ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 171 



anything that lie can be permitted to destroy it? Surely that is not 

 necessary. 



The President. JJti et abuti, say the Eomans. 



Mr. Carter. Yes, uti et abuti, so that a man has power not only to 

 use, but abuse. It is given to us to use; it is not given to us to abuse 

 and destroy. We have no right to do that. Property is sometimes 

 said, in municipal law, to be regarded as absolute. If a man chooses 

 to throw away a bushel of wheat, there is nobody to call him to 

 account. The state does not call him to account. It does not do that, 

 because the probability that such a thing will be done is extremely 

 remote. We can saiely rely upon the selhsh element in human nature 

 to prevent such action on any considerable scale. But suppose it was 

 a common thing, and likely to occur, would the laws be silent about it 

 then? By no means. I think I have some citations upon that very 

 point. I will read from a writer of admitted authority, and that is 

 Ahrens. I read from page 97 of our printed argument: 



The definitious of tlie riolit of propovty given by positive laws oenerally concede to 

 the owner the power to dispose of liis object in an ahnost absolnte manner, to use 

 and abuse it, and even through caprice to destroy it; but this arbitrary power is not 

 in keeping with natural law, and positive legislation, obedient to the voice of com- 

 mon sense and reason in the interest of society, has been obliged itself to establish 

 numerous restrictions, which, examined from a philosophic view of law, are the 

 result of rational principles to which the right of property and its exercise are sub- 

 jected. 



Tlie principles which govern socially the right of property relate to substance and 

 to form. 



I. As to substunce, the following rules may be established: 



1. Property exists for a rational purpose and for a rational use; it is destined to sat- 

 isfy the various needs of human life; consequently, all arbitrary abuse, all arbitrary 

 destruction, are contrary to right (droit) and should be prohibited by law (loi). But 

 to avoid giving a false extension to this principle, it is important to recall to mind 

 that, according to personal rights, that which is committed within the sphere of 

 private life and of that of the family does not come under the application of public 

 law. It is necessary, therefore, that the abuse be public in order that the law may 

 reach it. It belongs to the legislations regulating the various kinds of agricultural, 

 industrial, and connuereial property, as well as to penal legislation, to determine the 

 abuses which it is important to protect; and, in reality, legislations as well as police 

 laws, have always specified a certain number of cases of abuses. Besides, all abusive 

 usage is hurtful to society, because it is for the public interest that the object should 

 give the owner the advantages or the services it admits. 



He refers also to the occasion of a debate upon the adoption of the 

 French Civil Code, and in respect to article 544, which defined property; 

 in which Napoleon expressed energetically the necessity of suppress- 

 ing abuses, in this language: 



The abuse of property, said he, should be suppressed every time it becomes hurt- 

 ful to society. Thus, it is not allowed to cut down unripe grain, to pull up famous 

 grapevines. I would not suffer that an individual should smite with sterility 20 

 leagues of ground in a grain-bearing department, in order to make for himself a park 

 thereof. The right of abuse does not extend so far as to deprive a people of its 

 sustenance. 



All this supports the views which I am endeavoring to present to the 

 Tribunal. The definition of i:)roperty does concede formally to the 

 individual the right to abuse it, a right to destroy it. It concedes the 

 power — I will not say it concedes the right; for it does not concede the 

 right. On the contrary, legislation in a thousand forms is aimed 

 against unnecessary destruction of property; and wherever there is 

 any considerable probability that individuals will abuse the right of 

 property, the law will step in to repress it. 



The law of nature, the philosophy upon which all law is founded, 

 must necessarily preserve property, and apply, wherever it may be 



