58 ARGUMENT OF THE UNITED STATES. 



is another. As has already been pointed out, the absolute necessities 

 of rude society may be satisfied by making society itself the universal 

 owner; which is the condition actually presented by some very early 

 communities; but individual ownership is the condition found in all 

 societies which have reached any considerable degree of advancement. 

 This matter of the form of th.a institution is, of course, determined in 

 a municipal society by its laws ; and these are in turn determined by 

 its morality. Ownership is awarded in accordance with the sense of 

 right and fitness which prevails among the members of society. It is 

 this which determines its will, and its will is its law. 



In seeking for the moral grounds upon which to make its award of 

 the rights of private ownership that which is first and universally ac- 

 cepted is what maybe called desert. " Suum cuique tribueref lies as an 

 original conception at the basis of all jurisprudence. In respect to land 

 indeed, an original grant may be required from the community or the 

 sovereign; but whatever a man produces by his labor, or saves by the 

 practice of abstinence, is justly reserved for his exclusive use and benefit. 

 This is the principle upon which the right of private property is by the 

 great majority of jurists placed; and it is often, somewhat incorrectly 

 perhaps, made the foundation of the institution of property itself. In 

 our view a distinction is observable between the institution itself and 

 the form which it assumes. The first springs from the necessity of 

 peace and order, society not being possible without it; but when private 

 property, which is also the result of another necessity, namely, the de- 

 mands of civilized life, becomes the form which the institution assumes, 

 the principle of desert comes into operation to govern the award. 



OWNERSHIP NOT ABSOLUTE. 



But what is the extent of the dominion which is thus given by the 

 law of nature to the owner of property? This question has much im- 

 portance in the present discussion and deserves a deliberate considera- 

 tion. 



In the common apprehension the title of the possessor is absolute, 

 and enables him to deal with his property as he pleases, and even, if 

 he pleases, to destroy it. This notion, sufficiently accurate for most of 

 the common purposes of life, and for all controversies between man and 

 man, is very far from being true. No one, indeed, would assert that 

 he had a moral right to waste or destroy any useful thing; but this 

 limitation of power is, perhaps, commonly viewed as a mere moral or 



