By Jim
Powell
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 ofLiberty 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.
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