Smith explains and criticizes two more of Spencer’s arguments against private property in land.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In my last essay I explained Herbert Spencer’s primary argument against private property in land. If, in theory, all habitable land on earth could become privately owned, then the class of non‐​owners would have “no right to a resting‐​place on earth.” The landless could live only “by the sufferance of their fellow men” and therefore would be “practically serfs.” Spencer concluded that “the existence of such a class is wholly at variance with the law of equal freedom.”

I shall criticize this argument at a later time. Meanwhile, this essay explores two other arguments by Spencer against private landownership, as presented in Chapter IX of Social Statics.

Spencer’s second argument is historical in nature. If we trace current land titles sufficiently far into the past, we will find that they originated in violence and conquest.

The original deeds were written with the sword, rather than with the pen: not lawyers, but soldiers, were the conveyancers: blows were the current coin given in payment; and for seals, blood was used in preference to wax. Could valid claims be thus constituted? Hardly.

This argument had been popular in England since the early seventeenth century. Even libertarians who defended private property in land frequently invoked the “Norman Yoke” theory, which traced most of the landownership in England to the Norman Conquest of 1066, after which William the Conqueror (or William the Bastard, as he was called by Thomas Paine and other radicals) confiscated huge tracts of land and gave them to his relatives and supporters. Thereafter, laws of primogeniture and entail prevented those estates from being subdivided into smaller parcels and sold in a free market.

Although this history helps to explain why libertarian hostility to the status quo in land was more widespread in Britain than in America, the Norman Yoke theory did not necessitate opposition to private landownership per se. On the contrary, many British libertarians, such as Thomas Hodgskin and Auberon Herbert, viewed the Norman Conquest as an egregious violation of private property rights in land, and they sought a remedy in the abolition of all laws restricting free trade in land, believing that this would be the most equitable course of action. Even Spencer eventually came to embrace this remedy as a practical matter, but in Social Statics he emphasized that illegitimate land titles cannot be rendered legitimate through the passage of time.

Does sale or bequest generate a right where it did not previously exist? Would the original claimants be nonsuited at the bar of reason, because the thing stolen from them had changed hands? Certainly not. And if one act of transfer can give no title, can many? No: though nothing be multiplied for ever, it will not produce one. Even the law recognises this principle. An existing holder must, if called upon, substantiate the claims of those from whom he purchased or inherited his property; and any flaw in the original parchment, even though the property should have had a score intermediate owners, quashes his right.

This argument, it should be noted, is completely irrelevant to Spencer’s case against privately owned land. Since Spencer did not believe that there is any method, whether violent or nonviolent, by which private property in land can be justified, it does not matter in the least for his overall case if current titles can ultimately be traced to conquest. Even without such conquest and violence, even if all land titles could be traced to peaceful homesteaders from centuries past, such facts would make no difference whatsoever to Spencer’s position.

That Spencer understood this point is revealed a little later in Chapter IX, where he wrote: “Not only have present land tenures an indefensible origin, but it is impossible to discover any mode in which land can become private property.” So why, we may ask, did Spencer include and emphasize an irrelevant historical point? We cannot say for sure, but I suspect that Spencer, fully aware of the emotional power of the Norman Yoke theory, stressed it for rhetorical effect.

In later years, after Spencer had modified his position on land, he became a severe critic of his earlier historical argument about present land titles. In Justice (1891), which would become Part IV of The Principles of Ethics, Spencer included an appendix on “The Land Question.” He wrote:

That the masses of landless men should regard private landownership as having been wrongfully established, is natural; and, as we have seen, not without warrant. But if we entertain the thought of rectification, there arises in the first place the question – which are the wronged and which are the wrongers? Passing over the primary fact that the ancestors of existing Englishmen, landed and landless, were, as a body, men who took the land by violence from previous owners; and thinking only of the force and fraud by which certain of these ancestors obtained possession of the land while others of them lost possession; the preliminary question is – which are the descendants of the one and of the other? It is tacitly assumed that those who now own lands are the posterity of the usurpers, and that those who now have no lands are the posterity of those whose lands were usurped. But this is far from being the case.

Spencer went on to argue that many current landowners in England were not the descendants of conquerors, whereas many of those descendants owned no land at all. “Hence, the bitter feeling towards the landed which contemplation of the past generates in many of the landless, is in great measure misplaced.” The landless themselves are “to a considerable extent descendants of the sinners; while those they scowl at are to a considerable extent descendants of the sinned against.” Spencer presented a more powerful variant of this point in a letter to the Daily Chronicle (29 August 1894):

My argument in Social Statics was based upon the untenable assumption that the existing English community had a moral right to the land. They never had anything of the kind. They were robbers all round: Normans robbed Danes and Saxons, Saxons robbed Celts, Celts robbed the aborigines, traces of whose earth‐​houses we find here and there. Let the English Land Restoration League find the descendants of these last, and restore the land to them. There never was any equity in the matter, and re‐​establishment of a supposed equity is a dream. The stronger peoples have been land‐​thieves down to the present hour.

A similar point had been made four years earlier by Auberon Herbert (a libertarian defender of private landownership) in A Symposium on the Land Question (1890). Herbert’s remarks again illustrate the enduring influence of the Norman Yoke problem among British theorists.

[I]f land was taken from Saxon by Norman, it had been previously taken by Saxon from Briton, and by Briton from the long‐​headed race. [Ancient history] gives no true title for another taking of the land [by the landless], since it discloses no true previous title existing anywhere. If property has been stolen, and restitution has to be made, you must be able to show the person from whom it has been stolen, and to whom it is to be restored.

Moving now from Spencer’s arguments, both early and late, about the historical origin of land titles, we encounter his next major argument, which is an attempt to rebut the common Lockean argument that he who mixes his labor with land can legitimately claim ownership of that land. Spencer cast his discussion in the form of a dialogue, and such philosophic dialogues rarely present the strongest case for the other side. This is certainly true of Spencer’s dialogue, in which the defender of private property in land, an American backwoodsman, is easily bested by his more sophisticated adversary. Here is a major part of the dialogue:

“Hallo, you Sir,” cries the cosmopolite to some backwoodsman, smoking at the door of his shanty, “by what authority do you take possession of these acres that you have cleared; round which you have put up a snake‐​fence, and on which you have built this log‐​house?”

“By what authority? I squatted here because there was no one to say nay – because I was as much at liberty to do so as any other man. Besides, now that I have cut down the wood, and ploughed and cropped the ground, this farm is more mine than yours, or anybody’s; and I mean to keep it.”

“Ay, so you all say. But I do not yet see how you have substantiated your claim. When you came here you found the land producing trees – sugar maples, perhaps; or may be it was covered with prairie‐​grass and wild strawberries. Well, instead of these, you made it yield wheat, or maize, or tobacco. Now I want to understand how, by exterminating one set of plants, and making the soil bear another set in their place, you have constituted yourself lord of this soil for all succeeding time.”

“Oh, those natural products which I destroyed were of little or no use; whereas I caused the earth to bring forth things good for food—things that help to give life and happiness.”

“Still you have not shown why such a process makes the portion of earth you have so modified yours. What is it that you have done? You have turned over the soil to a few inches in depth with a spade or a plough; you have scattered over this prepared surface a few seeds; and you have gathered the fruits which the sun, rain, and air, helped the soil to produce. Just tell me, if you please, by what magic have these acts made you sole owner of that vast mass of matter, having for its base the surface of your estate, and for its apex the centre of the globe? all of which it appears you would monopolise to yourself and your descendants for ever.”

“Well, if it isn’t mine, whose is it? I have dispossessed nobody. When I crossed the Mississippi yonder, I found nothing but the silent woods. If some one else had settled here, and made this clearing, he would have had as good a right to the location as I have. I have done nothing but what any other person was at liberty to do had he come before me. Whilst they were unreclaimed, these lands belonged to all men—as much to one as to another—and they are now mine simply because I was the first to discover and improve them.”

“You say truly, when you say that ‘whilst they were unreclaimed these lands belonged to all men.’ And it is my duty to tell you that they belong to all men still; and that your ‘improvements’ as you call them, cannot vitiate the claim of all men. You may plough and harrow, and sow and reap; you may turn over the soil as often as you like; but all your manipulations will fail to make that soil yours, which was not yours to begin with. Let me put a case. Suppose now that in the course of your wanderings you come upon an empty house, which in spite of its dilapidated state takes your fancy; suppose that with the intention of making it your abode you expend much time and trouble in repairing it—that you paint and paper, and whitewash, and at considerable cost bring it into a habitable state. Suppose further, that on some fatal day a stranger is announced, who turns out to be the heir to whom this house has been bequeathed; and that this professed heir is prepared with all the necessary proofs of his identity: what becomes of your improvements? Do they give you a valid title to the house? Do they quash the title of the original claimant?”


“Neither then do your pioneering operations give you a valid title to this land. Neither do they quash the title of its original claimants—the human race. The world is God’s bequest to mankind. All men are joint heirs to it; you amongst the number. And because you have taken up your residence on a certain part of it, and have subdued, cultivated, beautified that part—improved it as you say, you are not therefore warranted in appropriating it as entirely private property. At least if you do so, you may at any moment be justly expelled by the lawful owner—Society.”

Spencer did not endow the backwoodsman with the mental acuity to ask even the most obvious questions. For example: If, as Spencer maintained throughout his life, individuals are the ultimate elements of society, and if a society can possess no rights in addition to the rights of individuals – then, if individuals cannot own land, how can society possibly own land, either? How, in other words, can society claim a right that no individual can legitimately claim, when “society” itself is nothing more than a collection of individuals who exhibit recurring patterns of interaction?

Or: If the earth is “God’s bequest to mankind,” then how could a nonbeliever (as Spencer became within a few years after this dialogue was written) possibly defend the same argument? It would be more accurate to say that the earth was originally unowned, and that prior to legitimate claims of individual ownership, every person had an equal right to use unowned land. This, the equal right of usufruct to unowned land, was defended by the enormously influential Samuel Pufendorf, writing in 1672 about the original “negative commons.” Pufendorf’s view was accepted by many subsequent natural‐​law philosophers, possibly including John Locke (who was admittedly unclear on this particular controversy). But nowhere did Spencer consider the “negative commons” approach. Nowhere did Spencer consider the possibility that land was originally unowned, in which case private ownership would not violate the prior rights of anyone, so long as every person has an equal right to acquire property in land.

Or: If the mere transformation of land – a natural resource that no human created – cannot justify private property in land, then why wouldn’t the same type of argument preclude all private property? Every manufactured object – from axes to houses to computers – may be viewed as the transformation of natural resources that no human created, so if no person can properly claim ownership of those natural resources (including land), then how can we claim private property in any artificial object, since all such products contain natural resources in some form? Wouldn’t all products of human labor and ingenuity ultimately belong to “society,” if only society can own natural resources?

If the backwoodsman overlooked these and other fairly obvious objections to Spencer’s case against private landownership, they did not escape his real‐​life critics, as we shall see in the next installment of this series.