Spooner vs. Liberty
by Carl Watner
(This article first appeared in THE LIBERTARIAN FORUM, Volume 7, No. 3, March 1975)
our Editor has published an essay entitled "Justice and Property
Rights." The main theme of his article is first, to demonstrate
that libertarians must have a means, independent of the State, to determine
the rightness or wrongness of property holdings, and secondly, to furnish
us with such a theory of proprietary justice. His program is based
on two fundamental premises: "(a) the absolute property right of
each individual in his own person, his own body; this may be called
the right of self-ownership; and (b) the absolute right in material
property of the person who first finds an unused material resource and
then in some way occupies or transforms that resource by the use of
his personal energy. This might be called the homestead principle. .
." These same premises, in one form or another, were bandied
about by the 19th Century native American individualist anarchists.
Since today's libertarians are more or less their direct descendants,
it will be enlightening to examine their disputes about the homesteading
and self-ownership axioms.
the two most famous of the American anarchists of the last half of the
19th Century were Benjamin Tucker and Lysander Spooner. Fortunately
for US, Spooner's writings have been preserved and reprinted. Although
Tucker was not a book writer, his thought has been carried down to us
through his writings in his periodical LIBERTY (1881- 1908). As we
will see, some of their ideas are yet in accord with our contemporary
libertarian thought. Although Murray Rothbard has seen fit to criticize
Spooner and Tucker in his essay, "The Spooner-Tucker Doctrine from
the Point of View of an Economist," in fact, much of Spooner's
thinking on land titles was actually in accord with the program Dr.
defended unlimited private land ownership and grounded his support of
this theory on the homesteading axiom: "The right of property in
material wealth is acquired, . . .in one of these two ways, viz.: first,
by simply taking possession of natural wealth, or the productions of
nature; and, secondly by the artificial production of other wealth.
. . The natural wealth of the world belongs to those who first take
possession of it. . . There is no limit, fixed by the law of nature,
to the amount of property one may acquire simply by taking possession
of natural wealth, not already possessed, except the limit fixed by
(a person's) power or ability to take such possession, without doing
violence to the person or property of others." Spooner would
have definitely agreed with Rothbard, that ". .once a piece of
land passes justly into Mr. A's ownership, he cannot be said to truly
own that land unless he can conveyor sell the title to Mr . B, and to
prevent B from exercising his title simply because he doesn't choose
to use it himself but rather rents it out vo1untarily to Mr. C, is an
invasion of B's freedom of contract and of his right to his justly-acquired
had expressed his ideas on land ownership in his LAW OF INTELLECTUAL
PROPERTY (1855) and in his pamphlet, REVOLUTION: A REPLY TO 'DUNRAVEN'
(1880). Tucker took him to task in LIBERTY: "I call Spooner's work
on 'Intellectual Property' positively foolish because it is fundamentally
foolish, --because, that is to say, its discussion of the acquisition
of property starts with a basic proposition that must be looked upon
by all consistent Anarchists as obvious nonsense. I quote this basic
proposition. 'The natural wealth of the world belongs to those who first
take possession of it. . . So much natural wealth, remaining unpossessed,
as anyone can take possession of first, becomes absolutely his property.'
" Tucker charged Spooner with being a defender of unlimited
land ownership since Spooner's proposition would allow that ".
. .a man may go to a piece of vacant land and fence it off; that he
may then go to a second piece and fence that off; then to a third, and
fence that off; then to a fourth, a fifth, a hundredth, a thousandth,
fencing them all off; that, unable to fence off himself as many as he
wishes, he may hire other men to do fencing for him; and that then he
may stand back and bar all other men from using these lands, or admit
them as tenants at such rental as he may choose to exact."
In these circumstances, Tucker asked: "What becomes of the Anarchistic
doctrine of occupancy and use as the basis and limit of land ownership'?
was a great critic of the land ownership system existing in the 19th
Century. Absentee land ownership presented a serious problem in Ireland.
Due to the agitation of the "No-Rent Movement" and the Irish
Land League and the publicity of the ideas of Henry George, the subject
of land ownership was very much a topic of public concern. Tucker believed
that the occupancy and use theory of land holding solved the
problem of justice in land ownership. The essence of the theory was
that only actual users or possessors of the land (i.e., the Irish tenants)
could be considered its owners. Occupancy and use as the basis for
land ownership would free for use all land not actually being occupied
by its owners. Thus landlords would cease to exist, as would all renting
or leasing of real property, since the absentee landlord could claim
no title or control over his unoccupied property. Spooner was quite
critical of this doctrine: in fact he labeled it communism. The premise
of any argument denying property rights in any form is communism. ".
. .There is, therefore, no middle ground between absolute communism,
on the one hand, which holds that a man has a right to lay his hands
on any thing, which has no other man's hands upon it, no matter who
may have been the producer; and the principle of individual property,
on the other hand, which says that each man has an absolute dominion,
as against all other men, over the products and acquisitions of his
own labor, whether he retains them in his actual possession or not.
believed that "a man cannot be allowed, merely by putting labor,
to the limit of his capacity and beyond the limit of his personal use,
into material of which there is a limited supply and the use of which
is essential to the existence of other men, to withhold that material
from other men's uses; and any contract based upon or involving such
withholding is as lacking in sanctity or legitimacy as a contract to
deliver stolen goods." Under Tucker's theory, if "a man
exerts himself by erecting a building on land which afterward, by the
principle of occupancy and use, rightfully becomes another's, he must,
upon demand of the subsequent occupant, remove from this land, the results
of his self-exertion, or, failing to do so, sacrifice his property rights
therein. The man who persists in storing his property on another's
premises is an invader and it is his crime that alienates control of
this property. He is 'fined one house,' not for 'building a house and
then letting another man live in it,' but for invading the premises
of another." Thus Tucker admitted that homesteading, in the
form of original possession or self-exertion furnished no basis for
a continuing claim to land ownership, after the homesteader left the
land. To further illustrate his differences with Spooner, Tucker related
a conversation that he had with Spooner concerning the rightfulness
of the Irish rebellion against absentee landlords: "Mr. Spooner
bases his opposition to Irish and English landlords on the sole ground
that they or their ancestors took their lands by the sword from the
original holders. This he plainly stated, -- so plainly that I took
issue with Mr.. Spooner on this point when he asked me to read the manuscript
(REVOLUTION) before its publication, I then asked him whether if Dunraven
(the absentee landlord) or his ancestors had found unoccupied the very
lands that he now holds, and had fenced them off, he would have any
objection to raise against Dunraven's title and to leasing of these
lands. He declared emphatically that he would not. Whereupon I protested
that his pamphlet, powerful as it was within its scope, did not go to
the bottom of the land question."
of Tucker's concern with the land problem was based on his apprehension
of the monopoly problem. He is well known for his four-pronged attack
on monopolies: land, banking, tariff, and copyright and patent. Tucker
feared that the right of contract would be carried to an illogical extreme:
". . . It would be possible (under a regime of unfettered freedom
of contract in land) for an individual to acquire, and hold simultaneously,
virtual titles to innumerable parcels of land, by the merest show of
labor performed thereon; . . . (and) . . . we should be forced to consider
. . . the virtual ownership of nearly the entire earth by a small fraction
of its inhabitants
" Analogous to his position on land
ownership, Tucker also attacked the literary monopolization of ideas
based on copyright Spooner was a consistent defender of property in
all forms and claimed for inventors and authors a perpetual copyright
in their work. It is plain that neither could agree until their theories
of ownership were harmonized, and both either adopted or rejected the
question over land ownership and the homesteading principle was not
the only controversy carried on in the pages of LIBERTY. Equally interesting
is the letter and editorial writing concerning the self-ownership axiom
which took place under the guise of discussing the rights of parents
and children. Originally the question began as whether parents should
he legally responsible for abuse and neglect of their children. Tuckers
initial conclusion was that we must not interfere to prevent neglect
of the child, but only to repress positive invasion.
Tucker, having reconsidered his opinion, resolved that ". . . the
change then which my opinion has undergone consists simply in the substitution
of certainty for doubt as to the non-invasive character of parental
cruelty -- a substitution which involves the conclusion that parental
cruelty is not to be prohibited. . ." Tucker's opinion is
grounded on the fact that he views the child as the property of the
mother . Children, in Tucker's estimation, belong in the category of
things to be owned, rather than as being owners of themselves. However
he does note that the "child differs from all other parts of that
category (of things to be owned) in the fact that there is steadily
developing within him the power of self-emancipation, which at a certain
point enables him to become an owner instead of remaining part of the
owned." Tucker saw ". . . no clearer property title
in the world than that of the mother to the fruit of her womb, unless
she has otherwise disposed of it by contract. Certainly the mother's
title to the child while it remains in her womb will not be denied by
any Anarchist. To deny this would be to deny the right of the mother
to commit suicide during pregnancy, and I never knew an Anarchist to
deny the right of suicide. If, then, the child is the mother's while
in the womb, by what consideration does title to it become vested in
another than the mother on its emergence from the womb pending the day
of its emancipation?"
clearly refused to invoke the self-ownership axiom towards children,
at least until they had reached the age of being able to contract and
provide for themselves. In the meantime, he recognized the right of
the mother to throw her property into the fire. "I answer that
it is highly probable that I would interfere in such a case (as a mother
throwing her infant into the flames). My interference no more invalidates
the mother's property right in the child than if I prevent the owner
of a Titian painting from destroying it. If I interfere in either case,
it is only as an invader and I would have to be prepared to suffer the
consequences." According to his logic "the outsider who
uses force upon the child invades, not the child, but its mother, and
may be rightfully punished for doing so. The mother who uses force
upon her child invades nobody. . . To be consistent, I must convict
a man of murder in the first degree who kills a father in the act of
killing his child."
of Tucker's critics realized that Tucker could not be attacked until
the concept of contract as the ethical basis of anarchism was overthrown.
Said this critic, "I do not accept contract as the ethical basis
of Anarchism in the first place, and, in the second, do not regard children
as the property of anybody. . . I base my anarchism on Natural Right.
. . Perhaps no Anarchist will deny the right of the mother to commit
suicide during pregnancy, but I do deny it after the embryo becomes
a human being. The mother has a right to kill herself, but no one else."
"In my category of the owners and the owned I state it thus: Each
being owns himself = No human being owns another ." Of course,
we recognize this as a reformulation of the self-ownership axiom.
Tucker, rights only begin as a social convention. Rights are liberties
created by mutual agreement and contract. He defended his concept of
self-emancipation by stating that any child capable of declaring
to the association's (an anarchistic enforcement agency) officers its
desire for release from its owner that it may thereafter either care
for itself or entrust itself to the care of persons more agreeable to
it thereby proves the presence in its mind of the idea of contract.
. . From the moment that a child makes a deliberate declaration of this
character it should cease to be property and should pass into the category
of owners." Tucker refused to see any alternative to his own
position. "If we take the other course and admitting, that the
child has the possibilities of the man, declare that therefore it cannot
be property, then we must also for the same reason, say that the ovum
in the woman's body is not her property, . . ." and thus being
made to conceive when she is raped, she thereby loses her right to commit
suicide. Tucker failed to realize that no human "being has
a right to live, unbidden, as a parasite within or upon some person's
body He refused to view the fetus as a possible invader of
the mother's body, since it was already her property to do with as she
pleased. Consequently any invasive treatment of the child was not wrong
since it was the mother's property.
foregoing narrative of these two disputes, between Spooner and Tucker
over land ownership, and between Tucker and his critics concerning property
rights in children, should hold our strong interest. Here is one reason
why a theory of justice in all forms of property is necessary. If libertarians
cannot settle on such a theory of justice, a libertarian society will
be disrupted by such disputes. Similarly if no such theory of
justice is arrived at, it will be impossible for libertarians to consistently
attack our present governmental system.
1- Murray N. Rothbard, EGALITARIANISM
AS A REVOLT AGAINST NATURE AND OTHER ESSAYS, p. 58.
2 - Ibid., p. 128.
3 - Lysander Spooner, THE LAW
OF INTELLECTUAL PROPERTY, pp. 21-22.
4 - Rothbard, op. cit., p.
5 - LIBERTY (March 21, 1891)
Whole No. 180, p. 4.
6 - Ibid.
7 - Ibid.
8 - Spooner, op. cit., p. 88.
9 - LIBERTY (January 25. 1896)
Whole No.331, p. 4.
10 - Ibid.
11 - LIBERTY (April 18, 1891)
Whole No. 182, p. 6.
12 - LIBERTY (February 1897)
Whole No. 350, p. 4.
13 - LIBERTY (August 24, 1895)
Whole No. 320, p. 4.
14 - LIBERTY (June 29, 1895)
Whole No.316, p. 3.
15 - LIBERTY (August 24, 1895)
Whole No.320, p. 4.
16 - LIBERTY (September 7,
1895) Whole No.321, p. 1.
17 - LIBERTY (September 21,
1895) Whole No.322, pp. 5, 8.
18 - J. Wm. Lloyd, LIBERTY
(September 21, 1895) Whole No.322, p. 6.
19 - LIBERTY (November 2, 1895)
Whole No.325, p. 7.
20 - LIBERTY (November 2, 1895)
Whole No.325, p. 5.
21 - LIBERTY (December 14.,
1895) Whole No.328, p. 5.
22 - Murray N. Rothbard, FOR
A NEW LIBERTY, p. 121.