The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner.
He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. “Lysander Spooner deserves a place of honor,” declared Boston University law professor Randy E. Barnett, “both for the principles for which he stood against the crowd and for the brilliance with which he defended those principles.” Intellectual historian George H. Smith called Spooner “one of the greatest libertarian theorists.”
Spooner spoke with bold clarity: “The enactment and enforcement of unjust laws are the greatest crimes that are committed by man against man. The crimes of single individuals invade the rights of single individuals. Unjust laws invade the rights of large bodies of men, often of a majority of the whole community; and generally of that portion of community who, from ignorance and poverty, are least able to bear the wrong.”
Spooner became more radical as he grew older. He wrote in 1885, two years before his death: “All taxes, levied upon a man’s property for the support of government, without his consent, are mere robbery; a violation of his natural right to property…the monopoly of money is one of the most glaring violations of men’s natural right to make their own contracts, and one of the most effective — perhaps the most effective — for enabling a few men to rob everybody else…The government has no more right to claim the ownership of wilderness lands, than it has to claim the ownership of the sunshine, the water, or the atmosphere…by its conscriptions, the government denies a man’s right to any will, choice, judgment, or conscience of his own, in regard either to being killed himself, or used as a weapon in its hands for killing other people.”
Spooner was something of a prickly pear. “He was gruff, direct, and impatient with any hypocrisy,” according to biographer Charles Shively. “His correspondence includes cantankerous and not entirely creditable disputes with friends who failed to understand him.” He found romance awkward and never married. But his friend Benjamin Tucker, editor of Liberty magazine, hailed Spooner for his “towering strength of intellect, whose sincerity and singleness of purpose, and whose frank and loving heart would endear him to generations to come…”
“On any day except Sunday, for as many years back as the present writer can remember,” Tucker continued, “a visitor at the Boston Athenaeum Library between the hours of nine and three might have noticed, as nearly all did notice, in one of the alcoves…the stooping figure of an aged man, bending over a desk piled high with dusty volumes of history, jurisprudence, political science, and constitutional law, and busily absorbed in studying and writing. Had the old man chanced to raise his head for a moment the visitor would have seen, framed in long and snowy hair and beard, one of the finest, kindliest, sweetest, strongest, grandest faces that ever gladdened the eyes of man.”
Lysander Spooner was born on January 19, 1808, at his father’s farm near Athol, Massachusetts. He was the second of nine children born to Asa Spooner (1778-1851) and Dolly Brown 1784-1845). He took a while to find his calling. He worked on the family farm, did clerical work, practiced law and speculated (unsuccessfully) in Ohio land.
Then came the Panic of 1837 which got Spooner thinking about the causes of booms and busts. He wrote Constitutional Law Relative to Credit, Currency and Banking (1843) which explained how government intervention disrupted the banking business. He made a case for (1) repealing legal tender laws (which required that government paper money be accepted for debts) and (2) repealing the requirement that banks be chartered by the government.
Mail delivery seemed like a good business, and Spooner decided to challenge federal laws awarding a monopoly to the U.S. Postal Service. On January 23, 1844, he established the American Letter Mail Company to carry mail between Boston and Baltimore, but in 1835, Congress forced Spooner and other private mail carriers out of business. He wrote a pamphlet, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.
Spooner became caught up in the great debate about American slavery. Although Southern lawyers claimed that slavery was supported by the Constitution, and abolitionist William Lloyd Garrison agreed, which is why he denounced the Constitution as “an agreement with hell,” Spooner thought constitutional arguments could be used against slavery. With some financial assistance from New York philanthropist Gerrit Smith, a major backer of the abolitionist movement, Spooner wrote The Unconstitutionality of Slavery (1845). He maintained that slavery wasn’t supported by American colonial charters, the Declaration of Independence, the Articles of Confederation or the Constitution. Spooner didn’t convince Garrison or his associate Wendell Phillips, but Spooner did win over the runaway slave and abolitionist orator Frederick Douglass, contributing to the split in the abolitionist movement between those for and against spending political action.
The Unconstitutionality of Slavery was perhaps more interesting for Spooner’s affirmation of natural law. As he explained, “man has an inalienable right to so much personal liberty as he will use without invading the rights of others. This liberty is an inherent right of his nature and his faculties. It is an inherent right of his nature and his faculties to develop themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing line between the equal liberties of each much never be transgressed by either. This principle is the foundation and essence of law and civil right.”
Back at the family farm at Athol, he wrote Poverty: It’s Illegal Causes, and Legal Cure (1846). Again, the most interesting passages are about natural rights. He asserted, “Nearly all the positive legislation that has ever been passed in this country, either on the part of the general or state governments, touching men’s rights to labor, or their rights to the fruits of their labor…has been merely an attempt to substitute arbitrary for natural laws; to abolish men’s natural rights of labor, property, and contract, and in their place establish monopolies and privileges…to rob one portion of mankind of their labor, or the fruits of their labor, and give the plunder to the other portion.”
In 1852, Spooner produced Trial by Jury which doubled as a scholarly work and a political tract. Tracing the history of trial by jury since medieval times in England, he showed how it provided crucial protection against oppressive government. He cited legal documents and legal authorities from Magna Carta to his time, affirming that a jury must be free to hear all facts in a case, without constraint by capricious rules of evidence. Moreover, a jury must be free to render a decision not just on the facts but also on the legimacy of the law which the defendant was charged with violating. A jury must be able to nullify an unjust law.
Spooner’s case for jury nullification came when juries were playing an important role in the movement to liberate American slaves. Congress had enacted the Fugitive Slave Act (1793) which mandated the return of runaway slaves to their “owners,” but juries increasingly refused to enforce that law. Hence, political pressures which resulted in the Fugitive Slave Law (1850) which aimed to avoid jury trials. Instead, it permitted a summary process before federal judges; slave-hunters provided “satisfactory proof” of ownership, and they could take possession of the runaways who weren’t permitted to testify in their behalf.
There were jury trials involving individuals charged with helping runaway slaves. In one famous case, United States v. Morris, a slave known as Shadrach escaped from Norfolk, Virginia and reached Boston where, known as Frederick Jenkins, he served as a waiter at the Cornhill Coffee House. In February 1851, he was discovered by a slave-hunter who took him to a federal judge for summary proceedings under the Fugitive Slave Law. But a crowd burst into the courtroom, escorted Shadrach out and over to Cambridge where he vanished. Although he eventually made his way to Canada, eight individuals, four whites and four blacks, were charged with rescuing him and thereby violating the Fugitive Slave Law. The jury trial began May 1851.
Defense counsel went beyond challenging the facts in the case and declared “the jury were rightfully the judges of the law, as well as the fact; and if any of them conscientiously believed the act of 1850…commonly called the ‘Fugitive Slave Act,’ to be unconstitutional, they were bound by their oaths to disregard any direction to the contrary which the court might give them.” Judge Benjamin Curtis was so shocked by this line of argument that he cut off the defense counsel. He told the jurors that they “have not the right to decide any question of law…[they must] apply to the facts, as they may find them, the law given to them by the court.” Curtis issued an opinion warning of chaos if jurors could reject whatever laws they wanted to. The jury disregarded the judge’s opinion and acquitted the defendants. Nobody was convicted for helping Shadrach escape to freedom.
Without jury nullification, Spooner warned, “the government will have everything its own way; the jury will be mere puppets in the hands of the government; and the trial will be, in reality, a trial by the government…if the government may dictate to the jury what laws they are to enforce…the jury then try the accused, not by any standard of their own — not by their own judgments of their rightful liberties — but by a standard dictated to them by the government. And the standard thus dictated by the government becomes the measure of the people’s liberties…the government determines what are its own powers over the people, instead of the people’s determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.”
He rejected the claim that people are adequately protected by the right to vote. Voting, he observed, “can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants.”
Would jury nullification introduce more uncertainty, undermining a rule of law? Spooner countered by observing that the principal sources of uncertainty in the legal system come from “innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them…So great is this uncertainty, that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle — when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns — with no knowledge of their own, but trusting wholly to their guides.”
Spooner was alarmed to see how the Civil War brought a vast expansion of federal power. In the North, there was military conscription; paper money inflation (“Greenbacks”); tariffs as high as 100%; excise, sales, inheritance and income taxes; censorship of mail, telegraphs and newspapers; jailing people without filing formal charges. The Lincoln administration imprisoned some 14,000 civilians. Many of these measures were taken without Congressional approval. Most fighting took place in the South which was devastated. The overall death toll exceeded 625,000. After the war, the federal government maintained a standing army 50% higher than before the war began. Federal spending as a proportion of the national economy was twice as high after the war than before. The national debt, which was about $65 million when the Civil War began, largely a consequence of the Mexican War, skyrocketed to $2.8 billion, and interest on it accounted for about 40% of the federal budget through the mid-1870s.
All this radicalized Spooner. He drew closer to some ideas of American inventor and social philosopher Josiah Warren (1798-1874). In perhaps his most important work, No Treason No. 6, Constitution of No Authority (1870), Spooner attacked the dishonesty of government which, “like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat. The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful. The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a ‘protector,’ and that he takes men’s money against their will, merely to enable him to ‘protect’ those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish to do. He does not persist in following you on the road, against your will; assuming to be your rightful ‘sovereign,’ on account of the ‘protection’ he affords you.”
Spooner got to know the eloquent journalist and editor Benjamin Tucker who believed government is so incompetent, dishonest and violent that people would be better off without it. Tucker was born in South Dartmouth, Massachusetts, April 17, 1854. He described his parents as “radical Unitarians.” After three years at the Massachusetts Institute of Technology, he decided he was more interested in politics than science, and he plunged into the movements for alcohol prohibition and woman suffrage. He embraced free banking, the view that market competition is more effective than government regulation at maintaining sound banking practices. He met the radical libertarian author and entrepreneur Joseph Warren (1798-1874) whose ideas had an impact on his thinking.
On August 6, 1881, Tucker launched Liberty. Although he asserted his editorial independence, he welcomed a wide range of radical views. He helped make better-known the ideas of individualist Josiah Warren, the egoist ethics of German author Max Stirner and the liberating vision of Norwegian dramatist Henrik Ibsen. All this must have helped Tucker clarify his own thinking, because after a few years he insisted that secure private property is essential for liberty, and he attacked communism. Tucker edited Liberty for 27 years. As independent scholar James J. Martin noted, “Liberty preserved sufficient vitality to become the longest-lived of any radical periodical of economic or political nature in the nation’s history, and certainly one of the world’s most interesting during the past two centuries.”
Spooner’s major contribution to Liberty was “A Letter to Grover Cleveland,” to which he added a cantankerous subhead: “His False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent poverty, Ignorance, and Servitude of the People.” There were 19 installments beginning June 20, 1885, and they were gathered into a book published in July. The work was a response to the inaugural address by Cleveland, considered a relatively honest U.S. President.
In this work, Spooner eloquently lashed out against military conscription which had been resorted to during the Civil War. “The government does not every recognize a man’s right to his own life,” he protested. “If it have need of him, for the maintenance of its power, it takes him, against his will (conscripts him), and puts him before the cannon’s mouth, to be blown in pieces, as if he were a mere senseless thing, having no more rights than if he were a shell.”
Spooner lived out his life quietly as scholar in a boarding house on Boston’s Beacon Hill, at 109 Myrtle Street. Tucker reported that he was “surrounded by trunks and chests bursting with the books, manuscripts, and pamphlets which he had gathered about him in his active pamphleteer’s warfare over half a century ago.”
In early 1887, he became seriously ill but, skeptical about doctors, he delayed seeking medical attention. With Tucker apparently by his side, he died Saturday, May 14, 1887, around 1:00 PM. Tucker and abolitionist Theodore Weld were among those who spoke at the memorial gathering, Wells Memorial Hall, Boston. Spooner, Tucker declared, had a mind which was “keen, clear, penetrating, incisive, logical, orderly, careful, convincing, and crushing, and set forth withal in a style of singular strength, purity, and individuality.” Spooner was buried in Boston’s Forest Hills Cemetery.
He seemed to be a forgotten man. But in recent years, as a number of thinkers explored the moral basis for liberty, his writings were rediscovered. Six volumes of his collected works were reprinted in 1971. The Lysander Spooner Reader appeared in 1992. Now there’s a Spooner website, http://www.lysanderspooner.org which makes available information about the man and his writings. His ideas on liberty are soaring through cyberspace into the new millennium.
Reprinted from The Triumph of Liberty by Jim Powell.