, after a certain interval of time has elapsed during which no assertion of this other title has been put forward. How this limit of time should be defined cannot be precisely determined by general considerations: we can only say that an interval should be taken, sufficiently long to leave ample time for the assertion of claims in ordinary cases, but not longer than is required for this purpose.

So far I have supposed the possession to be bona fide. Generally speaking, this condition should be strictly maintained, since there is no sufficient reason for ever putting an end to the insecurity of a consciously wrongful holder of property if such a person desires the peace of an honest man, he should confess and repair his wrong. Only sometimes after revolutions or civil disorders even ill-gotten gains have to be guaranteed to the possessors for fear of too widespread apprehension leading to a renewal of the disorder.

NOTE. The difficult question whether a good title should ever be allowed to arise by transfer out of a bad one-as in the case of an innocent purchaser of stolen property-will be discussed in a subsequent chapter.

CHAPTER VI

CONTRACT.

§ 1. IN a summary view of the civil order of society, as constituted in accordance with the individualistic ideal, performance of contract presents itself as the chief positive element, protection of life and property being the chief negative element. Withdraw contract-suppose that no one can count upon any one else fulfilling an engagement—and the members of a human community are atoms that cannot effectively combine; the complex co-operation and division of employments that are the essential characteristics of modern industry cannot be introduced among such beings. Suppose contracts freely made and effectively sanctioned, and the most elaborate social organisation becomes possible, at least in a society of such human beings as the individualistic theory contemplates gifted with mature reason, and governed by enlightened self-interest. Of such beings it is

prima facie plausible to say that, when once their respective relations to the surrounding material world have been determined so as to prevent mutual encroachment and secure to each the fruits of his industry, the remainder of their positive mutual rights and obligations ought to depend entirely on that coincidence of their free choices, which we call contract. Thoroughgoing individualists would even include the rights corresponding to governmental services, and the obligations to render services to Government, which we shall have to consider later: only in this latter case the contract is tacit. According

to this view, an enlightened Englishman is a person who

resists the

"Temptations

To belong to other nations,"

because the Government of his country gives him a fairly good bargain in the way of governmental services, including enjoyment of public property; in return for which advantages he has tacitly undertaken to pay the taxes that Parliament determines, serve on a jury if required, become a special constable if called upon in case of a riot, and otherwise render to Government such services as the law enjoins. This doctrine I do not now examine; I only refer to it to show the far-reaching importance of the notion of contract in the individualistic view of the organisation of society.

What we have now to do is to discuss the chief conditions by which the legal enforcement of ordinary civil contract has to be restricted, in order that the function assigned to it in the individualistic ideal of society may be performed most effectively, and with least attendant mischief. But, before we proceed to this, we must notice an ambiguity in the meaning of the term contract; which, from the jurist's point of view, is of fundamental importance. In its widest sense the (legal) term contract denotes any act in which there is a concurrence of two or more wills in producing a modification of the legal rights of the parties concerned." 1 It includes, therefore, those transfers by consent of property in material things, of which we took note in the preceding chapter; which, of course, affect not only the mutual legal relations of the contracting individuals but their relations to other members of the community. "Thus, if a man goes into a shop and buys a watch for ready money, a contract has taken place. The watchmaker and his customer have united in a concordant expression of will, and the result has affected once for all their legal rights." Previously to the transaction all other members of the com

1 This quotation, and those which follow in this section, are taken from Professor Holland's Jurisprudence, chap. xii.