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.