Note 218 — Chapter V · JUSTICE

It certainly requires a considerable strain to bring the ‘right of First Discovery’ under the notion of ‘right to the produce of one’s labour.’ Hence Locke and others have found it necessary to suppose, as the ultimate justification of the former right, ‘a tacit consent’ of mankind in general that all things previously unappropriated shall belong to the first appropriator. But this must be admitted to be a rather desperate device of ethico-political construction: on account of the fatal facility with which it may be used to justify almost any arbitrariness in positive law.