[Footnote 1:  Scribner’s Magazine, vol.  XV, p. 653.]

Now, property is but the creature of law; and that is to say, in those of our States which have no common law, of statute.  Jurists and communists are alike agreed on this.  “Property is robbery,” said Proudhon; property is but the creature of law, all English jurists admit.  It is, of course, possible to conceive of a social system which recognizes no right of property, or one which makes all property belong to the community, or a middle ground which admits the institution, but holds that every individual holds property subject to the state’s, that is, the organized community’s, regulation and control.  A convenient term for this state of affairs to which, perhaps, in our statutes, we are approaching, is “allowable socialism”; private property is recognized, but its use is regulated.  In England they call it “gas-and-water socialism”; but this term, though picturesque, is not sufficiently comprehensive, relating, as it does, only to municipal activities.  There is a third variety, the latest and perhaps the most intelligent of all, that believed in by leading modern German and American socialists, which we will call nationalism—­the nationalization or municipalization of productive industry—­the science of this doctrine being that private property may exist in all personal belongings, articles of pleasure, or domestic necessity, but not in lands, mines, works, or other instrumentalities used for the further production of wealth.

Whatever the future may bring, we must start with the institution of private property recognized to its fullest extent.  It is expressly guaranteed in our Federal Constitution, as for the matter of that it was also in Magna Charta, as clearly as the right to liberty, and usually in the very same clause.  Not only that, but when we adopted our first State constitutions, from 1776 to 1788, and the Federal Constitution in 1789, every one of them made express guarantee of this right.  One or two, following the lead of Massachusetts and Virginia, recognized equality also, or, at least, equality by birth and before the law; but without exception property was expressly recognized as one of two leading constitutional rights, and even in some States, like Virginia, it was termed a natural right.  The same thing is true of the Massachusetts Bill of Rights and in the Federal Fifth Amendment, though it is significant that the Declaration of Independence omits the word property, and only mentions among unalienable rights, life, liberty, and the pursuit of happiness—­which some courts have held to include private property.[1] Nevertheless, under our constitutions to-day, the right is not only doubly, but even triply, guaranteed; that is to say, by all State constitutions against State action; by the Federal Constitution against national action; and finally, by the Federal government in the Fourteenth Amendment as against State action also.  This is the reason why, in any case affecting a cardinal liberty or property right, a litigant may carry his case not only through the State courts, which have sole jurisdiction of ordinary business and domestic matters, but to the courts of the United States as well.