Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

10 Tg This is distinguished from sovereignty or "imperium, the rule over all individuals by the prince." Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.fa. 8, 8-9 (1927). "But early Teutonic Law, the law of the Anglo-Saxons, Franks, Visigoths, Lombards and other tribes, makes no such distinction; and the state long continued to be the prince's estate so that even in the 18th century the Prince of Hesse could sell his subjects as soldiers to the King of England." Id. at 9.

11 "Tenant in fee simple is he which hath lands or tenements to hold to him and his heires for ever. As it is called in Latin, feodum simplex, for feodum is the same that inheritance is, and simplex is as much as to say, lawfull or pure." SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND 1 (1832). Synonyms for this include "fee" and "fee simple absolute." 12 A.M. Honore, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE: A COLLABORATIVE WORK 107, 108 (A.G. Guest ed., 1961). 13 Id.

14 See 2 RICHARD R. POWELL & PATRICK J. ROHAN, POWELL ON REAL PROPERTY 1 190(1) (1977) [hereinafter POWELL].

15 See EMIL DE LAVELEYE, PRIMITIVE PROPERTY 6 (G.R.L. Marriott trans., 1878). 16 See generally I WILLIAM BLACKSTONE, COMMENTARIES 2 (Oceana 1966) (1859).

17 H.H. Rumble, Limitations on the Use of Property, 5 VIRGINIA L. REv. 297, 301 (1918). "No question can be settled by a general appeal to the common law. That a given rule prevailed `at common law' does not necessarily mean that the same rule is law today even in the absence of legislation on the subject. One needs to know to what period the inquiry related. The common law was not and is not a fixed body of rules. It was not and is not the law of the Medes and Persians which altereth not." Id.

18 See Lawrence C. Becker, The Moral Basis of Property Rights, 22 Nomos 187, 190 (1980). 19 Macpherson, supra note 1, at 1. 20 See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 (1977) [hereinafter HORwITZ, ; MORTON J. HORwITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 (1992) [hereinafter HORWITZ, 1870-1960]. 21 2 POWELL, supra note 14, Para 190(1).

22 See 5A POWELL, supra note 14,1 745 (emphasis added). 23 ROBERT LEO SMITH, ECOLOGY AND FIELD BIOLOGY 29 (1990). 24 EUGENE P ODUM, ECOLOGY AND OUR ENDANGERED LIFE-SUPPORT SYSTEMS 13 (1989). 25 JOHN LOCKE, ESSAYS ON THE LAW OF NATURE 165 (W. von Leyden ed., 1954) [hereinafter LOCKE]. One basis for this natural instinct is "[c]oncerning morals or action, that is, the conformity to be found in the moral conduct of men and in the practice of social life." Id. at 166. 26 Id. at 179. Locke states that "truly, knowledge precedes general consent, for otherwise the same thing would at the same time be cause and effect, and the consent of all would give rise to the consent of all, a thing which is plainly absurd." Id. 27 See generally Jeanne Kay, Concepts of Nature in the Hebrew Bible, 10 ENV?L ETHICS 309 (1988). "The Hebrew Bible does not even have an equivalent for the generalized English word wilderness." Id. at 312 (emphasis added). 28 Exodus 16:10 (King James). "And it came to pass, as Aaron spake unto the whole congre