Chapter XI — The Rights to the use of
Natural Media
§ 49. A man may be entirely uninjured
in body by the actions of fellow-men, and he may be
entirely unimpeded in his movements by them, and he may
yet be prevented from carrying on the activities needful
for maintenance of life, by traversing his relations to
the physical environment on which his life depends. It
is, indeed, alleged that certain of these natural
agencies cannot be removed from the state of common
possession. Thus we read:
"Some things are by nature itself incapable
of appropriation, so that they cannot be brought under
the power of any one. These got the name of res communes
by the Roman law; and were defined, things the property
of which belongs to no person, but the use to all. Thus,
the light, the air, running water, etc., are so adapted
to the common use of mankind, that no individual can
acquire a property in them, or deprive others of their
use." (An Institute of the Law of Scotland, by
John Erskine (ed. Macallan), i., 196.)
But though light and air cannot be
monopolized, the distribution of them may be interfered
with by one man to the partial deprivation of another man
— may be so interfered with as to inflict serious
injury upon him.
No interference of this kind is possible
without a breach of the law of equal freedom. The
habitual interception of light by one person in such way
that another person is habitually deprived of an equal
share, implies disregard of the principle that the
liberty of each is limited by the like liberties of all;
and the like is true if free access to air is
prevented.
Under the same general head there must,
however, by an unusual extension of meaning, be here
included something which admits of appropriation —
the surface of the Earth. This as forming part of the
physical environment, seems necessarily to be included
among the media of which the use may be claimed under the
law of equal freedom. The Earth's surface cannot be
denied to any one absolutely, without rendering
life-sustaining activities impracticable. In the absence
of standing-ground he can do nothing; and hence it
appears to be a corollary from the law of equal freedom,
interpreted with strictness, that the Earth's surface may
not be appropriated absolutely by individuals, but may be
occupied by them only in such manner as recognizes
ultimate ownership by other men; that is — by
society at large.
Concerning the ethical and legal
recognitions of these claims to the uses of media, not
very much has to be said: only the last demands much
attention. We will look at each of them in
succession.
§ 50. In the earliest stages, while
yet urban life had not commenced, no serious obstruction
of one man's light by another man could well take place.
In encampments of savages, and in the villages of
agricultural tribes, no one was led, in pursuit of his
ends, to overshadow the habitation of his neighbor.
Indeed, the structures and relative positions of
habitations made such aggressions almost
impracticable.
In later times, when towns had grown up, it
was unlikely that much respect would forthwith be paid by
men to the claims of their neighbors in respect of light.
During stages of social evolution in which the rights to
life and liberty were little regarded, such comparatively
trivial trespasses as were committed by those who built
houses close in front of others' houses, were not likely
to attract much notice, considered either as moral
transgressions or legal wrongs. The narrow, dark streets
of ancient continental cities, in common with the courts
and alleys characterizing the older parts of our own
towns imply that in the days when they were built the
shutting out by one man of another man's share of sun and
sky was not thought an offence. And, indeed, it may
reasonably be held that recognition of such an offence
was in those days impracticable; since, in walled towns,
the crowding of houses became a necessity.
In modern times, however, there has arisen
the perception that the natural distribution of light may
not be interfered with. Though the law which forbids the
building of walls, houses, or other edifices of certain
heights, within prescribed distances from existing
houses, does not absolutely negative the intercepting of
light; yet it negatives the intercepting of it to serious
degrees, and seeks to compromise the claims of adjacent
owners as fairly as seems practicable.
That is to say, this corollary from the law
of equal freedom, if it has not come to be overtly
asserted, has come to be tacitly recognized.
§ 51. To some extent interference with
the supply of light involves interference with the supply
of air; and, by interdicting the one, some interdict is,
by implication placed on the other. But the claim to use
of the air, though it has been recognized by English law
in the case of windmills, is less definitely established:
probably because only small evils have been caused by
obstructions.
There has, however, risen into definite
recognition the claim to unpolluted air. Though acts of
one man which may diminish the supply of air to another
man, have not come to be distinctly classed as wrong; yet
acts which vitiate the quality of his air are in modern
times regarded as offences—offences for which there
are in some cases moral reprobations only, and in other
cases legal penalties. In some measure all are severally
obliged, by their own respiration, to vitiate the air
respired by others, where they are in proximity. It needs
but to walk a little distance behind one who is smoking,
to perceive how widely diffused are the exhalations from
each person's lungs; and to what an extent, therefore,
those who are adjacent, especially indoors, are compelled
to breathe the air that has already been taken in and
sent out time after time. But since this vitiation of air
is mutual, it cannot constitute aggression. Aggression
occurs only when vitiation by one, or some, has to be
borne by others who do not take like shares in the
vitiation; as often happens in railway carriages, where
men who think themselves gentlemen smoke in other places
than those provided for smokers: perhaps getting from
fellow-passengers a nominal, though not a real, consent,
and careless of the permanent nuisance entailed on those
who afterwards travel in compartments reeking with stale
tobacco-smoke. Beyond the recognition of this by
right-thinking persons as morally improper, it is
forbidden as improper by railway regulations; and, in
virtue of by-laws, may bring punishment by fine.
Passing from instances of this kind to
instances of a graver kind, we have to note the
interdicts against various nuisances — stenches
resulting from certain businesses carried on near at
hand, injurious fumes such as those from chemical works,
and smoke proceeding from large chimneys. Legislation
which forbids the acts causing such nuisances, implies
the right of each citizen to unpolluted air.
Under this same head we may conveniently
include another kind of trespass to which the surrounding
medium is instrumental. I refer to the production of
sounds of a disturbing kind. There are small and large
trespasses of this class. For one who, at a table
d'hote, speaks so loudly as to interfere with the
conversation of others, and for those who, during the
performance at a theatre or concert, persist in
distracting the attention of auditors around by talking,
there is reprobation, if nothing more: their acts are
condemned as contrary to good manners, that is, good
morals, for the one is a part of the other. And then when
inflictions of this kind are public, or continuous, or
both — as in the case of street-music and
especially bad street-music, or as in the case of loud
noises proceeding from factories, or as in the case of
church bells rung at early hours, the aggression has come
to be legally recognized as such and forbidden under
penalty: not as yet sufficiently recognized, however, as
is shown in the case of railway whistles at central
stations, which are allowed superfluously to disturb tens
of thousands of people all through the night, and often
to do serious injury to invalids.
Thus in respect of the uses of the
atmosphere, the liberty of each limited only by the like
liberties of all, though not overtly asserted, has come
to be tacitly asserted; in large measure ethically, and
in a considerable degree legally.
§ 52. The state of things brought
about by civilization does not hinder ready acceptance of
the corollaries thus far drawn; but rather clears the way
for acceptance of them. Though in the days when
cannibalism was common and victims were frequently
sacrificed to the gods, assertion of the right to life
might have been received with demur, yet the ideas and
practices of those days have left no such results as
stand in the way of unbiased judgments. Though during
times when slavery and serfdom wore deeply organized in
the social fabric an assertion of the right to liberty
would have roused violent opposition, yet at the present
time, among ourselves at least, there exists no idea,
sentiment, or usage, at variance with the conclusion that
each man is free to use his limbs and move about where he
pleases. And similarly with respect to the environment.
Such small interferences with others' supplies of light
and air as have been bequeathed in the structures of old
towns and such others as smoking fires entail, do not
appreciably hinder acceptance of the proposition that men
have equal claims to uses of the media in which all are
immersed. But the proposition that men have equal claims
to the use of that remaining portion of the environment
— hardly to be called a medium — on which all
stand and by the products of which all live, is
antagonized by ideas and arrangements descending to us
from the past. These ideas and arrangements arose when
considerations of equity did not affect land tenure any
more than they affected the tenure of men as slaves or
serfs; and they now make acceptance of the proposition
difficult. If, while possessing those ethical sentiments
which social discipline has now produced, men stood in
possession of a territory not yet individually portioned
out, they would no more hesitate to assert equality of
their claims to the land than they would hesitate to
assert equality of their claims to light and air. But now
that long-standing appropriation, continued culture, as
well as sales and purchases, have complicated matters,
the dictum of absolute ethics, incongruous with the state
of things produced, is apt to be denied altogether.
Before asking how, under these circumstances, we must
decide, let us glance at some past phases of land
tenure.
Partly because in early stages of
agriculture, land, soon exhausted, soon ceases to be
worth occupying, it has been the custom with
little-civilized and semi-civilized peoples, for
individuals to abandon after a time the tracts they have
cleared, and to clear others. Causes aside, however, the
fact is that in early stages private ownership of land is
unknown: only the usufruct belongs to the cultivator,
while the land itself is tacitly regarded as the property
of the tribe. It is thus now with the Sumatrans and
others, and it was thus with our own ancestors: the
members of the Mark, while they severally owned the
products of the areas they respectively cultivated, did
not own the areas themselves. Though it may be said that
at first they were members of the same family, gens, or
clan, and that the ownership of each tract was private
ownership in so far as the tract belonged to a cluster of
relations; yet since the same kind of tenure continued
after the population of the Mark had come to include men
who were unrelated to the rest, ownership of the tract by
the community and not by individuals became an
established arrangement. This primitive condition will be
clearly understood after contemplating the case of the
Russians, among whom it has but partially passed
away.
"The village lands were held in common by
all the members of the association [mir]; the individual
only possessed his harvest, and the dvor or inclosure
immediately surrounding his house. This primitive
condition of property, existing in Russia up to the
present day, was once common to all European peoples."
(The History of Russia, A. Rambaud, trans. by Lang, vol.
i., p. 45.)
With this let me join a number of extracts
from Wallace's Russia, telling us of the original state
of things and of the subsequent states. After noting the
fact that while the Don Cossacks were purely nomadic
— "agriculture was prohibited on pain of death,"
apparently because it interfered with hunting and
cattle-breeding, he says: —
"Each Cossack who wished to raise a crop
ploughed and sowed wherever he thought fit, and retained
as long as he chose the land thus appropriated; and when
the soil began to show signs of exhaustion, he abandoned
his plot and ploughed elsewhere. As the number of
agriculturists increased, quarrels frequently arose.
Still worse evils appeared when markets were created in
the vicinity. In some stanitzas [Cossack villages] the
richer families appropriated enormous quantities of the
common land by using several teams of oxen, or by hiring
peasants in the nearest villages to come and plough for
them; and instead of abandoning the land after raising
two or three crops they retained possession of it. Thus
the whole of the arable land, or at least the best parts
of it, became actually, if not legally, the private
property of a few families." (Ib. ii. 86.)
Then he explains that as a consequence of
something like a revolution:
"In accordance with their [the landless
members of the community's] demands the appropriated land
was confiscated by the Commune and the system of
periodical distributions … was introduced. By this
system each male adult possesses a share of the land."
(Ib. ii. 87.)
On the Steppes "a plot of land is commonly
cultivated for only three or four years in succession. It
is then abandoned for at least double that period, and
the cultivators remove to some other portion of the
communal territory. … Under such circumstances the
principle of private property in the land is not likely
to strike root; each family insists on possessing a
certain quantity rather than a certain plot of land, and
contents itself with a right of usufruct, whilst the
right of property remains in the hands of the Commune."
(Ib. ii. 91.)
But in the central and more advanced
districts this early practice has become modified, though
without destroying the essential character of the
tenure.
"According to this system [the three-field
system] the cultivators do not migrate periodically from
one part of the communal territory to another, but till
always the same fields and are obliged to manure the
plots which they occupy. … Though the three-field
system has been in use for many generations in the
central provinces, the communal principle, with its
periodical reallotment of the land, still remains
intact." (Ib. ii. 92.)
Such facts, and numerous other such facts,
put beyond question the conclusion that before the
progress of social organization changed the relations of
individuals to the soil, that relation was one of joint
ownership and not one of individual ownership.
How was this relation changed? How only
could it be changed? Certainly not by unforced consent.
It cannot be supposed that all, or some, of the members
of the community willingly surrendered their respective
claims. Crime now and again caused loss of an
individual's share in the joint ownership; but this must
have left the relations of the rest to the soil
unchanged. A kindred result might have been entailed by
debt, were it not that debt implies a creditor; and while
it is scarcely supposable that the creditor could be the
community as a whole, indebtedness to any individual of
it would not empower the debtor to transfer in payment
something of which he was not individually possessed, and
which could not be individually received. Probably
elsewhere there came into play the cause described as
having operated in Russia, where some, cultivating larger
areas than others, accumulated wealth and consequent
power, and extra possessions; but, as is implied by the
fact that in Russia this led to a revolution and
reinstitution of the original state, the process was
evidently there, and probably elsewhere, regarded as
aggressive. Obviously the chief cause must have been the
exercise of direct or indirect force: sometimes internal
but chiefly external. Disputes and fights within the
community, leading to predominance (achieved in some
cases by possession of fortified houses), prepared the
way for partial usurpations. When, as among the
Suanetians, we have a still extant case in which every
family in a village has its tower of defense, we may well
understand how the intestine feuds in early communities
commonly brought about individual supremacies, and how
these ended in the establishment of special claims upon
the land subordinating the general claims.
But conquest from without has everywhere
been chiefly instrumental in superseding communal
proprietorship by individual proprietorship. It is not to
be supposed that in times when captive men were made
slaves and women appropriated as spoils of war, much
respect was paid to pre-existing ownership of the soil.
The old English buccaneers who, in their descents on the
coast, slew priests at the altars, set fire to churches,
and massacred the people who had taken refuge in them,
would have been very incomprehensible beings had they
recognized the landownership of such as survived. When
the pirate Danes, who in later days ascended the rivers,
had burned the homesteads they came upon, slaughtered the
men, violated the women, tossed children on pikes or sold
them in the market-place, they must have undergone a
miraculous transformation had they thereafter inquired to
whom the Marks belonged and admitted the titles of their
victims to them. And similarly when, two centuries later,
after constant internal wars had already produced
military rulers maintaining quasi-feudal claims over
occupiers of lands, there came the invading Normans, the
right of conquest once more over-rode such kinds of
possession as had grown up, and still further merged
communal proprietorship in that kind of individual
proprietorship which characterized feudalism. Victory,
which gives unqualified power over the defeated and their
belongings, is followed, according to the nature of the
race, by the assertion of universal ownership, more or
less qualified according to the dictates of policy. While
in some cases, as in Dahomey, there results absolute
monopoly by the king, not only of the land but of
everything else, there results in other cases, as there
resulted in England, supreme ownership by the king with
recognized sub-ownerships and sub-sub-ownerships of
nobles and their vassals holding the land one under
another, on condition of military service. supreme
ownership being by implication vested in the crown.
Both the original state and the subsequent
states have left their traces in existing land laws.
There are many local rights which date from a time when
"private property in land, as we now understand it, was a
struggling novelty."18
18 The Land Laws, by Sir
Fredk. Pollock, Bart., p. 2.
"The people who exercise rights of common
exercise them by a title which, if we could trace it all
the way back, is far more ancient than the lord's. Their
rights are those which belonged to the members of the
village community long before manors and lords of the
manor were heard of."19
19 Ibid, p. 6.
And any one who observes what small
tenderness for the rights of commoners is shown in the
obtainment of Inclosure Acts, even in our own day, will
be credulous indeed if he thinks that in ruder times the
lapse of communal right into private rights was equitably
effected. The private ownership, however, was habitually
incomplete; since it was subject to the claims of the
overlord, and through him, again, to those of the
over-over-lord: the implication being that the ownership
was subordinate to that of the head of the community.
"No absolute ownership of land is
recognized by our law books except in the Crown. All
lands are supposed to be held immediately, or mediately,
of the Crown, though no rent or services may be payable,
and no grant from the Crown on
record."20
20 Ibid, p. 12
And that this conception of landownership
survives, alike in theory and in practice, to the present
time is illustrated by the fact that year by year State
authority is given for appropriating land for public
purposes, after making due compensation to existing
holders. Though it may be replied that this claim of the
State to supreme landownership is but a part of its claim
to supreme ownership in general, since it assumes the
right to take anything on giving compensation; yet the
first is an habitually enforced claim, while the other is
but a nominal claim not enforced; as we see in the
purchase of pictures for the nation, to effect which the
State enters into competition with private buyers, and
may or may not succeed.
It remains only to point out that the
political changes which have slowly replaced the supreme
power of the monarch by the supreme power of the people,
have, by implication, replaced the monarch's supreme
ownership of the land by the people's supreme ownership
of the land. If the representative body has practically
inherited the governmental powers which in past times
vested in the king, it has at the same time inherited
that ultimate proprietorship of the soil which in past
times vested in him. And since the representative body is
but the agent of the community, this ultimate
proprietorship now vests in the community. Nor is this
denied by landowners themselves. The report issued in
December, 1889, by the council of "The Liberty and
Property Defense League," on which sit several Peers and
two judges, yields proof. After saying that the essential
principle of their organization, "based upon recorded
experience," is a distrust of "officialism, imperial or
municipal," the council go on to say that:—
"This principle applied to the case of land
clearly points to individual ownership, qualified by
State suzerainty. … The land can of course be
'resumed' on payment of full compensation and managed by
the 'people,' if they so will it."
And the badness of the required system of
administration is the only reason urged for maintaining
the existing system of landholding: the supreme ownership
of the community being avowedly recognized. So that
whereas, in early stages, along with the freedom of each
man, there went joint ownership of the soil by the body
of men; and whereas, during the long periods of that
militant activity by which small communities were
consolidated into great ones, there simultaneously
resulted loss of individual freedom and loss of
participation in landownership; there has, with the
decline of militancy and the growth of industrialism,
been a reacquirement of individual freedom and a
reacquirement of such participation in landownership as
is implied by a share in appointing the body by which the
land is now held. And the implication is that the members
of the community, habitually exercising as they do,
through their representatives, the power of alienating
and using as they think well, any portion of the land,
may equitably appropriate and use, if they think fit, all
portions of the land. But since equity and daily custom
alike imply that existing holders of particular portions
of land may not be dispossessed without giving them in
return its fairly estimated value, it is also implied
that the wholesale resumption of the land by the
community can be justly effected only by wholesale
purchase of it. Were the direct exercise of ownership to
be resumed by the community without purchase, the
community would take, along with something which is its
own, an immensely greater amount of something which is
not its own. Even if we ignore those multitudinous
complications which, in the course of century after
century, have inextricably entangled men's claims,
theoretically considered—even if we reduce the case
to its simplest theoretical form; we must admit that all
which can be claimed for the community is the surface of
the country in its original unsubdued state. To all that
value given to it by clearing, breaking-up, prolonged
culture, fencing, draining, making roads, farm-buildings,
etc., constituting nearly all its value, the community
has no claim. This value has been given either by
personal labor, or by labor paid for, or by ancestral
labor; or else the value given to it in such ways has
been purchased by legitimately earned money. All this
value artificially given vests in existing owners, and
cannot without a gigantic robbery be taken from them. If,
during the many transactions which have brought about
existing landownership, there have been much violence and
much fraud, these have been small compared with the
violence and the fraud which the community would be
guilty of did it take possession, without paying for it,
of that artificial value, which the labor of nearly two
thousand years has given to the land.
§53. Reverting to the general topic of
the chapter-the rights to the uses of natural
media—it chiefly concerns us here to note the way
in which these rights have gradually acquired legislative
sanctions as societies have advanced to higher types.
At the beginning of the chapter we saw that
in modern times there have arisen legal assertions of
men's equal rights to the uses of light and air: no forms
of social organization or class interests having
appreciably hindered recognition of these corollaries
from the law of equal freedom. And we have just seen that
by implication, if not in any overt or conscious way,
there have in our days been recognized the equal rights
of all electors to supreme ownership of the inhabited
area-rights which, though latent, are asserted by every
Act of Parliament which alienates land. Though this right
to the use of the Earth, possessed by each citizen, is
traversed by established arrangements to so great an
extent as to be practically suspended; yet its existence
as an equitable claim cannot be denied without affirming
that expropriation by State decree is inequitable. The
right of an existing holder of land can be equitably
superseded, only if there exists a prior right of the
community at large; and this prior right of the community
at large consists of the sum of the individual rights of
its members.
NOTE. Various considerations touching this
vexed question of landownership, which would occupy too
much space if included here, I have included in Appendix
B.
Let us take breath and gather our wits. It is like going
through a St. Gothard tunnel. Here we are on the other
side, sure enough! But how did we get there?
Mr. Spencer brought us in, asserting the law of equal
freedom as "an ultimate ethical principle, having an
authority transcending every other"; declaring that "rights
truly so called are corollaries from the law of equal
freedom, and what are falsely called rights are not
deducible from it."
He brings us out, with a confused but unmistakable
assertion that the freedom to use land belongs only to the
small class of landlords; with an assertion of the
strongest kind of their right to deprive all other men of
freedom to use the earth until they are paid for it.
Has he shown that the law of equal freedom gives freedom
to the use of land only to a few men and denies it to all
other men? Has he shown that the right so called of the
small class of landowners to the exclusive use of land is a
true right and not a false right, by deducing it from the
law of equal freedom? Has he met one of the conditions
called for by his elaborate derivation and formula of
justice in the preceding chapters of this very book? Has he
shown the invalidity of a single one of the deductions by
which he proved in Social Statics that justice
does not permit private property in land?
It is worth while to examine this chapter in detail. Its
argument is divisible into two parts — (1) as to the
right to the use of light, air, etc., and (2) as to the
right to the use of land. Let us consider the one part
before passing to the other.