Mr. Spencer's carelessness
of thought is shown in the very opening sentence of this chapter on "The
Rights to the Uses of Natural Media":
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.
How?
To ordinary apprehension, the only way in
which men can be deprived of the use of "the physical environment on which
life depends" is either by such bodily injuries as killing, maiming, binding,
imprisoning, or by such restrictions on movement as have the threat of
bodily injury behind them, like the taboo among the South Sea Islanders,
or private property in land among us. Nor have the tyrants of the world,
much as they would have liked to, ever been able to find any other way.
Without condescending to explain, Mr. Spencer
goes on to quote Erskine to the effect that "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."
This again shows carelessness in apprehension
and statement. What Erskine really means is that the law does not, and
that because it cannot, give property in the substance of matter, so that
the molecules or atoms of which it is composed may be identified and reclaimed
through all changes in form or place; but that ownership can attach to
matter only in its relation to form or place. For instance, I buy today
a dog or a horse. I acquire in this purchase the ownership of what matter
is now, or at any time in the future may be, contained in the form of
this dog or horse, not the ownership of a certain amount of matter in whatever
form it may hereafter assume. That no law could give me, nor could I even
set up a claim to it, for it would be impossible for me to identify it.
For the matter which my dog or horse embodies for the moment, like the matter
of which my own frame is composed, is constantly passing from that form
to other forms. The only thing tangible to me or other men is this form.
And it is in this that ownership consists. If my dog eats your mutton-chop,
your property in the chop does not become property in the dog. If the law
gives you any action it is certainly not that of replevin.
The principle of the law that Erskine refers
to is thus stated by Blackstone (Chapter 2, Book II):
I cannot bring an action to recover possession of
a pool or other piece of water either by superficial measure for twenty
acres of water or by general description, as for a pond or a rivulet; but
I must bring my action for what lies at the bottom and call it twenty acres
of land covered with water. For water is a movable, wandering thing, and
must of necessity continue common by the law of nature, so that I can only
have a temporary, transient, usufructuary property; wherefore if a body of
water runs out of my pond into another man's I have no right to reclaim it.
But the land which that water covers is permanent, fixed and immovable, and
therefore in this I may have a certain substantial property, of which the
law will take notice and not of the other.
Now the comparatively rough distinctions that
are amply sufficient for the purposes of the lawyer are not always sufficient
for the purposes of the philosopher. If we analyze this principle of the
law, we see that no real distinction is made as to ownership between the
substance of water and the substance of land—that is to say, between the
more or less stable forms of matter of which the body of the universe consists.
The distinction is as to tangible form. I may bring an action for ice, which
is water that has assumed tangible form by the lowering of temperature,
or for water in barrels or bottles, which in another way gives it form.
And the real reason why, in an action for the possession of a body of water
I must describe it as land covered by water, is that it is the land which
holds the water in place and gives it form.
So, on the other hand, if a freshet or a water-burst
carry the fertile soil from my field into that of my neighbour, I can
no more reclaim it by action at law than I can reclaim the water that runs
out of my pond. Or if a volcanic convulsion were to shift the position of
a mineral deposit, it would cease to belong to one landowner and the other
would acquire legal possession. The legal result would be precisely the
same as the legal result of a change in a rivulet's course. In ruder times,
ere the art of surveying was so well developed as now, it was customary
to fix the boundaries of legal possession by natural objects deemed immovable,
such as mountains, ocean shores, rivers, etc., and in places where this
method has been retained changes in landmarks frequently change the ownership
of considerable bodies of land, as on the shifting banks of the lower Mississippi.
But our modern surveying takes for its basis latitude and longitude. And
this is the essential idea of landownership: It is the ownership, not of
certain atoms of matter, be they rock, soil, water or air, or of certain
forms of energy, such as heat, light or electricity, but the ownership of
a certain section of space and of all that may be therein contained.
Mr. Spencer is confusing two essentially different
ideas—the idea of substance and the idea of form or locality. In the one
sense nothing whatever may be owned—land no more than light or electricity.
In the other, all natural substances and powers may be owned—water, air,
light, heat or electricity, as truly as land. And they are owned, though,
since in our legal terminology space and its contents are known as land,
they must in law be described as land. Whoever, under our laws, acquires
ownership in land may deprive others of light, air, running water, etc.,
and does acquire a property in their use, which is frequently a tangible
element, and at times the only element in the value of an estate—as where
the purity of the air, the beauty of the view, the abundance of sunlight
which a favourable exposure gives, the presence of mineral springs, or the
access to streams, are elements in the price at which land can be sold or
rented.
In the next sentence we are told that "light
and air cannot be monopolized." But they are monopolized in the monopolization
of land, and this as effectually as any monopolizer could wish. It is
true that air and sunlight are not formally bought, sold and rented. But
why? Not that they could not be measured off and determined by metes and
bounds, but simply because they are to our physical constitutions inseparable
from land, so that whoever owns the land owns also the air it is bathed
in and the light that falls on it. Light and air are monopolized whenever
land is monopolized; and the exclusive use to them is bought and sold whenever
land is bought and sold.
It is not merely that, as the flying-machine
has not yet been perfected, the owner of land holds the means of access
to the air above it and the light that falls on it; it is that the owner
of land is the owner of such light and air, not merely virtually, but formally
and legally. And were the air-ship perfected, he would have the same legal
right to forbid trespass on his light and air, and to demand payment for
any use made of it or any passage through it, thousands of feet above the
surface, as he now has to forbid trespass on his ground or to demand payment
for any use of or any passage through what lies thousands of feet below
it. In English law, land does not mean merely the surface of the earth within
certain metes and bounds, but all that may be above and all that may be
below that surface; and under the same legal right by which the landowner
holds as his private property any certain part of the surface of the globe
he also holds the rocks and minerals below it and the air and the light
above it. As Blackstone says: "The word 'land' includes not only the face
of the earth, but everything under it or over it. … By the name of land everything
terrestrial will pass." The landowner is, in law as well as in fact, not
a mere surface-owner, but a universe-owner. And just as in some places landowners
sell the surface right, retaining mineral rights; or sell mineral rights,
retaining surface rights; or sell the right of way, retaining rights to
other use: so, where there is occasion, the right to use light and air may
be separated, in sales and purchases and title-deeds, from the right to
the use of the ground.
An invention which would make practicable
the use of light and air without possession of the surface, would at once
bring out the fact that, legally, they belong to landowners, just as subterranean
mining and the projection of underground railways have brought out the
fact that landowners are legal owners of all beneath the surface. In fact,
existing deeds furnish instances in which the real thing bought and sold,
though properly enough styled land in the conveyances, is not land at all
in the narrow meaning, but light and air, or the right to their use. To
cite a case: The city of Cleveland, O., some years since, desired to convert
the viaduct bridge over the Cuyahoga River into a swinging bridge. To do
this it was necessary that one end of the bridge should in its swing pass
for a short distance through the air over a strip of land belonging to a
private owner. The city of Cleveland had, therefore, to buy the right to
use this air, and I have before me a copy of the deed, executed on the 28th
of February, 1880, by which, in consideration of $9994.88, Meyers, Rouse
& Co. sell and convey to the city of Cleveland the right to swing such
bridge over a small area thirty-five feet above the ground. Of this estate
in the air the grantors describe themselves as holding a good and indefeasible
title in fee simple, with the right to bargain and sell the same. Were it
thirty-five hundred or thirty-five hundred thousand feet above the surface,
the legal right of ownership would be the same. For the ownership which
attaches to land under our laws is not to be really measured by linear
feet and inches, but by parallels of latitude and meridians of longitude,
starting from the centre of the earth and indefinitely extendible. And while
Meyers, Rouse & Co. have sold to the city of Cleveland a slice of their
air of perhaps fifteen feet in depth, they still retain the legal ownership
of all the air above it, and could demand toll of or refuse passage to any
flying-machine that should attempt to cross it.
The same lack of analytic power continues
to be shown by Mr. Spencer when he goes on to tell us that the equal rights
to the use of light and air, though not recognized in primitive stages, have,
in the course of social evolution, come to be completely or all but completely
recognized now. So far is this from being true, that in such countries
as England and the United States there is no recognition whatever of the
equal right to the use of light and air. To the list of interdictions which
he cites as recognitions of this equal right, he might as well have added
that of shying bricks through these media at passers-by. For where the interdictions
he mentions—of interceptions of light and air, of smoking in certain places,
of the maintenance of stenches and fumes, of the making of disturbing noises—are
not mere interdictions of certain species of assault; they are interdictions
based on and involved in the ownership of land.
Mr. Spencer might have seen this for himself,
where he speaks of "the law which forbids the building of walls, houses,
or other edifices within prescribed distances of other houses … and seeks
to compromise the claims of adjacent owners as fairly as seem practicable."
Owners of what? Why, owners of land. It is
only as an owner of land, or as the tenant of an owner of land, that under
our English law any one has a right to complain of the interception of light
and air by another landowner. The owner of land may intercept light and
air, may make noises and create stenches to any extent he pleases, provided
he infringes not the equal rights of other owners of land, for light and
air are considered by English law as what they truly are, so far as human
beings are concerned, appurtenances of land. No one in England, be he stranger
or native-born, has any legal right whatever to the use of English light
and English air, save as the owner or grantee of an owner of English land.
That even on the Queen's highways the public are deemed to have such rights
as against adjacent landholders I am not sure. Certain it is, that one
may travel for miles through the public roads, amid the finest scenery
in those countries, and find the view wantonly shut out by high and costly
walls, erected for the express purpose of intercepting the light, and crowned
on their tops with broken glass, to tear the clothes and cut the flesh of
any one who dares climb them to get such a view as the unintercepted light
would give.
The rights to the use of light, air and other
natural media are in truth as inseparable from the right to the use of
land as the bottom of that atmospheric ocean which surrounds our globe
is inseparable from the globe's surface; and the pretence of treating them
separately could spring only from Mr. Spencer's evident desire to confuse
the subject he is pretending to treat, to cover with a fog of words his
abandonment of a position incapable of refutation, and from the false assumption
that the liberty of each to the use of air and light, limited only by the
like liberty of all, is practically and legally recognized, to lead to the
still more preposterously false assumption that equal rights to the use
of land are also fully recognized.
But before examining this last assumption,
there is one form of it which he incidentally makes that is worth noticing—the
assumption that the equal right to personal liberty and freedom of movement
is already fully recognized.
It is a pity that Mr. Spencer had not intermitted
his studies of the Abors, the Bodas, the Creeks, the Dhimals, the Eghas,
and other queer people, to the end of the alphabet, of whom his later books
are as full as those of the pedants of the last century were of classical
quotations, and made some observations in his own country. They would have
saved him from the astounding statement that—
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.
The truth is, that instead of every one being
free in England "to use his limbs and move about where he pleases," there
is no part of the British Isles, even though it be wild moor, bleak deer-forest
or bare mountain-top, where a man is free to move about without permission
of the private owner, except it be the highroads, the public places, or
other strips and spots of land deemed the property of the community.
Mr. Spencer seems to have forgotten this now,
but he knew it when in
Social Statics he denounced the system that
permitted the Duke of Leeds to warn off tourists from Ben Mac Dhui, the
Duke of Atholl to close Glen Tilt, the Duke of Buccleuch to deny Free Church
sites, and the Duke of Sutherland to displace Highlanders with deer.
"Verily, they have their reward." The name
of Herbert Spencer now appears with those of about all the Dukes in the
Kingdom as the director of an association formed for the purpose of defending
private property in land that was especially active in the recent London
County Council election.
