The Rights to the uses of Natural Media
Here in full is Chapter XI of Justice
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
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
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 fellowpassengers
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'h6te, 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
"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.
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.
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 defence, 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."*
* 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."*
* 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."*
* Ib., 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
Defence 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 labour,
or by labour paid for, or by ancestral labour; or else the ve-lue 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 labour 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.
How has he got there?
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
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.