Author: David Butler

by Carl Watner
1980

   
Libertarians, if they care to examine the subject, will discover that they have a rich historical tradition in the English and American antislavery movements. The libertarian tradition in antislavery thought may be concisely summed up: In Favorem Libertatis–In Favor of Liberty. No one familiar with this tradition could fail to identify Granville Sharp (1735-1813) as one of its first and greatest expositors and coadjutors. From the time in 1765 when he first encountered the slave Johnathan Strong, till his death, Sharp’s name was inextricably bound up with the freedom of slaves in England. Sharp was born of a religious family, being the grandson of the Archbishop of York and son of an archdeacon. His early religious training and background permeated much of his adult thinking. Since his father could not afford to attend to his education, Sharp was largely self-educated. He was apprenticed to a linen draper in London from 1750 to 1757 and then secured an appointment as a clerk in the Government Ordnance Department, where he remained employed until 1775. His early activities exemplify his wide-ranging intellectual interests, his freedom from unreasoned prejudice, and his aptitude for patient and scholarly research.

While learning his trade as a linen-draper he encountered a fellow-apprentice who happened to be a Socinian with the irritating habit of referring in religious controversies to the original Greek of the New Testament, with the admonition that Granville Sharp’s mistaken opinions arose from his lack of acquaintance with Greek. . . . Accordingly Granville Sharp learned Greek in his spare time, until he was able to argue on a more than equal footing with the Socinian. It was the same with Hebrew. A Jew, another fellow-apprentice with whom he indulged in religious controversy, whenever hard pressed by Granville Sharp’s cogent reasonings, constantly declared that he was misrepresenting the prophecies from ignorance of the Hebrew tongue in which they were written.[1]

“To be ignorant of the truth, was, to his ardent mind, a source of inexpressible pain; to neglect the means of acquiring a knowledge of it, insupportable disgrace.”[2]

Sharp’s first encounter with English law and the blacks involved the person of Johnathan Strong and commenced sometime in 1765. Strong was a young African slave, brought from Barbados by his master David Lisle. Having been seriously beaten and then abandoned by his owner, Strong sought medical help from Granville Sharp’s brother, William, a surgeon who devoted part of his time to treating the poor. Befriended and healed by the brothers, Johnathan obtained paid employment through their assistance. In September 1767, Lisle happened upon his former slave, and inasmuch as he had regained his health, Lisle was determined to have him back. Accordingly, Johnathan Strong was ensnared and kidnapped under orders from Lisle and lodged in a London jail where he awaited transport back to Jamaica by Captain Laird, who was acting on behalf of Strong’s new owner, John Kerr. As a last resort, Strong sent for Granville Sharp. The message was received on September 12, 1767 and implored “protection from being sold as a Slave.” Sharp, who did not recollect the name of Strong, went the following day to the jail and demanded to see the prisoner. The jailer denied that they had anyone named Johnathan Strong committed to their charge. This blatant lie aroused Sharp’s suspicion. “He demanded to see the keeper of the prison and insisted on seeing Johnathan Strong. He was then called.” On seeing Johnathan Strong, “Sharp immediately recollected ‘him, and enquired what he had done to be thus imprisoned. The lad said he had not been guilty of any offense whatever, but that his former master David Lisle’ had put him in prison before shipment back to the plantations. Appalled by what he heard, Granville Sharp took Johnathan’s case to court on information ‘that a Johnathan Strong had been confined in prison without any warrant.”‘ The action was heard on September 18, 1767 in the presence of the Lord Mayor, who discharged Johnathan Strong because “the lad had not stolen any thing, and was not guilty of any offense, and was therefore at liberty to go away.”[3]

A few days after the hearing Granville was served “with copies of Writs issued by James Kerr, claiming . . . damages in a plea of trespass against the Sharp brothers for depriving him of his property.” Thus as Granville wrote in his manuscript entitled “An Account of the Occasion which Compelled Granville Sharp to Study Law, and the Defense of Negro Slaves in England,” “a lawsuit commenced against him . . . for having lawfully and openly obtained the liberty of a poor injured Negro before the Chief Magistrate of the City.”[4] When sued by Kerr, Sharp consulted with his own lawyers, all of whom fell back on the joint opinion of Attorney-General Philip Yorke and Solicitor-General Charles Talbot, which was unofficially issued in 1729. Their opinion claimed that a slave, by merely coming from the West Indies to Great Britain, did not become free, and that the slave’s master might legally compel him to return to the plantations even though it was against the slave’s will. Sharp was told that his case was defenseless, particularly since Lord Mansfield, on the King’s Bench, had confirmed the Yorke and Talbot opinion several times. The lawyers implied that Sharp should save his money and leave Johnathan to his fate. “Granville noted that ‘he could not believe that the Laws of England were really so injurious to natural Rights as so many great lawyers, for political reasons had been pleased to assert.’ Since the Yorke and Talbot opinion ‘so intimidated’ the lawyers, he calmly told his lawyers that he proposed to undertake his own . . . defense.”[5] The incident at the Lord Mayor’s Court, when Captain Laird claimed Johnathan Strong as the property of Kerr by virtue of a bill of sale produced as evidence, obviously made “a deep and frightening impression on Granville Sharp.” As the remainder of his life illustrates, it is reasonably clear that it left him with a “burning desire to combat the injustice and inhumanity of slavery.”

Left without legal help and impelled by circumstances, Granville Sharp once again began the laborious study of yet another subject. He determined “to give up two or three years to the study of English law, that he might better advocate the cause” of the Negro on English soil. “The result of these studies was the publication of a book in 1769, which he called A Representation of the Injustice and Dangerous Tendency of Tolerating Slavery in England.” In it he refuted the opinion of Yorke and Talbot. He produced against it the opinion of Lord Chief Justice Holt, who had determined many years before that every slave coming into England thereby became free.

He vigorously rejected the idea of private property in a black as if in a horse or dog. This he regarded as preposterous, ‘very insufficient and defective’ claim, because the comparing of a man to a beast ‘is unnatural and unjust.’ The claim of private property was maintainable only if ‘the pretended proprietors’ could prove that a slave ‘is neither man, woman nor child’: and if they are not able to do this, how can they presume to consider such a person as a mere ‘chose in action’? or ‘thing to be demanded in action’?

Sharp contended that men are rendered obnoxious to the law by their offenses and not by their particular denomination, rank, parentage, color or country. “True justice make no respect of persons, and can never deny to any one that blessing to which all mankind have an undoubted right, their natural liberty.”[7] He also showed it to be “an axiom in the British constitution, ‘That every man in England was free to sue for and defend his rights, and that force could not be used without legal process.”‘[8] Sharp quoted Sir Edward Coke’s statement made in 1628 that, “The law favors liberty and the freedom of a man from imprisonment; and therefore kind interpretations shall be made on its behalf.” This reinforced his argument that in English law the terms “subject” and “person” referred to both black and white people and were not limited to white people only, as the Courts were prone to interpret the law.[9]

While Sharp was engaged in his studies, another case involving a Negro slave was called to his attention. This occurred in the year 1768. John Hylas and his wife Mary were black slaves born in Barbados. They were married in England in 1758, having been brought there previously by their masters. John was granted his freedom after his marriage and he lived with his wife until 1766. At this time, Mary was kidnapped by her former owners, the Newtons, and sent back to the West Indies to be sold as a slave. “And so, in 1768, over two years after his wife had been kidnapped by Newton, Hylas complained to Granville Sharp, who interested himself in the success of the cause. Armed with a memorandum prepared by Granville Sharp, Hylas commenced an action against Newton,” which was heard on December 3, 1768.[10] The result of the trial was that Newton, the owner of Hylas’ wife, was bound to bring back the woman, either by the first ship or within six months, and was judged to pay damages in the nominal amount of one shilling. The import of the decision was not that blacks gained their freedom in England, but only that as Hylas had been manumitted, he was entitled to both his own liberty and that of his wife.[11] In his manuscript account of the case, “Remarks on the Case of John Hylas and his Wife, Mary,” Sharp noted that Hylas should have been entitled to both his wife and substantial damages. “If he had a right to his wife, which cannot be denied, he most certainly had a right to damages also, in consideration of the violent and unpardonable outrage committed against himself in the person of his wife, for which no pecuniary allowance whatsoever can really make amends.”[12] Sharp charged the court with doing a manifest injustice to Hylas, “who is as much entitled to 500 pounds damages, at the least, besides treble the costs, by this Act, as the first lawyer of the kingdom would be, if he should lose his wife in the same manner.” Despite his plea for justice, Granville Sharp was alone. The courts and the lawyers were convinced that the Habeas Corpus Act (upon which Sharp based his legal action) did not have blacks in mind.[13] To Sharp the matter was clear: on the plainest and most literal interpretation of the laws of England, blacks were entitled to liberty and freedom in England.[14]

Shortly after the publication of his work in 1769, Sharp was solicited to assist in procuring another writ of habeas corpus for a kidnapped Negro, Thomas Lewis. Lewis was seized by watermen in the dark of the night on July 2, 1770 and put on board a ship bound for Jamaica, where it was intended that he be sold as a slave. His former master, Robert Stapylton, had engineered the kidnapping. Sharp eventually obtained a habeas corpus, and just in time, as the ship on which Lewis was confined was making ready to sail from port. Following the rescue, Sharp began criminal proceedings for assault on behalf of Lewis against Stapylton and the two watermen who had assisted him.[15] Stapylton defended himself with the plea “that Lewis belonged to him as a slave.” In the course of the criminal trial, John Dunning, counsel for Lewis, paid Sharp a handsome compliment, for he held in his hand Sharp’s hook on the injustice and dangerous tendency of tolerating slavery in England while he was pleading that he was prepared to maintain in any of the courts in Great Britain, that “no man can be legally detained as a slave in this country.”[16] Lord Mansfield directed the jury to find Stapylton guilty if they found that Lewis was not his slave. In February 1771 the jury decided against Stapylton and showed that they thought Lewis was not his property. In spite of the guilty verdict, Stapylton suffered no punishment for his crime since Lord Mansfield repeatedly refused to render a sentence against him.[17]

This contempt of justice disturbed Sharp, even though he had secured the legal freedom of other Negroes. Not one of these cases had been pleaded on the broad ground of the question of “whether an African slave coming into England became free?” This great question had been avoided by the judiciary, especially Lord Mansfield, and legally it was still in doubt.[18] Sharp was desirous of having a case argued and decided on the basis of general principles and it was the case of Somerset v. Stewart that answered his wish. The facts in Somerset v. Stewart are clear-cut. Lord Mansfield in his summary of the case put them as follows:

That James Somerset, is a Negro of Africa, and long before the return of the King’s writ was brought to be sold, and was sold to Mr. Charles Stewart, Esq. then in Jamaica, and has not been manumitted since; that Mr. Stewart, having occasion to transact business, came over hither, with an intention to return; and brought Somerset, to attend and abide with him, and to carry him back as soon as the business should be transacted. That such intention has been, and still continues; and that the Negro did remain till the time of his departure, in the service of his master Mr. Stewart, and quitted it without his consent; and thereupon, before the return of the King’s writ, the said Charles Stewart did commit the slave on board the “Ann and Mary,” to save custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, Captain Knowles, who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said Negro, committed to his custody, detain; and on which he now renders him to the orders of the Court.[19]

The chronology of the events was that both Stewart and his slave, Somerset, arrived in England in November 1769. Prior to their scheduled return in early October 1771, Somerset left his master, Stewart. The master then seized his slave and placed him on board ship for safekeeping on November 26, 1771. The godparents of Somerset obtained a writ of habeas corpus on November 28, 1771, and it was they who initially interceded on Somerset’s behalf.

Sharp was soon involved in the case. He recorded on January 13, 1772 that “James Somerset, a Negro from Virginia, called on me this morning to complain of Mr. Charles Stewart. I gave him the best advice I could.” Sharp also contributed towards the expense of retaining counsel for Somerset. “Money,” he said, “has no value but when well spent; and I am thoroughly convinced that no part of my little pittance of ready money can ever be better bestowed than in an honest endeavor to crush a growing oppression, which is not only shocking to humanity, but in time must prove even dangerous to the community.”[29] Sharp quickly printed an “Appendix” to his Injustice of Tolerating Slavery. The “Appendix” hinted at Mansfield’s previous contemptuous behavior in the Lewis case and forthrightly declared that there was no reason for judicial hesitation nor delay in granting “relief and discharge of a poor innocent man from an unlawful imprisonment and unjust oppression”:

When a Notorious Outrage and Breach of the Peace is committed under the pretence of any such groundless claim of service, the Magistrate who neglects to relieve the person oppressed, and to punish the Offenders, is certainly a partaker of their Guilt; and no upright and conscientious Judge (who does not set his own will above the laws of the Land) can possibly entertain any doubt in his mind about the punishment of such Offenders; for when the Laws of the Land, and especially the Habeas Corpus Act, are expressly and clearly on one Side of the Question (without the least exception whatever concerning any difference or distinction of Persons), and when the only plea on the other side of the Question is absolutely without foundation either in Natural Equity or the established Law and Customs of this country, what room can there be for doubt? and how would a Judge be able to justify an Arrest of Judgment in such a case? . . . A Doubt is certainly a very insufficient excuse for an arrest of Judgment, in any case whatever, unless “strong and probable Grounds” are allowed to justify it; hut a groundless doubt upon the present question would he more particularly criminal; because it would, probably, tend to the introduction of the diabolical Tyranny and Injustice of our West Indian Colonies, whereby human Nature is villifyed and delegated to the rank and level of brute Beasts . . . into this kingdom: which, added to the manifold corruptions and depravities into which this Kingdom has already fallen, will certainly cause our measure of Iniquity to overflow, and, in all probability, draw down upon us some dreadful and speedy national calamity, besides that severe judgment, which is already too apparent amongst us, I mean the deplorable Hardness of Heart, and abandoned Spirit of Injustice, which has rendered publication of this remonstrance necessary.[21]

“All the Court had to decide was whether Stewart had the right, which he claimed as the owner of Somerset, to remove him by force and against his will out of England and consign him to slavery in the plantations.”[22]

To represent Somerset, Sharp obtained some of the most eminent legal counsel of his day: Serjeants William Davy and John Glynn, and barristers James Mansfield, Francis Hargrave, and Mr. Alleyne. On the other side, representing Stewart and the West Indies Interest were William Wallace and John Dunning, who had represented the slave Lewis the previous year. Hargrave, young and unknown, contributed his own time to the case and after the conclusion of the hearings published his book, An Argument in the Case of James Somerset, a Negro, Lately Determined by the Court of the King’s Bench: Wherein It Is Attempted to Demonstrate the Present unlawfulness of Domestic Slavery in England. To Which Is Prefixed, A State of the Case (1772).[21]

Hargrave adopted several lines of reasoning suggested by Sharp. He opened his argument by declaring, “The question . . . is not whether slavery is lawful in the colonies, but whether [it is lawful] in England? Not whether it ever has existed in England; but whether it be not now abolished?”[24] Hargrave argued that the only form of slavery ever countenanced by English law was that of villenage (a feudal status) and that by 1770 that institution had been defunct for well over a century. He further argued that slavery was antithetical to other parts of English law, pointing out that the English law of contracts would not permit an individual to enslave himself and his posterity for their lifetimes. If the law of England would not permit a man to bind himself by contract to service for life, even when the parties were willing, then how could it ever sanctify the condition of a slave, who is coerced against his will? Hargrave questioned, “In England, where freedom is the grand object of the laws, and dispensed to the meanest individual, shall the laws of an infant colony, Virginia, or a barbarous nation, Africa, prevail?” He maintained that the Negro, while in England, was duty bound to submit to English law, and that therefore he has a right to claim the protection of English law. Hargrave concluded his brief by stating his belief that Mr. Stewart’s claim was opposed to “natural justice” and inconsistent “with the laws of England.”

Another argument for Somerset was that the laws of Virginia could not be used to sanction slavery in England. Serjeant Davy contended that the toleration of slavery in the colonies was merely local in character and wholly dependent on colonial law. An English court “was bound to apply its own law–the law of England–which is the lex situs and the proper law.” According to Davy, and echoing Hargrave and Sharp, “All the people who come into this country immediately become subject to the laws of this country, are governed by the laws, regulated entirely in their whole conduct by the laws, and are entitled to the protection of the laws of this country, and become the King’s subjects.” Davy points out that this man, Somerset, “remains, ‘upon his arrival in England, in the condition he was abroad, in Virginia or not. If he does so remain, the master’s power remains as before. If the laws, having attached upon him abroad, are at all to affect him here, it brings them all: either all the laws of Virginia are to attach upon him here, or none,–for where will they draw the line?”[26]

The arguments for Somerset were concluded by Mr. Alleyne. He laid it down as “an unimpeachable proposition that all municipal relations which were repugnant to natural law, ceased to operate the moment the persons affected by them were out of the state in which they were made.” In Alleyne’s consideration, the state of slavery was such a municipal relation which violated natural law, so that although the laws of Virginia might establish slavery there, they could never establish slavery in England. “The laws of Virginia extend to Virginia alone.”[27] He focused attention on the subject of the case, James Somerset, who was there in the English court. Said Alleyne, “This man is here: he owes submission to the laws of England, and he claims the protection of those laws; and as he ceases to be a citizen of Virginia, and stands in no such relation now to Mr. Stewart, so he is certainly not bound to him; and therefore he stands, like any other man in the kingdom, entitled to his freedom.”[28]

Mr. Wallace, the junior counsel for Stewart, opened his submission for the slaveholder by pointing out that slavery was found in more than three-quarters of the world and that this proved how widespread a practice it was. He argued that it would be unjust and absurd to divest Stewart of his property in Somerset only because he sailed in pursuit of his lawful business from one country to another. By implication, he held that the laws of Virginia, by which Somerset was a slave, must be recognized in England. Since there was no law in the West Indies or in the Northern Colonies or in England by which slavery was directly prohibited, he could not understand how or why slavery should be unlawful in those places. There was no “positive law. . . against it.”[29] He raised the question of the inconvenience and, especially, the loss of value in the slaves which English masters would suffer, should Somerset be set free. His final argument rested on the comparison of a slave to the status of an English servant. He reasoned that private force which an English master of that era might use against his servant to correct error was the equivalent of the force by which a master held his slave.

Mr. John Dunning was the senior counsel for the defendant and was in a very delicate situation. Only a year before, he had pleaded for the freedom of Thomas Lewis by declaring that no property could exist in a slave in England. Trying to extricate himself from this about-face, he said, “I am bound by duty to maintain those arguments which are useful to Captain Knowles (and Mr. Stewart) as far as are consistent with truth, and if his conduct has been agreeable to the laws throughout, I am under a further indispensable duty to support it.”[30] Dunning had little to add to Wallace’s arguments, but he did note that earlier English decisions, which the plaintiffs attorneys used to support their case, did not destroy the Negro’s obligation to serve his master. According to Dunning, Somerset was in a condition of servitude when he left Africa and the British legislature had merely confirmed him in that condition.

Lord Mansfield also found himself in trying circumstances. As Chief Justice, he had to interpret the law regardless of his personal views and regardless of the possible consequences of his decision. Prior to announcing his decision in the case, he summed up his views of the issues:

The question is, if the owner had a right to detain the slave, for the sending of him over to be sold in Jamaica. In five or six cases of this nature, I have known it to be accommodated by agreement between the parties: on its first coming before me, I strongly recommended it here. But if the parties will have it decided, we must give our opinion. Compassion will not, on the one hand, nor inconvenience on the other, be to decide; but the law . . . . Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of inquiry; which makes a very material difference. The question now is, whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws? . . . Mr. Stewart advances no claim on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat coelum, let justice be done whatever the consequence. . . . We cannot in any of these points direct the law; the law must rule us.[31]

On June 22, 1772, Lord Mansfield delivered his final opinion in Somerset v. Stewart:

The only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must he discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must he recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.[32]

Technically considered, the judgment “settled only two narrow points of English law.” A master could not seize his slave and remove him from the country against his will. And a slave could secure a writ of habeas corpus to prevent that removal.[33] Regardless of the claims of historians, the case did not legally declare slaves free when they landed in England, nor did it abolish slavery there. Even after the decision, blacks were still hunted and kidnapped in the streets of English cities. What Mansfield declared was that there was no positive law enforcing slavery in England and that when the actions of slave masters were contrary to the Habeas Corpus Act, the slaves might rely on the Act itself for legal relief.

Sharp took a quiet pride in the decision. He noted on the day that it was given that, “This day, James Somerset came to tell me that judgment was today given in his favor. Somerset was the last Negro whom G[ranville] S[harp] brought before Lord Mansfield by writ of habeas corpus; when his Lordship declared, as the opinion of all the Judges present, that the power claimed by the master ‘never was in use here, nor acknowledged by the law; and, therefore the man James Somerset must be discharged.’ Thus ended G. Sharp’s long contest with Lord Mansfield on the 22nd of June 1772.”[34]

Sharp had waged a long “uphill battle” in obtaining Lord Mansfield’s decision. In the course of his struggle, Sharp lost whatever faith he may have had in the legal profession. First, the practitioners had claimed his outlook on the law of slavery was futile and faulty. They had advised against offering any defense at all in the case of Johnathan Strong. Then he had employed Dunning to defend Lewis, after which Dunning pleaded the case of the slaveholder, Stewart. Of Dunning’s behavior on behalf of two mutually contradictory causes, Sharp wrote, “This is an abominable and insufferable practice in lawyers, to undertake causes diametrically opposite to their own declared opinions of law and common justice.”[35] William Blackstone, the author of The Commentaries on the Laws of England, written in 1765, also changed his opinion on the law of slavery in England during the course of Sharp’s struggle in the Courts. In the beginning of his research, Sharp had found and noted the following passage in Blackstone’s commentaries: “And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a Slave, or Negro, the moment he lands in England, falls under the protection of the laws, and with regard to all national rights, becomes eo instanti a freeman.” In his second and third editions of 1766 and 1768, Blackstone altered this passage: “A Negro, the moment he lands in England, falls under the protection of the laws, and so far becomes a freeman; though the master’s right to his service may possibly still continue.”[36] In private correspondence with Sharp, Blackstone went so far as to request that Sharp not cite the passage “from my first edition as decisive in favor of your Doctrine.”[37]

In 1783, Sharp became involved in another court case concerned with the issue of slaves as property. The case of the slave-ship Zong, officially cataloged as Gregson v. Gilbert, involved the loss of 132 slaves, all of whom were thrown overboard by the crew of the Zong. Gregson and other members of his Liverpool mercantile firm owned the Zong and sued their underwriters for the value of the slaves, who had been insured as common merchandise or cargo. According to the policy, the underwriters would not be liable if the slaves perished of a natural death, such as sickness; they would be held liable if it were proven that the slaves had been jettisoned out of necessity. The pretense of throwing the slaves overboard was that there had been an acute shortage of water aboard ship, which jeopardized the other slaves and crew. Nevertheless, the evidence proved that the captain, Luke Collingwood, had taken no efforts to ration water supplies.

The underwriters defended their position by arguing that there had been no need for conduct so shocking to humanity, that the water situation might have been alleviated by a port call, and that, in fact, the Zong still carried at least a five-day supply of water when she finally docked. The chiefmate, John Kelsal, testified that at first he opposed the captain’s orders, but that on second thought he had decided that they were sufficient enough authority for throwing the slaves overboard–without considering whether such an action was criminal or not. Sharp was not aware of the case until near the end of the civil trial. He immediately took steps to insure that accurate records of the proceedings be kept, and he initiated legal action to see that the murderers be punished. He corresponded, without success however, with the Lords Commissioners of the Admiralty because the “right of inquiry concerning all murders committed on board British ships, belongs properly to the Admiralty department.” Sharp also contacted other high-placed officials and prominent clergymen in an effort to seek their assistance in prosecuting the crew members of the Zong. Although the Admiralty took no action, Sharp must be given much of the credit for publicizing the case in public and governmental circles. Sharp’s call for punishment was doomed because law and public opinion in 18th-century England still did not regard the African as a human being. In the eyes of most Englishmen, they were chattels or property, and the insurers were bound to pay for their loss.[38]

Sharp prepared an essay for distribution entitled “An Account of the Murder of One Hundred and Thirty-Two . . . Slaves on Board the Ship Zong.” Invoking both natural and divine law, Sharp attacked on two fronts. First he denied that there was any case for pleading “necessity” in the death of the slaves; and even if there were grounds for such a plea, he thought the plea of necessity was never a sufficient excuse for the murder of innocent slaves. Secondly, he disputed that slaves lost their claim to humanity just because they were slaves. Sharp pointed out that the supposed property in the persons of the slaves was a very limited kind of property, limited by the inevitable consideration of their human nature. Consequently, the property of the injured Africans in their own lives, despite their status as slaves, was infinitely superior to any claim of the slave dealers. The indispensable point under consideration was that the act of jettison was “the case of throwing over living men: and that, notwithstanding they are, in one sense, unhappily considered as goods or chattels (to the eternal disgrace of this nation!), yet they are still men; that their existence in human nature, and their natural rights as men, nay as brethren, still remains!”[39] Sharp’s commentary on the inexcusable plea of necessity probably remains unique in the history of English law: Thus one hundred and thirty-two innocent human persons were wilfully put to a violent death, not on account of any mutiny or insurrection, nor even through the fear of any such, . . . but merely on a pretended plea of necessity through want of water. . . So that, even if the plea of necessity for the wilful murder of the innocent persons was at all admissable (which it can never be) in a case of want or scarcity, yet no such necessity existed in the present case; because it is proved, even by their own evidence, that the stock of water was sufficient to have held out till the time that an ample supply was actually received.–But there can never be a necessity for the wilful murder of an innocent man, notwithstanding the high authority of those learned and dignified persons who seem to have conceived a contrary idea, because wilful murder is one of the worst evils that happen among men; so that the plea of a necessity to destroy a few men in order to save many, is not only the adoption of a declared damnable doctrine (“Let us do evil that good may come!”), which is extreme wickedness, but is also extreme ignorance; for it is obvious that the death of many by misfortune, which is properly in the hand of Divine Providence, is not near so great an evil as the murder of a few, or even of one innocent man–the former being the loss only of temporal lives, but the latter endangers the eternal souls, not only of the miserable aggressors themselves, but the souls of all their indiscriminate abettors and favourers. God’s vengeance is so clearly denounced against wilful murder, that it is certainly a malum in se of the most flagrant and odious nature, such as cannot, without extreme ignorance of the English common law, be admitted as a legal justification. . . . And therefore, whenever a man wilfully takes the life of an innocent man on pretense of necessity to save his own, in any case where se-defendendo will not hold (which requires proof of an actual attack by the deceased, who therefore is not an innocent man), . . . such a man, I say, is guilty of a felonious homicide.[40]

“The extraordinarily cruel nature of the Zong case furnished the anti-slavery crusade with a powerful, and almost unanswerable argument” in their favor.[41] Sharp was active in other antislavery activities as well. In June 1787, he was invited to cooperate with other English abolitionists to form the Committee for Effecting an Abolition of the Slave-Trade. Here he associated with Clarkson, Wilberforce, and others, whose immediate aim was to mitigate and abolish the slave trade and eventually to outlaw slavery itself. Of the ten people in the founding group, Sharp alone stood for including the abolition of slavery, per se, in the title of their society. For he feared that “the vast object of his benevolence–the abolition of slavery throughout the world,” might be “compromised by subordinate measures. . . . As slavery was as much a crime against the Divine Laws as the Slave-Trade, it became the Committee to exert themselves equally against the continuance of both; and he did not hesitate to pronounce all present guilty before God for shutting those, who were then slaves all the world over, out of the pale of their approaching labors.”[42] Finding himself unable to influence those present, “he felt satisfied that he had delivered his testimony against the proceedings which circumscribed them, and from that hour proved himself thoroughly desirous to aid, to his utmost ability, the part which he found could be undertaken with greater and more general consent.” It is worthy of note that during this same decade, Sharp was also devoting his energies to the establishment of a colony in Africa, which was to be settled by freed English Negroes. Although Sierra Leone was eventually to become a government project, Sharp was one of its earliest and most persistent advocates and organizers.

Sharp was, above all, his own man and was not about to betray his conscience for any reason whatsoever. He forcefully emphasized this point in an undated letter:

I look on myself to be perfectly independent, because I have never yet been afraid to do and avow whatever I thought just and right, without the consideration of consequences to myself: for, indeed, I think it unworthy of a man to be afraid of the world; and it is a point with me, never to conceal my sentiments on any subject whatever, not even from my superiors in office, when there is a probability of answering any good purpose by it.”[43]

Sharp was sympathetic to the position of the American colonists, and when armed hostilities broke out he was in a trying situation. He had been an employee of the Government Ordnance Department since 1758. In 1775, when demands were made for munitions from his department, he made his opposition to royal intervention in the colonies known and requested a leave of absence from his position. In September 1775, he wrote that he could not “return to my ordnance duty whilst a bloody war is carried on, unjustly as I conceive it, against my fellow-subjects; and yet, to resign my place would be to give up a calling, which, by my close attendance to it for near 18 years, and by my neglect of every other means of subsistence during so long a period, is now become my only profession and livelihood.”[44] When no end to the hostilities appeared in sight, Sharp formally resigned his clerkship. Meanwhile, he had determined to engage in his own private diplomacy in an effort to negotiate a peaceful settlement of the dispute between the colonists and the King and Parliament. From 1777 almost until the end of the war, he was engaged in lobbying for American representation in Parliament. He hoped that the North American colonists might put down their arms were they to obtain such representation.

Sharp’s “noble and incessant labors in the best causes, the preservation of the rights of mankind,” were noted as early as 1770, by another English radical, John Wilkes.[45] His political philosophy was bound by the maxim that “Honesty is the best policy”:

That excellent adage for all the ordinary circumstances of life, viz., “Honesty the best Policy,” will be found to hold equally good in politics or affairs of government, even throughout the most dangerous and alarming difficulties. . . . An administration which cannot subsist with law, justice, and common honesty is unjust to subsist at all because law is the only basis of good and lawful government.[46]

In spite of his liberal tendencies, Sharp was illiberal to Roman Catholics, who he believed already had sufficient privileges in England. Though a religious man, he bore the most implacable hatred towards their religion.[47]

Nevertheless, in many ways he was ahead of his time, as the lengthy list of his pamphlets and books illustrates. As a citizen of England in the days of pocket boroughs and rotten districts, he published a series of pamphlets urging a more equal system of representation, universal adult suffrage, and more frequent parliaments.[48] He wrote in favor of The People’s Natural Right to a Share in the Legislature: Against the Attempts to Tax America and to Make Laws for Her Against Her Consent (1774). Sharp opposed standing armies and wrote a series of severe tracts on “Free Militia,” among which were included The Ancient Common Law Right of Associating with the Vicinage to Maintain the Peace (1780). and A General Militia, Acting by Rotation, Is the Only Safe Means of Defending a Free People (1780). He wrote against the prevailing practice of dueling in his Remarks on the Opinions of Some of the Most Celebrated Writers on Crown Law, Respecting the Distinction Between Manslaughter and Murder (1773).

This last work reflects Sharp’s scholarly and legal abilities. He attempted to show that “the plea of sudden anger cannot remove the imputation of guilt of murder, when a mortal wound is wilfully given with a weapon,” as in the case of a duel. It was his opinion that “No Man can give or accept a challenge to fight with weapons, on any private difference whatever, without being guilty of wilful murder if he kills his antagonist.”[50] Sharp reasoned that:

When two persons fight with dangerous weapons an intention of killing is expressed by the weapons; and such intention renders the manslaughter voluntary, which is the same thing as wilful. . . . For if the killing be voluntary, the evil and malicious intention is necessarily included in the act, . . . for a voluntary striking, without an intention to kill, is indeed pardonable, though death ensues; but a voluntary killing (where murderous weapons imply the intention to kill) . . . must, necessarily, be esteemed Murder.[51]

Sharp attributed the propensity for dueling, especially among military men, to a false sense of honor and pride. He berated the military men as well as the professors of law for their misunderstanding of the law, but he asserted that

Gentlemen of the Army are not obliged, indeed, to acquire a critical knowledge of the Law, but they must not forget that they are Men, as well as Soldiers: and that if they do not maintain the Natural Privilege of Men, (viz. that of thinking for themselves, and acting agreeable to the Dictates of their own conscience, as Members of the Community), they are unfit for British Soldiers, of whom the Law requires an acknowledgment for her supremacy. For the Law will not excuse an unlawful Act by a Soldier, even though he commits it by the express Command of the highest military Authority in the Kingdom: and much less is the Soldier obliged to conform himself implicitly to the mere opinions and false Notions of Honor, which his Superiors may have unfortunately adopted. . . . The Law manifestly requires the Soldier to think for himself; and to consider, before he acts in any war, whether the same be just; for, if it be otherwise, the Common Law of this Kingdom will impute to him the Guilt of Murder.”[52]

In 1778, Sharp published An Address to the People of England: Being the Protest of a Private Person Against Every Suspension of Law that Is Liable to Injure or Endanger Personal Security. This book expresses as well as any of his other writings his views on government and politics. The compendium or sum total of his politics was:

I am thoroughly convinced that right ought to be adopted and maintained on all occasions, without regard to the consequences either probable or possible; for these (when we have done our own duty as honest men) must, after all, be left to the disposal of Divine Providence.[53]

In Sharp’s view, “It was better to endure all adversities than to assent to one evil measure; it was better that ten offenders should escape penal justice than one innocent man should suffer by denial or suspension of common right.”[54] No government could ever be justified in suspending the law, even in times of national emergencies. “There never can be any necessity for injustice,” wrote Sharp. “No necessity, therefore, whatever, can justify the adoption of an unrighteous or unjust measure, by any legislature upon earth.”[55]

Part of Sharp’s Address was directed against the practice of impressing seamen, which was conducted by the Royal Navy. Pressing was a form of involuntary conscription by which the Navy seized Englishmen and forced them on board ships where they were made to serve as sailors. Sharp had been employed to help obtain a writ of habeas corpus to secure the freedom of Millachip, a freeman of London, who had been kidnapped by a press gang in 1777. He described the practice of pressing as “a warrant to take a man by force, to drag him away, like a thief, to a floating prison (the most dangerous and detestable of them all); that, by imprisonment and duress he may be compelled to enter into an involuntary servitude.”[56] Sharp claimed that pressing the poorer and seafaring elements of the citizenry was intolerable and that no such thing as common rights (applicable to all men) could exist where this was the case.[57] Those engaged in the press gang and those enforcing the press warrants in court were criminal and acting contrary to the King’s Peace. Those who resisted the press officers, Sharp maintained, were acting legally, in defense of their own freedom and against unjust violence. And such resisters must not be “deemed guilty of murder even if they kill the assailants, provided the killing be inevitable in their defense; and that they cannot otherwise maintain their rights.–Nay men are not only justified in defending themselves with force and arms but may also legally defend and rescue any other persons whatever that is attacked or oppressed by unlawful violence.”[58]

Sharp’s role in the history of liberty in England seems easily assured. He was both a writer and an activist; he was willing to go to court to prove his theories, and in many cases he was successful. In the case of the African Negro he determined upon a plan of action and devoted a considerable portion of his time, energy and talents toward procuring their freedom. His life, in the words of his first biographer, was the example of the inestimable “value of a single step of virtue.”[59] If his charitable virtuousness had not brought him into contact with Johnathan Strong, his life may have been spent in other directions. That small step led to his early actions on behalf of the distressed Negro, which led to his study of law, and which eventually led to the abolition of the slave-trade and finally of slavery in England. Once Sharp had convinced himself that some cause needed his help, no consideration of the difficulties or magnitude of his task would deter him.[60] “All times were, in his estimation, the proper times for pursuing what was right to be done, and no time so particularly proper as the present instant.”[61] Such was the man and his life.

Sharp represents a tradition extending back to the Magna Carta of 1215, which provided that “no freemen should be killed, imprisoned, or disseised except by lawful judgment of his peers or by the law of the land.” During the reign of Edward III (in the mid-1300’s) Parliament bad revised the “law of the land” provisions by extending the Magna Carta’s applicability to all men, not just freemen: “no man of whatever estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death without being brought in answer by due process of law.” The Habeas Corpus Act of 1679 “explicitly extended the prosecution of the Great Writ to ‘Any person or persons.’”[62] Sharp argued that these provisions gave all persons in England a statutory right to contest their restraint through the courts. He believed that the Great Writ affirmed the natural right of all men and women to their own freedom and that the same principles of natural law and English Common Law applied to all people, regardless of their color or status. “Liberty was his darling object.”[63] He was an extreme votary of the habeas corpus writ.

The motivation of any great libertarian must be a passion for justice, which Sharp definitely embodied. He thus represents a strong link in the historic chain of English liberty, extending as it does from the Magna Carta, through medieval Parliaments, to the Bill of Rights and the Habeas Corpus Act. That chain of history has linked itself to the American Revolution of the 18th century, the antislavery movements of the 19th century, and the libertarian movement of the 20th century.

NOTES

1. F.O. Shyllon, Black Slaves in Britain (London: Oxford University Press, 1974). p. 29. This is the best full-length study of Sharp, drawing on his private papers.

2. Prince Hoare, Memoirs of Granville Sharp, 2nd ed., (London: Henry Colburn, 1828). 1:44. This is the first biography of Sharp.

3. Shyllon, Black Slaves, p. 21.

4. The last quotation appears in Sharp’s The Case of James and Granville Sharp, As Far As They Are Concerned with James Kerr, Esq. See Shyllon, Black Slaves, p. 22.

5. Ibid., pp. 22-23.

6. See Thomas Clarkson, The History of the Rise, Progress, and Accomplishment of the Abolition of the African Slave-Trade by the British Parliament (London: R. Taylor & Co., 1808; reprinted., London: Frank Cass & Co., 1968). p. 71. Clarkson’s is a broad, general account of the anti-slavery crusade in England. written by a young contemporary of Sharp.

7. Shyllon, Black Slaves, pp. 31-33.

8. Clarkson, African Slave-Trade, p. 72.

9. Shyllon, Black Slaves, pp. 33-34.

10. Ibid., p. 41.

11. Ibid.

12. Ibid., p. 42.

13. Ibid.

14. Ibid., p. 43.

15. Ibid., p. 45.

16. Clarkson, African Slave-Trade, p. 74; Hoare, Memoirs, 1:81-82.

17. Hoare, Memoirs, 1:92.

18. Clarkson, African Slave-Trade, p. 76.

19. Cappel Lofft, 98 English Reprints, 510.

20. Shyllon, Black Slaves, p. 125.

21. Ibid., p. 127.

22. Ibid., pp. 125-126.

23. Ibid., p. 85.

24. Lofft, English Reprints, pp. 499-500.

25. Ibid., p. 501.

26. Shyllon, Black Slaves, pp. 91-92.

27. Ibid., p. 99.

28. Ibid., p. 100.

29. Lofft, English Reprints, p. 503.

30. Ibid., p. 504.

31. Ibid., p. 508.

32. Ibid., p. 510.

33. See William M. Wiecek, “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42 (Fall 1974): 87.

34. Hoare, Memoirs, 1:137.

35. Ibid., p. 132.

36. Ibid., 137-38. Reprinted from William Blackstone, The Commentaries on the Laws of England, 1st ed. (1765), bk. I, p. 123; 2nd ed. (1766), 3rd ed. (1768).

37. Shyllon, Black Slaves, pp. 66-67.

38. Ibid., pp. 192-97.

39. Ibid., p. 196.

40. Ibid., pp. 194-97.

41. See Robert Weisbord, “The Case of the Slave-Ship ‘Zong,’ 1783,” History Today 19 (August 1969): 567.

42. Hoare, Memoirs, 2:234-35.

43. Ibid., 1:100.

44. Ibid., 1:185-86.

45. Shyllon, Black Slaves, p. 137.

46. Granville Sharp, An Address to the People of England (London: 1778), p. 74. (Copy from Duke University Library.)

47. Shyllon, Black Slaves, p. 138.

48. Ibid.

49. Sharp, Remarks on Crown Law (London: B. White & R. Horsfield, 1773), title page. (Copy from Library of Congress.)

50. Ibid., p. vi.

51. Ibid., pp. xii-xiv.

52. Ibid., pp. 66-68.

53. Hoare, Memoirs, 1:l01.

54. Sharp, Address, pp. 33, 44.

55. Ibid., p. 46.

56. Ibid., p. 57.

57. Ibid., pp. 64-65.

58. Ibid., p. 71.

59. Hoare, Memoirs, 2:269.

60. See E. C. P. Lascelles, Granville Sharp and the Freedom of Slaves in England (London: Oxford University Press, 1928), p. 136.

61. Hoare, Memoirs, 2:323.

62. Wiecek, “Somerset,” p. 97

63. Hoare, Memoirs, 2:384

by Carl Watner
1987

[This article appeared in Volume 8, THE JOURNAL OF LIBERTARIAN STUDIES (Summer 1987), pp. 293-309.]

It would probably be looked upon as unusual to associate sixteenth century Spain with the libertarian tradition. However, during that time there arose a school of natural law thinkers and activists who espoused a universal ethic of freedom, which they saw as applicable to all mankind. Sixteenth century Spain was the golden age of Spanish culture and humanism. Unlike other European countries of that age, the Spaniards were vitally concerned with the moral problems of conquest, conversion, and the government of heathen peoples.[1] What constituted justice and how it could be achieved were everywhere concerns of the Spanish theologians, jurists, and statesmen. To these Spaniards, the basis for the just title by which they ruled the Indies was a palpable question through much of the sixteenth century.[2] Although the Spanish natural law thinkers never truly broke outside the feudal-statist mentality of their culture to become anarchists, they did elaborate a doctrine of natural rights based on both divine and human reasoning. In a very broad way, and using very typical libertarian logic, they elucidated a proprietary theory of justice by which they denounced the violent invasion and conquest of the New World and supported the rights of the native inhabitants. This was one of the greatest attempts the world has ever seen to make natural law precepts prevail in relations between peoples. Such was the Spanish concern for justice in its colonizing efforts, that its monarchs organized several major inquiries into the methods used to extend their empire. Spain is probably one of the few nations that, after having searched its “royal” conscience in light of natural law and Christian teachings, ever revised its colonial policy in order to correct and punish abuses.[3]

Within the context of the libertarian tradition, natural law is an ethic that is applicable to all mankind. When libertarians think of freedom, they think in terms of all men, women, and children being free from the coercive interference of other persons.[4] Libertarians extend freedom to everyone. “All mankind is one”–in the libertarian sense that all people have individual rights, regardless of their age, sex, religion, geographical location or other particulars.[5] Such rights are derived from the fact of their bodily existence, which implies the existence of a self-ownership and homesteading axiom. The vitality and brilliance of the sixteenth century Spanish jurists was that they were objective and logical enough to apply these principles to the Indians of the New World, even when it meant going against the vested interests of the Spanish Crown. They could have become apologists for government intervention, justifying enslavement, forced labor, and illegitimate property titles in the land violently wrested from the Indians. Well-known European advocates, such as Ginés de Sepúdveda and other Spanish imperialists, actually defended the Conquest. Yet others, such as Francisco de Vitoria, Domingo de Soto, and Bartolomé de las Casas, fought for and established the rights of the natives on the basis of their having a common human name with Europeans. These men displayed a keen insight into the essentials of justice and right, based on the scholastic writings of earlier centuries.[6] Without exception, all the Spanish theological-jurists “defended the doctrine that all men are equally free; on the basis of natural Liberty, they proclaimed their right to life, to culture, and to property.”[7]

The Spanish colonial enterprise was unique in world history because it rested on a theological-juridical foundation which gave a special character to the Laws of Burgos, the Laws of the Indies, the Conquest, and the Christianization of America. The principal architect of the Spanish theological science was St. Thomas Aquinas (1225?-1274), and the followers of St. Thomas were particularly well represented in Spain by members of the Dominican order.[8] The first Dominican missionaries arrived in the New World in 1510, intent upon carrying out the late Queen Isabella’s hopes of converting and civilizing the Indians. When they personally witnessed the violence and outrages being committed by the Spaniards and conquistadores upon the natives, their consciences compelled them to speak out against such abuses. After mature deliberation, the small Dominican community on the island of Hispaniola decided to voice its protest during a religious festival at which Diego Columbus and other high Spanish authorities would be present. The sermon was written out beforehand and was delivered by Father Antonio Montesinos.[9]

This sermon, delivered in December 1511, took as its text, “I am the voice of one crying in the wilderness.” After Montesinos completed his introduction and said something about the subject of the religious holiday, he began to emphasize the aridity of the Spanish consciences on the island of Hispaniola, and the ignorance in which the Spaniards on the island lived. After pointing out that he, Montesinos, was the voice of Christ in the “wilderness” of the island, he warned his audience that they “are all in mortal sin and live and die in it, because of the cruelty and tyranny they practice among these innocent peoples.”

Tell me, by what right of justice do you hold these Indians in such a cruel and horrible servitude? On what authority have you waged such detestable wars against these people, who dwelt quietly and peacefully on their own land? Wars in which you have destroyed such infinite numbers of them by homicides and slaughters never before heard of! Why do you keep them so oppressed and exhausted without giving them enough to eat or curing them of the sicknesses they incur from the excessive labor you give them, and they die, or rather, you kill them, in order to extract and acquire gold every day?[10]

The sermon, which fell like a bombshell on the Spaniards, brought forth protests from all the leading men of the island, including Admiral Diego Columbus and the royal representatives of the king. They all agreed to rebuke the Dominicans for preaching such a new and unheard of doctrine, which condemned them all. After haughtily meeting with Montesinos’ superior, Fray Pedro de Córdoba, they calmed down enough to present their complaints. The Admiral asked “why that father had dared preach things in such disservice to the king and so harmful to the whole land, by affirming that they could not possess Indians after the king, the lord of all the Indies, gave them to them–especially since the Spaniards had won those islands with great hardships and had subjugated the pagans who held them. And since that sermon had been so scandalous . . . they had decided that that father should retract everything he had said; if not, they would undertake to arrange a fitting remedy.”[11] After further beseeching and argument, the Dominicans finally agreed that Father Montesinos would return to preach the next Sunday and would go back over his subject “and say what seemed best to him about it, and, as much as possible, would try to satisfy them and explain everything he had said. This having been agreed upon, the officials departed, happy in this hope.”[12]

When the hour for the next sermon came, Father Montesinos mounted the pulpit and announced as his text for the basis of the retraction a saying from St. Job, “I will go back over my knowledge from the beginning and I will prove that my discourse is without falsehood.” That is, “I will go back to rehearse from the beginning my knowledge and the truths which I preached to you last Sunday and 1 will show that those words of mine which embittered you are true.” He began to elaborate with more arguments and facts what he had affirmed before:

“… that those oppressed and exhausted peoples were held unjustly and tyrannically. He repeated his understanding that the Spaniards could certainly not be saved in the state they were in, and therefore in time should heal themselves. He made them know that the friars would not confess a man of them, any more than they would confess highway robbers, and that the Spaniards might proclaim and write that to whomever they wished in Castile. In all this, the friars considered it certain that they were serving God and doing the king no small favor.”[13]

The news of these two sermons arrived in Spain, very much distorted and much to the discredit of the conscientious Dominicans. King Ferdinand, astounded by the reports of infidelity and treason among the Dominicans, summoned the provincial of the Order, who similarly shared the surprise of the king and wrote a long and famous letter to the missionaries of Hispaniola. However, the friars themselves were not passive in the face of falsehood and slander. Montesinos and Córdoba returned to Spain to present their case to the king. The king’s officials tried to prevent this and went so far as to send a Franciscan missionary to court to counteract the reports of the Dominicans. However, Montesinos was able to convince the Franciscan and bring him over to his point of view. It was then that the king, shocked by what he now heard of Spanish atrocities, said, “Is this possible?” Having been properly informed of Spanish outrages against the Indians, Ferdinand summoned the juntas of Burgos and Valladolid, in which, together with other jurists and theologians, five Dominicans took part. From these juntas came the Laws of Burgos of 1512 and those of Valladolid of 1513.[14] These codes were promulgated by Ferdinand in an attempt to limit the demands of the Spaniards upon a conquered people.”[15]

This controversy over the treatment of the Indians, and the eventual formulation of the much celebrated Laws of the Indies in 1542, could never have come about without the theological-juridical and Thomist tradition of the Dominican order. Those first missionaries did not protest solely from the natural and Christian impulse of humanity and compassion; they were learned men formed in Salamanca and other centers of Dominican instruction in Spain. Their protests stemmed from the theological and juridical theses reflected in the report of Father Montesinos: “Are the Indians not men? Do they not have rational souls? With what right do you keep them in servitude? With what authority have you waged these detestable wars against these peoples who lived peacefully in their own lands?” To the credit of all the Spanish monarchs, Ferdinand, Charles I, and Philip II, they all sought to make their work in America conform to the doctrines of the Dominican missionaries and theologians, such as Vitoria and de Soto. Although their efforts may have failed owing to improper enforcement and the greed of themselves and their officials, “no other theological-juridical problem of sixteenth century Spain revealed such an unanimity of opinion among Spanish thinkers, as that displayed in the problems arising from the Conquest and Christianization of America.” The Laws of the Indies serve as proof.[16]

Francisco de Vitoria (1483?-1546) was probably the most noted scholastic scholar in all of Spain during the first half of the sixteenth century. He was literally a teacher of teachers at the University of Salamanca from 1526 till his death, during which time the University produced most of the great theologians and missionaries for America. In 1532, he delivered lectures, subsequently published under the title Relección de los lndios, or Readings on the Indians and on the Law of War, which set forth certain fundamental principles of law in the course of analyzing and defending the rights of the Indians. Vitoria has been referred to as the father of modern international law. He examined and rejected the various alleged justifications for the subjugation of the Indians, maintaining their rights to the lands they occupied and their freedom from any compulsion in the acceptance of Christianity, and limiting the intervention of the Spaniards to the organization of a government on behalf of the welfare of the Indians.”

The Thomist tradition formed the central part of Vitoria’s system. From St. Thomas, Vitoria received these two fundamental principles:

1. The divine law, which proceeds from grace, does not annul human law, which proceeds from natural reason. 2. Those things that are natural to man neither are to be taken from nor are to be given to him on account of sin. In other words: That which is natural, be it called law or right, faculty or power, is so consubstantial with the being of man that it remains immutable in every class of men and he cannot lose it or acquire it through sin, whether he be Christian or pagan, black or white.

Using these postulates, Vitoria analyzed and offered his solution to the colonization problems of the Indies. His analysis of the justice of the situation resolved itself into three questions: “By what right have the barbarians or natives of the recently discovered New World been placed under Spanish rule? What temporal and civil power do the Spanish kings have over those natives? What are the limits of the power of the Spanish monarchs, or the church or the popes, over the Indians in what pertains to spiritual or religious matters?”[18]

Vitoria ultimately reduced his preliminary questions to one fundamental issue. Were these barbarians or natives of the New World true masters of their countries, and hence true owners of their properties and capable of having legitimate princes or rulers? Vitoria’s answer inevitably flowed from the two Thomistic principles stated above, “and dealt a crushing blow to the medieval errors that presented the Indians as barbarous, savage, indolent, and incapable of governing themselves. Following the classic custom of theologians, Vitoria first enumerated the arguments of his foes, which constituted a synthesis of the contemporary ideology and its classical citations from Aristotle,” defending two forms of human nature–the slave and the master.[19]

“Vitoria’s reply to these arguments was incisive: Mortal sin does not deprive a man of his civil rights, of his true dominion over himself and his property.[20] In other words, the dominion or right of a man, of all men without distinction of race or culture, to use inferior objects as his own is a natural right which is not annulled by mortal sin, paganism, or the vices of the barbarian, uncouth peoples.” Domingo de Soto, Vitoria’s comrade at Salamanca, corroborated this thesis: “Those who are in the grace of God are not a whit better off then the sinner or the pagan in what concerns natural rights.” Vitoria also cited the opinion of St. Thomas: “Paganism annuls neither natural rights nor human rights.” The Indians did not lose their rights because of their backwardness or sins against nature or their savage condition. From all this, Vitoria concluded in his Relección de los Indios that the Indians of the New World were without doubt true owners, publicly and privately, of their lands and estates, whether they were princes or private persons, just as Christians were in their own lands, and could not be stripped of these rights. Vitoria strongly defended the equal rights of all men. Anticipating and elaborating on both the self-ownership and homesteading axioms, he did not consider discovery as the sufficient basis for ownership of new lands. If the Indians of the New World are owners of their land by natural and human right, as Vitoria claimed, the arrival of foreign navigators and seamen meant nothing. From this point of view, the Spaniards had no more right to America than the Indians would have had if they had discovered Spain and the rest of Europe. The title was false because this had not been a discovery of deserted, ownerless land. The Indians were the owners of their lands by the same right that Spaniards owned their land in Spain.[22]

Thus did Dominicans assert “the Thomist principle that natural rights come before all other rights, divine, positive, ecclesiastical. Natural law is at the base of all other laws; its provisions take precedence over the provisions of the laws of nations, international law, and the various national civil laws. To be sure, a man might lose his rights, even his natural rights, but not through sinning qua sinning–only through the commission of crime, of injury, by offending society and the natural and human rights of other men.” The Spanish theologians preached these verities without consulting the interests of their monarchs or country. Their integrity and respect for the truth as they understood it shines out above all. “The Spanish monarchs were not offended, nor did they halt these controversies when they were told the truth. On the contrary, they made these doctrines their own and sought to make their laws conform to them.” The formulation of the Laws of the Indies in 1542 was largely based on the arguments of such men as Vitoria and Bartolomé de las Casas.[23]

The integrity and renunciation of worldly interests by the Spanish theologians is perhaps best represented by Bartolomé de las Casas (1474-1566). His “chief merit consists in having had the courage to renounce all material interests” and to have embraced “the justice and truth espoused by the first Dominican missionaries” and teachers “and to have defended these principles on behalf of the Indians for over half a century.”[24] It is important to understand that las Casas, known as the Apostle or Protector of the Indians, was only one of the many Dominicans who took an interest in the affairs of the Indians. He defended their proprietary rights and demanded restitution for the violation of their liberty and property. While he could not rise to the theoretical insights of a Vitoria or de Soto, he did write and publish many, many theses and books in defense of the Indians, such as his well-known History of the Indies. Bartolomé de las Casas is important to us because he represented a set of ideas systematized by men like Vitoria and de Soto and because he gave his body and soul to the defense of such ideas without fear of adversity, censure, intrigues, or calumnies.[25] From this point of view he is without an equal.[26]

Las Casas clearly reflects the thinking of the Spanish Renaissance scholars of natural law. In all his treatises, he affirmed the natural liberty and dominion of the Indians and their princes to their lands, by virtue of their being men with all the natural and human rights that entailed.[27] Las Casas received a good Latin education in Spain and was greatly influenced by the discovery of the New World. His father and two uncles sailed with Columbus on his second voyage, and when they returned in 1498, las Casas was presented with a young Taino Indian, who was to be his servant. In early 1502 las Casas, himself, embarked on his first trip to the New World. He was commissioned a doctrinero, which meant that his Latin ability afforded him an opportunity to instruct the Indians in Christian doctrine. In Hispaniola, las Casas lived like the other colonists, received an encomienda and helped to put down Indian uprisings against the Spaniards.[28] The encomienda system was based on the “giving” or “commendation” of the Indians to the Spaniards, who became encomenderos. This grant by the Spanish crown gave the Spaniards the right to exact labor or tribute from the Indians; in return, the encomenderos were obliged to provide religious instruction and protection.[29]

During the years 1506-1507, las Casas traveled back to Europe and visited Rome, where he was advanced to a deaconate. He was back in Hispaniola by 1511 and apparently was a firsthand witness to Father Montesinos’ sermon (the only contemporary historical record of this event is found in his History of the Indies). However, it was not until several years later, that the impact of the sermon reached las Casas’ consciousness. In 1513, he served as a chaplain during the Spanish conquest of Cuba. He was awarded another large encomienda and with the help of his partner, Pedro de Renteria, prospered in farming and trade. A year later, while preparing a sermon, las Casas came across the Biblical saying, “Tainted his gifts who offers in sacrifice ill-gotten goods” (Ecclesiasticus 34). Having witnessed the Spanish slaughter of the Indians in Cuba, as a literal blood-bath, las Casas was troubled about the justice of his holdings. Were his offerings derived from Indian lands and Indian labor actually ill-gotten goods? What he had heard from Father Montesinos and the other Dominicans on Hispaniola only served to reinforce his doubts. Moreover, another Dominican priest had refused to hear las Casas’ confession because he was holding Indians.[30]

After spending a few days with these thoughts and having each day become more sure “from what he read of natural and divine law, and from the events he witnessed–applying the first to the second–he decided for himself, convinced by truth, that everything done to the Indians in these Indies was unjust and tyrannical.”[31] Finally he decided to preach this message in his sermon, but not before giving up his holdings in land and Indians. In order freely to condemn the encomenderos and the enslavement of the Indians, he felt it necessary to cleanse his own hands of such injustices. He thus decided to consult his partner and surrender his lands and Indians back to the governor, who was to consider them unclaimed and do with them what he would.[32] Las Casas thereupon preached a number of sermons against his fellow Spaniards, which shocked them as much as they had been shocked by the sermon of Montesinos. Henceforth, las Casas devoted his life to the Indians, and in every book he read, “whether in Latin or Spanish, he found additional reasons and authorities to prove and corroborate the justice of those Indian people and to condemn the robbery, evil, and injustice committed against them.” Las Casas was to follow this path, chosen in his fortieth year, for the remaining fifty years of his life. It is not too much to say that the struggle for justice for the Indians would have been much less stoutly and persistently fought without him.[33]

After undergoing this change of mind and heart, las Casas re-crossed the ocean, arriving in Seville in October 1515. His intent was to present his case to King Ferdinand, but he was foiled by the monarch’s untimely death. Nevertheless, he was able to present his case against the Spanish conquest to Secretary Lope Conchillos, who tried to offer him favors in the New World if he would call off his campaign on behalf of the Indians. He also spoke to Bishop Juan Rodriguez de Fonseca, the overseer of Indian affairs in Spain, who listened impatiently to las Casas’ account of Indian sufferings and scornfully inquired, “What is this to me?” “What is it to your lordship and to the king that those souls die?” retorted the “choleric” las Casas. “Oh great and eternal God! Who is there to whom that is something?”[34] During the following years, until his departure for the New World again in 1521, las Casas continued his campaign for Indian justice undismayed. He hatched various schemes of colonization to serve as alternatives to the encomienda system, and one of his efforts to establish a utopian colony in Venezuela was dramatically unsuccessful.

In 1522, las Casas entered the Dominican novitiate at Santa Domingo and, one year later, became a professed Dominican. For the next eleven years, in his own words, he “to all appearances, slept,” while the tide of Spanish conquest swept over Mexico and Peru. During these years he devoted himself to contemplation and the study of theology and law. In 1527, he founded the Dominican monastery at Puerto de Plata on the north end of Hispaniola. Here, as prior, he refused to grant absolution to Spanish colonists unless they would make restitution for goods and services taken from the Indians.[35] He also began work on his famous History of the Indies. In 1537, in response to the papal bull “Sublimis Deus”, which affirmed the Church’s conviction in the rationality of the Indians and in their ability to receive the faith, las Casas wrote in Latin, The Only Method of Attracting People to the True Faith. In this work he refuted the arguments that armed conquest was a necessary preliminary to conversion of the Indians. Las Casas demonstrated the inexpediency and injustice of all wars against the Indians and pleaded for their peaceful conversion. “War also fills every place with highwaymen, thieves, ravishers, fires, and murders,” wrote las Casas. In true libertarian style, he asked, “Indeed what is war but general murder and robbery among many?”[36] To prove the merits of his arguments, in 1537, he undertook the peaceful conversion of fierce Indian tribes living in an area called the Land of War in northeast Guatemala.

Finding the need for more missionaries in Guatemala, las Casas journeyed to Spain in 1540. He recruited Dominicans for his mission and won the support of his superiors for his view that the Indians should not be baptized en masse. He received permission to remain in Spain until Charles V returned from war with France, hoping thereby to present anew his complaints against the methods of the conquistadores. He wrote the first version of his Very Brief Account of the Destruction of the Indies and read it at court to shock his hearers with lurid details of Spanish cruelty. He charged members of the Council of the Indies with corruption and argued in favor of abolishing the encomienda system and placing all Indians under the trusteeship of the Crown. The New Laws of the Indies, promulgated in 1542, were partly a response to las Casas’ campaign at court. Confirming the hostility of Charles V to the development of a neo-feudalism in the New World, the New Laws announced that no more Indians were to he enslaved, officials were to be deprived of their encomiendas, and all other encomiendas were to be transferred back to the Crown upon the death of their holders.”[37]

Hoping to see his efforts ripen in the New World, las Casas sailed for Peru in 1544. News of the New Laws had already reached Mexico and Peru, and had set off protests against its provisions. When las Casas announced to the Spaniards in Chiapa, Mexico, where he accepted a bishopric, that he would refuse absolution to any Spaniard who did not free his Indiana slaves or make restitution of wealth gained from the encomiendas, he was nearly forced out of the colony. Owing to the widespread revolt against the New Laws, in 1545 Charles revoked the key law of inheritance, which had provided for the phasing out of the encomiendas. In June 1546, while preparing to depart from Mexico City for Spain, las Casas composed his “confesionario” or rules for confessors to be applied in his own diocese. The contents of his “Confesionario” created a scandal and caused las Casas to be accused of treason. He insisted that every penitent free his Indian slaves and make full restitution before receiving absolution–no matter what heirs were waiting for his property–because the penitent’s wealth had been unjustly acquired.[38]

When las Casas reached Spain, he found himself on the defensive. He had to spell out his theory of Spain’s title to the Indies, which was that Pope Alexander VI had granted Spain only the right to evangelize the natives, not to conquer and make slaves of them. He also encountered, for the first time, the well-known champion of the conquistadores’ point of view, Ginés de Sepúlveda, who was the emperor’s chronicler and Renaissance humanist. In 1548, las Casas had helped prevent the Spanish publication of Sepúlveda’s Democrates Alter, which defended wars of conquest. In return, Sepúlveda played a part in the government’s confiscation of las Casas’ “Confesionario.” Las Casas tried to stem the reaction by redoubling his protests against Spain’s exploitation of the Indian. Finally Charles V became so troubled by las Casas’ criticisms that he ordered all conquest in the New World halted. This was in 1550, and soon thereafter a commission of theologians jurists was appointed to hear Sepúlveda and las Casas debate the justice of the conquest and to decide on the most lawful method of carrying out the Spanish occupation of America.[39]

The great debate took place in 1550, between July and September, in Valladolid, and was heard by many of the great university theologians and jurists of Spain. Sepúlveda argued that the Indians’ vices justified war against them and that they were also an inferior race needing Spanish tutelage. They were “slaves by nature” in the words of Aristotle’s Politics. Las Casas replied by defending the Indians’ rationality and liberty.[40] Without recounting their arguments, it is not too much to say that Sepúlveda’s ideas failed to win official approval. Spain, through the mouth of las Casas, made a substantial contribution toward the development of one of the most important hypotheses ever set forth–the idea that the Indians discovered by Spain in the New World were not beasts, not slaves by nature, not childlike creatures with a limited understanding, but rather men capable of becoming Christians, with the right to enjoy their property, political liberty, and human dignity, who should be incorporated into the Spanish and Christian civilization rather than being enslaved or destroyed. “When las Casas spoke at Valladolid for the American Indians, his argumentation . . . strengthened the hands of all those who in his time and the centuries to follow worked in the belief that all the peoples of the world are human beings with the potentialities and responsibilities of men.”[41]

Though the judges never rendered a formal decision, las Casas was inspired by the successes he had accomplished in Spain. There was still much work to be done on behalf of the Indians, and since he felt it could best be done in Spain, in 1551 he arranged for lifetime residence in the Dominican monastery at Valladolid. This gave him the leisure and time to devote to his studies and writings about the New World and the Indians. He now became permanently and universally recognized as “Protector of the Indians.” During 1552, he published seven treatises at Seville. They included his controversial “Confesionario,” two treatises on Spain’s title to the Indies, an attack on Indian slavery, an attack on the encomienda system, a summary of his debate with Sepúlveda, and his already written Very Brief Account of the Destruction of the Indies. Between 1554 and 1560, he fought his last major battle on behalf of the Indians. Peruvian conquistadores were making an effort to have their encomiendas made perpetual by offering the new Spanish monarch, Philip II, some 7-9 million ducats. Las Casas arranged to get powers of attorney from the Peruvian tribes and offered to better the bid of the conquistadores by 100,000 ducats. Eventually the proposal was dismissed, but not before las Casas had written of the Spaniards in the New World: “The best thing imaginable would be to cast them, the Spaniards, all out, except a few chosen ones”[42]

Instead of gracefully or even gradually retiring, las Casas kept on campaigning for recognition of Indian rights almost to the day of his death. During the last decade of his life, he followed the regal court about clamoring for justice for the Indians–and most often obtaining it.[43] “The old holy man” was both an Old Testament prophet and a canon lawyer.[44] In true libertarian style he became more radical as he grew older.”[45] If anything, his final positions hardened.[46] He became more rigid on his insistence of restitution to the Indians.[47] In the years after the failure of the New Laws, las Casas became more and more determined and energetic. His earlier view of considering the conquest and the encomiendo system as abuses by individual Spaniards could not be continued when the Crown itself supported them. “Then it was that las Casas began to abandon his ancient regalism to give himself over to the defense of his thesis, even when it was contrary to legal decisions of the king, finding support for his views in the Thomistic theory of natural law.” Earlier, “las Casas had recalled to Phillip II that the prince could not make just by his laws what natural law held to be unjust. The regalism of las Casas now seems to disappear entirely when he sees that the Crown has decided on a matter involving conscience in the light of its own material interests.”[48]

Las Casas carried on extensive correspondence with his disciples throughout Spain and the New World. He represented many of the Indian tribes at court under powers of attorney. In 1559 he completed his Apologetic History, and by 1564 had finished his History of the Indies. The latter work is a pioneer study in anthropology, containing detailed descriptions of the Indians’ lands, social and political organization, and customs. Las Casas also made a very important contribution to New World historiography by preserving the single greatest document on the discovery of America, the journal kept by Columbus as he proceeded westward on his first voyage. The journal, which has not survived, was transcribed by las Casas and used in writing his History.[49]

A few days before his death in Madrid in 1566, he had a colleague present a petition concerning Indian rights to the Council of the Indies. Less than three weeks before, he had prevented certain Indians of Guatemala from being given in an encomienda. In his will, dated March 17, 1564, he described his vocation and told how he had labored for fifty years for his people, the Indians:

In His goodness and mercy, God considered it right to choose me as his minister, though unworthy, to plead for all those peoples of the Indies, possessors of those kingdoms and lands, against wrongs and injuries never before heard of or seen, received from our Spaniards . . . and to restore them to the primitive liberty of which they were unjustly deprived. . . . And I have labored in the court of the kings of Castile going and coming many lies from the Indies to Castile and from Castile to the Indies, for about fifty years, since the year 1514, for God alone and from compassion at seeing perish such multitudes of rational men, domestic, humble, most mild and simple beings, well fitted to receive our Catholic faith . . . and to be endowed with all good customs.[50]

Las Casas was truly a heroic figure; today, throughout much of Latin America, he is considered a true saint. There is only one blotch on his escutcheon, yet even this stain serves to demonstrate his concern for justice and right. In his History of the Indies, las Casas tells that at the beginning of his crusade, and with the object of securing freedom for the Indian, he had advocated that the Spaniards be permitted to bring Negro slaves to the New World. He states that later he came to regret this, having realized the injustice of the ways in which the Portuguese took blacks and made them slaves. From that time onward, he spoke of Negro enslavement as being equally unjust and tyrannical as that of the Indians, because Negroes possess the same powers of reasoning as do Indians.[51]

Las Casas did not ultimately reject the institution of slavery, but he did demand that its legal requirements be fulfilled.[52] This was in line with the thinking of other Dominicans, such as Vitoria, who claimed that those Negroes enslaved in legitimate war, among themselves, could be sold as slaves to the Europeans. The case of the Indian was different, from las Casas’ view, because the Spaniards had entered into unjust wars against them. Therefore no legitimate slaves could be taken. In his memorial of 1543, las Casas offered to prove that not even a single Indian could lawfully be enslaved. In another treatise, las Casas wrote that all men are free “if the contrary is not proved” and that their natural freedom can be lost only by accident or special circumstances–not by nature as Sepúlveda maintained.[53] Several Spanish thinkers, besides las Casas, anticipated the English and American antislavery movement of the nineteenth century. An interesting episode is related by Friar Tomás de Mercado, a Spaniard, in 1569. He relates that the theologians of Seville and Castile asked the theologians of Lisbon whether they approved of the African slave trade, which was taking place under the Portuguese emperor. The latter replied by asking whether the Sevillians and Castilians thought that theology in Lisbon was different from theology in Seville, and saying that they, in Lisbon, condemned the slave trade just as much as the Spanish theologians did.[54]

As Protector of the Indians, las Casas came to advocate restitution, whereby the Spaniards would have to return to the Indians the land and property stolen from them. The requirements of full restitution were contrary to the interests of the Spanish colonists, as evidenced by their rejection of the New Laws of 1542. However from las Casas’ point of view, open or even covert refusal to make restitution to the Indian was equated with cases of simple theft, which in conformity with the norms of Christian doctrine barred the offending encomendero from absolution by a priest. The same was true of an encomendero who had not paid Indians for their work, or had sent them illegally to the mines, or taken their goods without payment. According to the rules of las Casas’ “Confesionario,” such offenses deferred absolution until the delinquents had made reparation. They had the recourse of complaining or litigating in the Council of the Indies, but they could not receive absolution or make their peace with the church because they had not repaired the mischief done and had retained property that belonged to others.[55] “The restitution of Indian property and other rights was represented as the collective obligation of all the participants in the Conquest.” Las Casas also “insisted on the perpetual right of the Indians to wage war against the Spaniards, until the just cause of such war disappeared. . . . He asserted that the Spaniards could not collect tribute without committing mortal sin” and he “reminded confessors that they had no right to collect as much as a penny for performance of their duties if they did not exhort and persuade those who had robbed the Indians to make restitution. Nor could the church collect tithes or accept alms that had originally been ‘stolen.’ Anyone who took gold from the native temples or graves committed robbery. No Spaniard could gain salvation if he did not return all the lands he had taken from the Indians.”[56]

Las Casas often referred to restitution, especially in his later years, and he had even written a treatise on the subject, which has not survived. In a “representation” of 1542, las Casas wrote: “All the goods that all the conquistadores in all the Indies possess were robbed and taken with enormous violence from their owners, the Indians. All the world knows this, and the conquistadores themselves recognize and admit this. . . .”[57] He proposed that the pope be requested to order “a general composition” of goods or riches whose owners or heirs were dead or unknown. Las Casas requested that in the case of properties

whose owners or heirs are alive, Your Majesty should order their restitution to their proper owners. . . . But in the case of those who are dead or have not left heirs, using the said license and authority of the Pope, Your Majesty is obliged to order the best and most favorable restitution possible, to the people of the said lands. . . . And this Your Majesty must not fail to do, with all your power, for restitution of stolen property or for injuries done to the innocent is commanded by both natural and divine law, which Your Majesty cannot set aside or weaken.”[58]

Las Casas maintained that the King, who had received a large share of the booty of the conquistadores, should waive his rights to all future tribute from the Indians. Las Casas specifically required restitution from three classes of persons: those who had taken or still took up arms as conquistadores; encomenderos who held Indians in encomienda; and merchants who supplied arms and material for wars against the Indians.[59] None of these people were innocent of wrong doing. In sum, las Casas thought that all the Spaniards had done in the Indies was null and legally invalid because it had been done without the authority of their king and without natural justice.[60] Las Casas’ restitution theory had a definite impact in Latin America, especially in Peru where the archbishop of Lima, Fray Geronimo de Loaysa, gave it serious attention. First, a junta of theologians was summoned, later, the second council of Lima, over which Loaysa presided, considered the significance of restitution to the Indians. The council decreed that “those who have gravely injured the Indians must cease their oppression and restore what has been unjustly taken from them, since the sin continues if restitution is not made.” The decree explained how restitution was to be made if the injured parties were not known or had left no heirs, and it admonished notary publics to propose to testators just means for making good the injuries they had caused. Las Casas’ doctrine on the strict application of the Christian norms of restitution of unjustly acquired property deeply penetrated the Church in Peru. “The trail of las Casas can he recognized with the most absolute certainty, especially in the rigorous condition that restitution must be specified in a public instrument that was made out before confession by conquistadores and encomenderos.”[61]

There is no question but that the natural law theories of a Vitoria and the demands for restitution by las Casas fall within the libertarian tradition. The central thrust of that tradition is to oppose any and all forms of invasion against property rights of individuals in their own persons and in the material objects they have voluntarily acquired. Adopting the criminal metaphor, we may say that governments are like organized gangs of banditti, negating property rights and surviving by imposing territorial jurisdiction and taxation on those they conquer.[62] This description aptly fits the history of the Spanish conquest in the New World. The scholastics of sixteenth century Spain saw that the Indians were deprived of their personal Liberty, their lands, and their moveable property. Without a doubt they were forerunners of later groups comprising the libertarian tradition: the Levellers and opponents of Charles II in seventeenth century England, the American rebels revolting against England in the eighteenth, and the English and American anti-slavery radicals of the nineteenth century. These Spaniards were unable to envision the existence of a truly libertarian society and free market, given the semi-feudal state they lived in, but they did realize that legitimate property titles were essential to defining justice in any given situation. Only by inquiring into the justice of property titles, which they rightfully grounded on homesteading and self-ownership, and demanding rectification of injustices wherever they were found, could these Spaniards rest easy with their consciences. The entire Third World concern with land reform today points back to the same concerns of these sixteenth century Spanish clerics and jurists.[63] At the base of their theological-juridical system was a fundamentally libertarian postulate. Humanity, in their eyes, was a single universal society–by natural law. Although we might not accept their theology, they maintained that God, lord of the universe, created man in order to people the world and exploit its natural resources. Natural law makes men–all men without distinction of frontier or race–members of this world community by birth. “Man is a citizen of the world by natural law.”[64] “All mankind is one” as we have stated, in the sense that all peoples of the world have individual rights. What more beautiful illustration of the libertarian tradition at work in sixteenth century Spain could one ask for?

Notes

1. Encyclopaedia Britannica, 15th ed., s.v. “Spain, History of.”
2. Lewis Hanke, Bartolomé de las Casas , An Interpretation of His Life and Writings (The Hague: Martinus Nijhoff, 1951), pp. 2, 4, 48.
3. Venancio D. Carro, “The Spanish Theological-Juridical Renaissance and the Ideology of Bartolomé de las Casas,” in Juan Friede and Benjamin Keen, eds., Bartolomé de Las Casas in History (De Kalb: Northern Illinois University Press, 1971), p. 245.
4. Murray Rothbard, For a New Liberty (New York: Macmillan, 1973), p. 43. For more on the libertarian tradition, see Carl Watner, “The Criminal Metaphor in the Libertarian Tradition,” Journal of Libertarian Studies, 5, No.3 (Summer 1981).
5. This expression was used by Lewis Hanke in his book by the same title, “All Mankind Is One”; A Study of the Disputation Between Bartolomé de las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Religious Capacity of the American Indian (De Kalb: Northern Illinois University Press, 1974). See also p. xi of this book.
6. J. Martin Littlejohn, “The Political Theory of the Schoolmen and Grotius” (Ph.D. diss., Columbia University, 1896), pp. 7-8.
7. Hanke, “All Mankind Is One,” p. 142, quoting Pereña Vicente.
8. Carro, “Spanish Theological-Juridical Renaissance,” pp. 248-49. Carro’s essay has been invaluable in writing this paper and is highly recommended.
9. The next several paragraphs dealing with Montesinos are based on selections found in Goorge Sanderlin, tr. and ed., Bartolomé de las Casas, A Selection of His Writings (New York: Knopf, 1971), pp. 81-86.
10. Ibid., p. 81.
11. Ibid., p. 83.
12. Ibid., p. 84.
13. Ibid., p. 85.
14. This paragraph is based on Carro. “Spanish Theological-Juridica1 Renaissance,” p. 245.
15. Encyclopaedia Britannica, 15th ed., s.v. “Indies, Law of the.”
16. This paragraph is based on Carro, “Spanish Theological-Juridical Renaissance,” p. 245.
17. See ibid., generally, and also Encyclopaedia Britannica, 15th ed., s.v. “Vitoria, Francisco de.”
18. This paragraph is based on Carro, “Spanish Theological-Juridical Renaissance,” pp. 251-52.
19. Ibid., pp. 252-53.
20. Ibid., p. 253 (unless otherwise noted). i
21. Carro refers to his work, Domingo de Soto y su doctrina juridico (Madrid, 1944), pp. 207-50. Referring to de Soto’s work on Justice, Carro writes: “Domingo de Solo always answered in the negative mode and supported the first principles of right [referring to the question of whether the state might not sacrifice one of its citizens, even if innocent of any wrongdoing. in order to save the remainder]. The city or Republic is not the owner of life and may not sacrifice, even indirectly, any citizen even if it is the only means proper for the defense of the rest. Even if the existence of the nation depended on the life of one innocent man, it would not be legal for the State to sacrifice his life. . . Vitoria and de Soto exploded the argument that one should sacrifice one’s arm or leg to save the rest of one’s body from infection [as a justification for the Republic’s sacrifice of one innocent citizen]. Sacrificing a citizen to the public good was not the same as amputating your leg. The two examples had no parity. The innocent person has a personality of his own, even though he is a member of the public, whereas our arms or legs do not have their own distinct personalities and are incapable of having rights separate from the rest of the body” (my translation, pp. 211-12). I am sure one could find many more libertarian arguments based on natural rights in the works of these authors.
22. See Carro, “Spanish Theological-Juridical Renaissance,” pp. 254-58, especially p. 256.
23. This paragraph is based on ibid., pp. 253-54.
24. Ibid., pp. 247-48.
25. Ibid., p. 264.
26. Las Casas’ biography is reminiscent and serves as a forerunner of latter day anti-slavery radicals and crusaders, such as the Quakers, Ralph Sandiford, Benjamin Lay, and John Woolman. See Carl Watner, “The Radical Libertarian Tradition in Anti-Slavery Thought,” Journal of Libertarian Studies 3, No.3 (Fall 1979):311-12.
27. Carro, “Spanish Theological-Juridical Renaissance,” p. 269.
28. For these and the following biographica1 details, see Sanderlin, Bartolomé de las Casas, pp. 4-24.
29. Hanke, Bartolomé de las Casas, p. 15.
30. Sanderlin, Bartolomé de las Casas. pp. 7-8. Sanderlin’s “Introduction” has been invaluable in writing this paper.
31. Ibid., p. 88, based on autobiographical writings of las Casas found in his History of The Indies.
32. Ibid., p. 89.
33. Hanke, Bartolomé de las Casas, p. 21.
34. Sanderlin, Bartolomé de los Casas, p. 9.
35. Ibid., p. 13.
36. Ibid., p. 14.
37. Ibid., pp. 15-16.
38. Ibid., p. 18.
39. Ibid., p. 19.
40. Ibid.
41. Hanke, Bartolomé de las Casas, p. 87.
42. Sanderlin, Bartolomé de las Casas, p. 21.
43. Ibid.
44. Henry R. Wagner, The Life and Writings of Bartolomé de las Casas (Albuquerque; University of New Mexico, 1967), p. 136; also Sanderlin, Bartolomé de las Casas, p. 21.
45. Sanderlin, Bartolomé de las Casas, p. 20. This reminds one of Murray Rothbard’s description of Lysander Spooner, noted constitutional lawyer and individualist-anarchist: “He became steadily and inexorably more radical as he grew older.” Libertarian Forum 6, No. 9 (September 1974);1.
46. Wagner, Life and Writings, p. 247.
47. Sander1in, Bartolomé de las Casas, p. 20.
48. Hanke, “All Mankind Is One,” p. 155, quoting Silvio Zavala. Here we readily note the implicit anarchist doctrine found in the natural rights theory of the libertarian tradition.
49. Sanderlin, Bartolomé de las Casas. pp. 21-22; see also Hanke, Bartolomé de las Casas. p. 53.
50. Sanderlin, Bartolomé de las Casas, pp. 22-23.
51. Silvio Zavala, The Defense of Human Rights in Latin America, Sixteenth to Eighteenth Centuries (Paris: UNESCO, 1961), pp. 47-48.
52. Juan Friede, “Las Casas and Indigenism in the Sixteenth Century,” in Juan Friede and Benjamin Keen, eds., Bartolomé de las Casas in History (De Kalb: Northern Illinois University Press, 1971), p. 166.
53. Ibid.
54. Zavala, Defense of Human Rights, pp. 49-50.
55. Friede, “Las Casas and Indigenism,” p. 190; see also Wagner’s remarks on restitution in Life and Writings, pp. 234-36.
56. Friede, “Las Casas and Indigenism,” p. 203.
57. Manuel M. Maninez, “Las Casas on the Conquest of America,” in Friede and Keen, eds., Bartolomé de las Casas in History, p. 340.
58. Maninez, “Las Casas on the Conquest of America,” p. 340.
59. Ibid., p. 343.
60. Ibid.
61. Ibid., p. 344.
62. See Rothbard, For a New Liberty, and Watner, “The Criminal Metaphor in the Libertarian Tradition.”
63. Roy Childs, Jr., “Land Reform and the Entitlement Theory of Justice” (Paper delivered at the Libertarian Scholars Conference, Princeton University, Princeton, New Jersey, 1977). See Childs’ “Conclusion,” especially pp. 25-27.
64. Carro, “Spanish Theological-Juridical Renaissance,” p. 258.

CARL WATNER

Two remarks will serve to introduce my subject. Several years ago, Rosalie Nichols was asked if the Indians had ever had a title deed to North America. She responded, “Who should have issued them one, I don’t know, unless it was the buffalo.”[1] Secondly, Jonathan Hughes, in his book The Governmental Habit, contrasts the allodial and socage forms of land tenure. “Socage tenure was part of the feudal order” and was inevitably carried over by the English to their landholdings in North America. It was designed to protect the interests of the feudal donor (“transformed in our time into the state”) by forcing “property owners to support the taxing power at all times” regardless of whether they desired or used state services. The property owner could never “withdraw his support” from the state by not paying real estate taxes. If he attempted to discontinue his payment, the state would confiscate his title and auction off his property to someone who would pay taxes. “This form of coercion is a product of history” and ultimately traces itself back to the principle of the Right of Discovery, upon which all European nations based their claims to land in North America.[2]

According to the international law of Europe during the fifteenth century, priority of discovery gave a nation supreme and unlimited right to the discovered territory.[3] Title to lands hitherto unknown to Europeans was based on the union of discovery and possession.[4] This meant that although numerous European nations claimed first discovery, actual sovereignty could only be established by effective colonization. (Since the English, in North America, generally proved themselves the most effective colonizers, succeeding comments will refer largely to the practice of the English.) The rights of the Crown were not merely those of head of state or feudal lord paramount. The King was the immediate owner and lord of the soil and exercised unlimited power in its disposition.[5] Theoretically, no settlement could be made without his consent, and if any settlement took place without his prior approval, then he could force it either to disband or to seek a royal charter to confirm its existence. Once the Crown established sovereignty over an area, it then enlarged its authority to include the right to extinguish any vestige of Indian title.[6]

Under international law, the Indians had only a right of uncivilized occupancy.[7] This meant that the natives had no right to dispose of their title except to the Crown or its proprietary agents. The Indians were consistently held incapable of alienating their lands to private parties.[8] By implication, the Crown took the position that if it cared to recognize any Indian title (to lands occupied by the Indians) at all, such title could be transferred only to the Crown. Any purchase of land made by settlers from the natives without the consent of the Crown was regarded and treated as absolutely void. It was a fundamental principle in the English colonial jurisprudence that all titles to land within the colonies passed to individuals only from the Crown or proprietary authorities.[9] No land title examined in the colonial or early state courts was ever admitted to depend upon any Indian deed of relinquishment.[10,11]

These views were confirmed by the Royal Proclamation of 1763, in which the territory still occupied by the Indians west of the Appalachian Mountains was disposed of without reference to the natives. The Crown’s assumption was that the aboriginal tribes had neither title to the soil nor sovereignty. The Royal Proclamation reserved to the British government the exclusive right to purchase and extinguish the rights of the Indian tribes as occupants of the soil. Furthermore, it forbade European settlement on Indian Territory, until permission was granted by the Crown and until after the Indian right had been extinguished by conveyance to the Crown.[12]

The first European in North America to challenge the principle of the Right of Discovery and to uphold the native rights to the soil was Roger Williams. In 1633 he became an ardent proponent of the idea that King James had no right or power to claim ownership of North American lands occupied and used by the Indians. The King was granting things beyond his power to grant when, for example, he issued royal patents to Plymouth, Massachusetts Bay, and other colonies. From Williams’s point of view these patents were invalid. The English could justly occupy lands in North America only by purchasing those lands from their rightful owners, the Indians. Undoubtedly these claims caused alarm among the royal patriots, for they struck at the very foundations of the colonial governments which King James had authorized. Williams was banished from Massachusetts and left to establish his colony in Rhode Island, where he began by purchasing the land from the Indians.[13]

Williams asserted that the rights of the Indian stood upon the original principles of the law of nature, which meant that the lands they had occupied and used could not be alienated from them without their free consent.[14] Roger Williams pointed out that a modified form of private ownership of land did exist among the Indian tribes and that they did not simply live in a state of nature. They had improved the land by burning the underbrush and had cleared the land where they lived, and their woodlands were no less useful than the King’s parks in England.[16] John Winthrop, one of Williams’s detractors, maintained that the unimproved lands of North America belonged to no one, and that whoever labored on unimproved and unclaimed land thereby made it his own. According to Winthrop, land became private property only through cultivation, manuring, and enclosure. Since by English standards the Indians had not noticeably improved their land or enclosed it, it was not rightfully theirs, but simply lay ownerless in the state of nature. Even though the Indians had not cultivated or enclosed their lands, Williams insisted that the colonists first purchase the right to the land from its original users and occupants, the Indians. Williams demanded that the Indians be dealt with on the principle of equality and maintained that so-called civilized states have no right, however nomadic or savage they (the Indians) might be, to divest the title to the soil from them.[17]

Misunderstanding arising from their differing concepts of property in land was one of the main causes of disputes between the Europeans and the Indians. The Indians did not recognize land appropriation by individual members of the tribe, and even Roger Williams recognized that landownership among the Indians was usually held by the tribe. Nevertheless, among the Indians articles of personal property were owned by the individual.[18] Each Indian tribe was perfectly well acquainted with the limits and bounds of its landholdings, even though these holdings were not enclosed in the normal European fashion.[19] Indian land tenure has been characterized 1) as a right of beneficial use and occupancy, rather than an exclusive ownership, and 2) as a group right rather than an individual one. It was probably difficult for the Indians to think of land as individual, private properly, which could be sold or permanently alienated.[20]

Besides Roger Williams, there were others concerned with respecting Indian rights. In 1626 the West India Company instructed its New Netherlands’s agents to formally acquire title to lands, by purchase from the Indians. As early as 1623, records indicate that the Hollanders had purchased land of the Indians.[21 Thus Manhattan Island was purchased by the Dutch in 1626, for goods valued at 60 guilders.[22] This was a sum probably representing the real value of the land in that day, and the Indians made a good trade. The Dutch probably initiated the practice of purchasing lands from the Indians in order to counter the claims of the other European powers. They had little chance of sustaining themselves under the principle of Right of Discovery. They decided to argue, against the claims of the English, that the Indian tribes or nations were the true owners of the land discovered by the English and that title could be obtained from the natives only by gift or purchase. Interestingly enough, when the Swedes arrived in 1638, they recognized the claims of the Dutch, to lands purchased of the Indians. Likewise, the Dutch formally admitted the validity of Swedish titles, when a deed or transfer from the Indians could be produced.[23] The only English colonists to emulate the Dutch and Swedish practice were the Quakers in Pennsylvania; practically all the other English settlers refused to recognize Swedish or Dutch claims since the Indian title had no standing in English law.

The Quakers were the only group of European settlers to have their hands free from the blood of innocent Indians.[24] They never deliberately schemed for the extermination of the Indians and were nearly always concerned to do full justice to Indian claims.[25] They were an unimaginative, pecuniary people, who thought that justice to the Indian consisted in doing him no harm, paying him for his land, and letting him go.[26]

The curious aspect of William Penn’s approach was that his chief object seems to have been to extinguish Indian claims and to give satisfaction to the natives for their possessory rights, rather than to fix definite and accurate boundaries of the land purchased. The wording of the deeds implies that the intent was to cover all possible claims of those making the grants to Penn. Hence it was of little importance that these deeds overlapped and included areas obtained from other claimants.[27] Thus, practically the whole of Pennsylvania was purchased of the Indians, and some of it several times over.[28] The price of these land purchases seems as nothing now, but it was a fair price in those days in the minds of both parties. It took centuries for the white people to learn the value of land in America. In every instance when Penn dealt with the Indians, so long as the bargain was fairly made, the Indians returned to their wigwams satisfied.[29]

What seems to have impressed the Indians was the fact that Penn insisted on purchase at the first and all subsequent agreements as being an act of justice, to which both parties were to give their assent voluntarily. They also felt that the price was ample to extinguish their claims, and that no advantages were taken by plying them with drink or cheating them with false maps. The treaties were open and honorable contracts, and not characterized by sharpness and chicanery. As the Indians reflected on them at their leisure, they saw nothing to repent of and everything to admire in the conduct of Penn, and they preserved inviolably the terms to which they had solemnly agreed.[30]

Even before Penn arrived in his colony, land was purchased of the Indians, under his instructions, as early as 1682. As a Quaker and quasi-pacifist and as a proprietary of the Crown, Penn had a dual role to fulfill as colonial leader. As in many of the other colonies, to resort to buying the lands of the natives may have been an act of expediency, for it must have been much cheaper and easier to purchase the lands of the Indians than to attempt to take them away by force.[31] Liberty and peace were the two main elements of Penn’s Holy Experiment and could be obtained only if no aggression were made on the rights, real or supposed, of the native inhabitants.[32] Penn’s Quaker conscience inspired him to buy not only the Indian lands, but those of all claimants in order to quiet all possible land disputes. It should be noted, however, that regardless of Penn’s concern for justice, Pennsylvania law prohibited purchase of Indian land by individual Quakers or other settlers. Quieting title was a government monopoly which Penn held for himself.[33]

It has been urged by Penn’s critics that neither he nor any other European colonist could with perfect integrity and honesty purchase the land of the aboriginal natives of America, for several reasons. First, savages can never, for any consideration, enter into contracts obligatory upon them. They stand by the law of nations, when trafficking with the civilized pan of mankind, in the situation of infants, incapable of entering into contracts, especially for the sale of their country. Second, should this be denied, it may then be asserted that no monarch or chief of a nation has the power to transfer by sale the soil of the nation over which he rules. Neither William Penn nor any other European since made a purchase of lands from any Indian nation other than through the agency of their sachems or head men, who certainly could have no more right to sell their country than any European monarch has to sell theirs. Third, should these objections be over-ruled, then it may be safely asked, what could William Penn or at least what did he give which should be considered from any point of view as a consideration or a compensation to those aborigines for their land?[34]

Before dealing with these critical points, let it be said that the Indian land issue ought to be viewed from the standpoint of man’s natural and inalienable rights to life, liberty, and property.[35] This means that, since the Indians were human beings, they had the same rights as Caucasians. This means they had the right to control their own minds and bodies free of coercive interference and to own the land on which they and their ancestors had lived since time immemorial. Thus, when “discovered” by the Europeans, parts of the North American continent were not ownerless. The American Indians, by virtue of being first users and occupiers of parts of the continent, were its rightful owners.[36] Since legitimate property owners have an unrestricted right to make arrangements for the disposition of their property, this effectively disposes of the first argument that savages cannot enter into obligatory contracts.

Since the Indians did not hold the land as individuals, but as collective tribal entities, it is difficult to determine whether or not land allocations (under the tribal regime) were more just than the English land grab which took place under the guise of discovery.[37] However, it is plain that private collective ownership is perfectly valid and moral, as long as it is voluntary and there is no violation of individual rights.[38] Private collective ownership must originate in the ability of the individual to own property, which he then cooperatively pools with the property of others. However in the case of the Indians, it has never been asserted that tribal title rested on the agglomeration of individual titles. The actual settler–the first transformer of the land–whether white or Indian–had to fight his way past a nest of arbitrary land claims by others.[39] Were the tribes, in effect, voluntary associations of individuals who consented to their collective ownership of the land? The fact that no form of tribute or taxes was ever collected among the Indian tribes inhabiting what is now the United States lends some credence to the view that the tribes were voluntary organizations.[40]

As voluntary associations, the tribes could, and in fact did, historically, sell their rights to the soil by allowing their chiefs to represent tribal interests. These chiefs were authorized to make and execute deeds on behalf of the tribe, to receive for the tribe the consideration for the deeds, and to divide such consideration among the individuals of the tribe. The authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe and by their receipt of their respective share of the price.[41] Thus could the Indian tribes deal with the Europeans for the sale of their lands, and granted that the chiefs had this authority, it must be admitted that they were capable of determining what in their opinion would be ample compensation for their lands.

With these preliminary concerns out of the way, it must now be determined whether or not the bulk of Indian claimed land was actually used and occupied, settled and transformed by the tribes claiming them. If it be admitted that the tribal organizations were voluntary and that Indian landownership was just, then it is plain that European intervention into the allocation of property was a usurpation and a crime against the rightful Indian owners. If the Europeans settling in North America had operated in a free-market or even semi-free-market framework, then the British government would have refrained from claiming sovereignty over the unused domains of America. It would have denounced the principle of the Right of Discovery, and recognized that true ownership could only be established under the principle of “first ownership by the first user” (whether white or Indian).[42]

What exactly does first occupation and use mean? What are the criteria by which the principle of first ownership by the first user is to be interpreted? The crux of the dispute over whether Indian claimed lands were truly owned by the Indians or actually ownerless stems from the failure to distinguish between cultivation and other forms of use. If cultivation and enclosure are deemed to be the hallmarks of establishing occupancy and use, then that large portion of the Indian claimed land which was never “homesteaded” must be viewed as actually ownerless (and thus open to settlement by the actual first user).

Claiming that the American Indians, by virtue of being the first users and occupiers of the continent, were its rightful owners, Rosalie Nichols maintains that “use” is decided upon according to the condition and natural resources of the land, the level and particular type of technology of the occupants, and the desires of the owner.[43] Undoubtedly, the Indians rightfully owned the land that they cultivated and upon which they erected their wigwams and shelters. The main question to settle is whether they rightfully owned the land upon which they regularly or sporadically hunted.

Lysander Spooner in the mid-nineteenth century asserted that those lands which the Indians merely roamed over in search of game, could not be said to have been rightfully owned by them.[44] Rightful ownership of unoccupied lands is established by either actually living upon the land, or improving it, or bestowing other useful labor upon it. “Nothing short of this actual possession can give any one a rightful ownership of wilderness lands, or justify him in withholding it from those who wish to occupy it.” He based his assertions on the principle that occupation and use meant more than standing upon a portion of the North American continent and claiming possession of it. To establish ownership a person must bestow some valuable labor upon the land. In these cases he holds the land in order to hold the labor which he had put into it.[45] Similarly, Rothbard has written that the bulk of Indian claimed land was not settled and transformed by the Indians, and that the new European settlers were justified in ignoring the Indians’ vague abstract claims because they knew they were the first to actually cultivate and enclose the lands upon which they settled.[46]

The fact that the Indians and Europeans did not share a common technology seems to be of no import in establishing legitimate properly titles. To live, all people (regardless of their technology) must occupy certain places on the land, and whoever first establishes a homestead becomes its rightful owner. Unless the Indians bestowed some form of valuable labor over the wilderness areas they hunted, their claims of ownership were unsubstantiated. At most, they could claim the wild animals they killed and the trails that they cleared. The fact that the tribes each had their own hunting areas does not disprove this and indicates that they only wished to live in peace with one another. If and where the Indians attempted to bound off their hunting lands, so that no one else could enter and game could not escape, and where they made efforts to help propagate game, then their ownership would be valid.

Thus game preserves or wilderness areas could exist in a free society. It is also important to understand that land once cultivated, even if allowed to go wild, does not become ownerless. Once a piece of land has passed into just ownership, the owner cannot be divested of title without his consent. Thus even though a piece of land is not currently being farmed, but is perhaps being used for cycle racing or as a rifle range, it is still owned, so long as sometime in the past a rightful possession took place. The present owner is the rightful owner so long as he can trace his title through a historical chain of voluntary transfers from the first occupier and user.[47] The fact that certain forest areas, desert lands, and open ranges, even at this late date (four hundred years after the European discovery of the continent) have never been homesteaded or cultivated means that they are still rightfully ownerless and will probably remain so because of their uneconomic value.[48]

Thus granting that some Indian claims were valid and others invalid, what were the Europeans to do when they discovered America? Even though there were probably few areas which the Indians did not claim, were the Europeans under the necessity of abandoning the country and relinquishing their own pompous claims established under the principle of Right of Discovery?[49] All unjust claims–by the Indians and the European powers–should have been ignored. “The English who colonized this country had no right to drive the Indians from their homes; but on the other hand, there being here an abundance of unoccupied land, the colonists had a right to come and settle on it, and the Indians had no right to prevent them from doing so.[50] I believe that the history of Quaker settlement proves that this policy was possible and furthermore believe that until the latter stages of settlement, the Indians were not as concerned to establish their title to hunting lands as we might think.

If Penn had not been a representative of the Crown, but only a private Quaker or the recognized leader of a corporate body of Friends, his conduct toward the Indians would serve as an example of how a libertarian colonization process could have worked. The fact remains that the Indian tribes he dealt with voluntarily relinquished their claims to him (and in this respect, his position as a Crown representative was unimportant). The Europeans did not need to abandon the continent upon discovering that parts of it were inhabited. Individual settlers or groups of settlers could have quieted Indian claims and extinguished Indian titles much as Penn did. Thus it is conceptually possible that the bulk of Indian landholdings could have passed legitimately into non-Indian control. This is not to say that all tribes would have alienated all their lands, but at least historically some Indians did willingly relinquish their land.[51] Thus the historical picture clearly demonstrates that libertarians and Indians could have lived peacefully together under a regime of proprietary justice.

NOTES

1. Rosalie Nichols, “Right-Wing Rationale of Non-Recognition of Indian Rights,” The Indian Historian 3 (Spring 1970): 27.
2. Jonathan Hughes, The Governmental Habit (New York. Basic Books, 1978), p. 233.
3. James E. Ernst, The Political Thought of Roger Williams (Seattle: University of Washington Press, 1929), p. 95.
4. Melville Egleston, The Land System of the New England Colonies, Johns Hopkins University Studies in Historical and Political Science, 4th ser., vols. 11-12 (Baltimore, 1886), p. 4.
5. Ibid.
6. Ernst, Political Thought of Roger Williams, p. 95.
7. Alpheus Snow, The Question of Aborigines in the Law and Practice of Nations (New York: G P. Putnam’s Sons, 1921), p. 25.
8. Alfred N. Chandler, Land Title Origins (New York: Robert Schalkenbach Foundation, 1945), p. 36.
9. Ibid.
10. Snow, The Question of Aborigines, p. 121.
11. Several interesting questions are raised by the case of Johnson and Granham’s Lessee vs. William McIntosh (8 Wheaton 543) which was decided by the U. S. Supreme Court in 1823. This was an action by Johnson and others to eject McIntosh from lands granted to them by the Piankeshaw Indians during the 1770’s. The land claimed by Johnson was part of the Indian territory claimed by the State of Virginia and then ceded to the federal government in 1783. Although the plaintiffs had petitioned the U. S. Congress numerous times to recognize their conveyance from the Piankeshaw, the federal government granted McIntosh title to the identical piece of land in 1818. In concluding that the Indian deed was of no value and that the grant from the United States government was paramount, Chief Justice Marshall pointed out that: “The person who purchases land from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian authorizing him to hold a particular tract in severalty [that is, to hold the land as a separate individual, apart from the tribe]. As such a grant could not separate an Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, we can perceive no legal principle which will authorize a court to say that different consequences are attached to this purchase because it was made by a stranger. By the treaties concluded between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy had been ceded to the United States without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country without any reservation of this land affords a fair presumption that they considered it as of no validity,” (8 Wheaton 593-94). Query I) Why would an Indian grant to a member of the tribe to hold the land in severalty be incapable of separating the Indian from his tribe? Query 2) By what “unquestionable right” did the Indian tribes have the right to annul grants made to outside parties (whether such parties be American citizens or not)? Would the fact that a grant was made to an enemy citizen prior to the commencement of war entitle the Indians to cancel their conveyance after the war had begun? Query 3) Would Marshall have decided the case differently had the Indians actually made a reservation in their treaty with the United States, whereby they recognized the existence of a prior grant of land to Johnson? The presumption that the Indians annulled their former conveyance would have been overcome. Then to rebut the presumption thus created in favor of Johnson’s title, Marshall would have had to revert to the principle of the Right of Discovery .
12. Snow, The Question of Aborigines, p. 19.
13. William C. Macleod, The American Indian Frontier (New York: Alfred A. Knopf, 1928), p. 199.
14. Ernst, Political Thought of Roger Williams, p. 96.
15. Macleod, American Indian Frontier, p. 19. There is some discrepancy between Ernst and Macleod over Roger Williams’s recognition of landownership by the Indians. For the conflicting discussion see ibid., pp. 18-19, and Ernst, Political Thought of Roger Williams, p. 104.
16. William B. Scott, In Pursuit of Happiness: American Conceptions of Property from the Seventeenth Century to the Twentieth Century (Bloomington: Indiana University Press, 1977), p. 16.
17. Ernst, Political Thought of Roger Williams, p. 105.
18. Ibid., p. 102.
19. Chandler, Land Title Origins, p. 30.
20. John Provinse, “Tenure Problems of the American Indians,” in Ken H. Parsons, ed., Land Tenure (Madison: University of Wisconsin Press, 1956), p. 421.
21. Macleod. American Indian Frontier, p. 194.
22. Marshall Harris, Origin of the Land Tenure System in the United States (Ames: Iowa State College Press, 1953), p. 165. Also see Macleod, American Indian Frontier, p. 194.
23. Ibid., pp. 195-96. Macleod also footnotes the interesting and similar practice of the Dutch East India Company at the Cape in South Africa: “forced by virtue of desire to avoid an immediate issue of arms with the Hottentot Africans,” the Dutch East India Company during the 1660’s. were “holding formal treaties with the native tribes, giving them money or goods in exchange for land and privileges, and even paying a stated tax to the local tribe for each ship entering the harbour at the Cape” (ibid., p. 196). The Dutch claimed that outright conquest and subjugation of the natives would entitle the invaders to the land of the conquered, but apparently the Dutch never adopted this unlibertarian practice.
24. Ibid.. p. 376.
25. This was true while William Penn lived (until 1748). The story of his son’s fraudulent interpretation of Indian deeds is related in William J. Buck, History of the Indian Walk (Philadelphia: Edwin S. Stuart, 1886).
26. Macleod, American Indian Frontier, p. 376.
27. Cyrus Thomas, “Introduction,” in Charles C. Royce, comp., Indian Land Cessions in the United Stares, 18th Annual Report of the Bureau of American Ethnology to the Secretary of the Smithsonian Institute (Washington: Government Printing Office, 1899), p. 599.
28. Isaac Sharpless, A History of Quaker Government in Pennsylvania (Philadelphia: T. S. Leach & Company, 1900), 1:162.
29. Rayner W. Kelsey, Friends and the Indians (Philadelphia: The Associated Executive Committee of Friends on Indian Affairs, 1917), pp. 45-46.
30. Sharpless, A History of Quaker Government. pp. 157-58.
31. Buck, History of the Indian Walk, pp. 31-32.
32. Rufus M. Jones, The Quakers in the American Colonies (London: Macmillan and Co., 1911), p.470.
33. Royce, Indian Land Cessions, p. 597.
34. John L. Bozman, The History of Maryland (Baltimore: James Lucas & K. E. Deaver, 1837), pp. 569-70.
35. Nichols, “Right-Wing Rationale,” p. 26.
36. Rosalie Nichols, “An Open Letter to an American Author,” The Indian Historian 1 (Spring 1968): 17. Also see Nichols, “Right-Wing Rationale,” pp. 29-30. Ms. Nichols takes the position that the various Indian tribes owned every part of the continent, not just parts of it.
37. Murray N. Rothbard, Conceived in Liberty (New Rochelle, N. Y.: Arlington House, 1975), 1:187.
38. Nichols, “Right-Wing Rationale,” p. 32.
39. Rothbard, Conceived in Liberty, 1:187.
40. Nichols, “Right-Wing Rationale,” p. 33. Referring to the Comanches, Ms. Nichols remarks, “There was no Internal Revenue Service to come after him [the Indian hunter]” (ibid., p. 32).
41. Johnson vs. McIntosh, 8 Wheaton 550.
42. Rothbard, Conceived in Liberty, 1:49.
43. Nichols, “Right-Wing Rationale,” pp. 29, 31.
44. Lysander Spooner, Address of the Free Constitutionalists to the People of the U. S. (Boston: Thayer and Eldridge, 1860), p. 33.
45. Lysander Spooner, The Law of Intellectual Property (Boston: Bela Marsh, 1855), pp. 21-22.
46. Rothbard, Conceived in Liberty, 2:54.
47. Thus comments Murray N. Rothbard, Man, Economy, and State (Princeton: D. Van Nostrand, 1962), 1:147-48: “There is no requirement, however, that land continue to be used in order for it to continue to be a man’s property. Suppose that Jones uses some new land, then finds it unprofitable, and lets it fall into disuse. Or suppose that he clears new land and therefore obtains title to it, but then finds it is no longer useful in production and allows it to remain idle. In a free society, would he lose title? No, for once his labor is mixed with the natural resources, it remains his owned land. His labor has been irretrievably mixed with the land, and the land is therefore his or his assigns’ in perpetuity.” Also see Carl Watner, Towards a Proprietary Theory of Justice (Baltimore: by the author, 1976), p. 8.
48. Nichols, “Right-Wing Rationale,” p. 30. Neither does the federal government rightfully own such land as has never been homesteaded and which falls within the so-called public domain.
49. Royce, Indian Land Cessions, p. 538, and Johnson vs. McIntosh, 8 Wheaton 590.
50. Benjamin Tucker, Liberty, Whole No.360 (March 1899), p. 1.
51. Even Ms. Nichols, an advocate of Indian rights to all the land, implies that some holdings by Europeans of Indian land were justly acquired. Otherwise, how could she write: “Fraud also was used by European invaders to obtain land that they could not obtain by voluntary consent” (Nichols, “Right-Wing Rationale,” p. 26).

by Carl Watner
1986

The twentieth century libertarian movement has experienced an ongoing debate between the minarchists, the advocates of “limited” government, and the anarchists, who argue that the ultimate implications of libertarian principles are “no” government. Few of the parties to these arguments realize that they are participating in a discussion whose roots can be traced back well over three centuries. Nor do they realize how the argument has shifted over time. In the beginning, those who defended existing governments argued for state absolutism and the divine right of kings. Their opponents argued that no persons could be bound in a political sense except by their own consent. The argument that the “ruled” had individual rights meant that the monarch ought not to violate those rights. In response, the divine-rightists or patriarchialists, as they became known, urged that such a “limited” government or “mixed monarchy,” as they called it, was a contradiction in terms. These critics offered “no”-government-anarchy as the reductio ad absurdum of individual rights and government by consent. As Oliver Cromwell so aptly put it, at the time of the Putney Debates in 1647: “The consequences of this rule tends to anarchy, must end in anarchy.”[l] In the English-speaking part of the world, the “limited” government versus anarchy controversy has evolved in at least three stages. The first stage was the critique by such people as Sir Robert Filmer[a] (and later the opponents of the Levellers, as we have noted above) and others that government by consent led straight to anarchy. In this phase of the discussion, there were as yet no defenders of anarchy–only defenders of limited government and their opponents, the patriarchalists. The second stage of the controversy witnessed both the moral and practical triumph of the libertarian ideal (especially after the success of the Glorious Revolution of 1688 and the American Revolution in 1783) that each person is unique and possesses proprietorial rights over him- or herself. Only the most dyed-in-the wool statist could continue to argue after those victories that no one should have any say in the political matters affecting him- or herself. Whereas the absolutists had argued that the people had no rights, eventually it became commonplace to recognize that they did have rights, even if their “life, liberty, and property” could be entrenched upon in certain situations. Although as late as the 1780s the ideal of government by consent seems to have won the day, it would still be difficult to find any proponents of the social ideal of anarchy.

Finally, after nearly a century and a half of discourse, there arose a group of radical thinkers who were brave enough actually to brandish the reductio ad absurdum of anarchy. This constituted the third phase of the limited- versus no- government controversy. People like William Godwin were prepared to accept the logical implications of their beginning premises, namely, that no outside coercive authority had any jurisdiction over the nonconsenting individual and that each person should be left totally free of coercive molestation. Godwin and the individualist-anarchist movement he spawned realized that “to contend that consent is the moral justification for government is to lay the groundwork for anarchy.”[2] Subsequent thinkers explained the various moral and practical ramifications of anarchy, but the point had finally been reached where anarchism was set against any and all forms of government. Unknowingly or not, latter-day anarchists repeated many of the arguments originated by Sir Robert Filmer to explain why no government could ever be “limited.” Many political theorists were caught on the horns of this dilemma. On the one hand, they believed in government by consent and in individual rights, but on the other, they were not prepared to accept the anarchist implications raised by either Filmer or Godwin. In order to try to salvage their own position, thinkers like John Locke developed and relied upon the doctrine of “tacit” consent to prove that existing governments did in fact rest on some son of consent. “Tacit” consent meant that one accepted the government one lived under simply because one continued to live in the geographic area over which it maintained jurisdiction. Owning property according to governmental law and using government services of one sort or another indicated one’s support. “To trace the history of the tacit consent doctrine is to trace” the “tortuous route whereby political theorists . . . attempted to void the anarchistic implications” of their consent doctrines.[3]

The basic issues in the anarchy versus limited-government debate are the same now as they were over 300 years ago. The only difference is that radical libertarianism bas advanced to the point where the reductio argument is no longer that but is a position it willingly accepts and defends. If consent is to mean anything, it must mean the explicit voluntary consent of each and every person over whom government exercises control. Since no government can document that it rests on individual consent and since payment of taxes is not voluntary, no government can demonstrate that it has the consent of the governed (otherwise the imposition of physical force, and the threat of physical force, to collect taxes would not be necessary). Three hundred years ago this was a novel argument used by the defenders of kings to discredit their limited-government opponents, but it is now a perfectly valid argument used by the no-government defenders of anarchy. This, then, is one of the purposes of this paper: to show how the early critics of consent theory argued that such ideas inevitably led to anarchism. Other purposes of this paper are to (1) describe the historical development of consent theory in general, and (2) demonstrate how this theory has become part and parcel of the radical libertarian tradition.

Probably the earliest glimmerings of consent theory in English history are found in A Shorte Treatise of Politike Power, written by John Ponet in 1556. Ponet (1516?-1556) was a Cambridge scholar who eventually became an English bishop and then, with the accession of Queen Mary to the throne in 1553, went into exile. His treatise was concerned with “the true obedience which subjects owe to their kings and other civil governors” and propounded a series of political questions: “whether kings, princes, and other governors have an absolute power and authority over their subjects,” “whether kings, princes and other politic governors be subject to God’s laws, and the positive laws of their countries,” “in and what things, and how far subjects are bound to obey their princes and governors,” “whether all the subjects’ goods be the kaisers and kings own, and that they may lawfully take as their own,” and finally “whether it be lawful to depose an evil governor, and kill a tyrant.”[4]

Ponet’s answers, although couched in a radical Protestant religious posture, nonetheless form the basis for a nonsecular, natural rights approach. Quentin Skinner, a twentieth century historian of this era, refers to their “anarchic implications”: “With citations from both the civil and canon laws, Ponet argues that the crimes of a ruler who exceeds the bounds of his office are in fact no different–and ought to be treated no differently–from the same crimes when committed by ordinary citizens. ‘If a prince rob and spoil his subjects, it is theft, and as a theft ought to be punished.’ And ‘if he kill and murder them contrary or without the laws of his country, it is murder, and as a murderer he ought to be punished.’ ‘And those that be judges in commonwealths, ought (upon complaint) to summon and cite them to answer to their crimes, and so to proceed, as they do with others.’”[5]

Ponet’s biographer, Winthrop S. Hudson, notes that his “writer becomes somewhat emotional as be thinks of those ‘evil princes’ who ‘claim all their subjects goods for their own.’ . . . To them he cites the example of Naboth refusing to sell his vineyard to the king, affirming that he rightly ‘refused to sell it, as he might do, for by God’s law he had a property therein, from which without his will and consent, he could not be forced to depart.'”[6]

The idea of consent played a prominent part in Ponet’s thinking. His view of natural law led to a restriction on the power of kings and governors, who derived their authority from the people. “Neither pope, Emperor, nor king may do any thing to the ‘hurt’ of his people without their consent,” nor may any king or prince break or dispense with the positive laws “but with the consent of the people.’”[7] The institution of government and its magisterial offices are in the nature of a trust, which ultimately rests upon the consent of the governed.

Is any man so unreasonable to deny, that the whole may do as much as they
have permitted one member to do? Or those that have appointed an office
upon trust, have not authority upon just occasion (as the abuse of it)
to take away that they gave? All laws do agree that men may revoke their
proxies and letters of Attorney, when it pleaseth them: much more when
they see their proctors and anomies abuse it.[8]

It was not understood until the heyday of Lysander Spooner some 300 years later that this view of civil authority as “merely a delegation of power which might be revoked when it was abused” might be used to destroy the very concept of political representation.[9] It was certainly used by Ponet and other sixteenth century thinkers to justify tyrannicide.[10] “To affirm, as Ponet does, that a private man may kill a magistrate is, to be sure, nothing less than the rankest anarchy.”[11] Ponet made the people (and by the people, Ponet included the poor) custodians of natural and divine law with the power to enforce it, by means of establishing that form of government they thought most conducive to their interests. When their governors and kings violated their trust, then they forfeited their power, whether they relinquished their positions voluntarily or whether they had to be removed forcefully.

Although Ponet was not an oft-quoted theorist during the century following his death, his Shorte Treatise was republished twice during the Puritan era. “By virtue of these two editions of 1639 and 1642, it is evident that Ponet was still a living source of ideas in the seventeenth century.”[12] His authorship of the tract was not well known, and in fact it was not until after the American Revolution that Ponet actually received the recognition due him. “By that time a charge of rebellion made little difference, and so John Adam felt no hesitation in quoting from the 1556 edition and declaring that it “contains all the essentials of liberty which were afterwards dilated on by Sidney and Locke.”[13]

Although there is no evidence that Ponet used the word “anarchy” or any of its derivatives, there is proof that the term was used to identify the “absence of government” and “a state of lawlessness” or “political disorder” by other sixteenth and seventeenth century writers. The term itself may have been derived from the medieval Latin anarchia and the French anarchie, which were cited by Randle Cotgrave’s A Dictionary of the French and English Tongues, published in 1611. The earliest entry for the use of the word “anarchy” in The Oxford English Dictionary is from the 1552 edition of Richard Taverner’s Proverbs or Adages with New Additions, Gathered out of the Chiliades of Erasmus, originally published in 1539: “This unlawful liberty or licence of the multitude is called an Anarchy.”[14] By the 1640s in England it was common to find the word “anarchy” being used quite seriously. In a tract entitled The Resolving of Conscience (1642), attacking the social contract theory of government, Henry Ferne wrote that if the doctrine of the original power of the people “must be a Fundamentall” then “it is such a one as upon it this government cannot be built, but confusion and anarchy may be readily raised.”[15] Clement Walker in his Anarchia Anglicana, or The History of Independency, The Second Part (1649) referred to those “who under colour of merchandise vent antimonarchical and anarchical tenets.”[16]

The term “anarchy” was apparently not confined to the political sphere for there was an early realization of the connection between religious freedom and liberty of conscience and political freedom. “Preaching before the House of Commons on 26th May 1647, Thomas Case denounced liberty of conscience as opening the floodgates of anarchy.” In his sermon, “Spiritual Whoredom Discovered,” Case said that if you publish liberty of conscience as one of the people’s rights then

see . . . how long your civil peace will secure you when religion is
destroyed. . . . For no doubt if this once be granted them . . . they
may in good time come to know also–there be them that are instructing
them even in these principles, too–that it is their birthright to be
freed from the power of parliaments and . . . kings. . . . Liberty of
conscience (falsely so called) may in time improve itself into liberty
of estates and . . . houses and . . . wives, and in a word liberty of
perdition of souls and bodies.”[17]

This “anarchy of religious freedom” was noted by other contemporary writers. Henry Parker in 1644 in his Liberty of Conscience: Or the Sole Means to Obtain Peace and Truth noted that liberty for men to teach what they will, will result in many false doctrines and teachers. “Yet it were better that many false doctrines were published . . . then that one sound truth should be forcibly smothered or willfully concealed.” This “complying with weak consciences or the tolerating of several opinions”, as Parker termed it, was not any “sort of Libertinism,” for it was the only means of arriving at truth.[18]

This was one of the main themes of the English radicals of the mid-seventeenth Century: that liberty of conscience was one of the natural rights of man. There was nothing that the Levellers “held with more tenacity than liberty of conscience.”[19] Case was right in pointing out the anarchic implications of this doctrine, for the supporters of liberty of conscience realized that it was impossible to assert one’s right of private judgment without upholding the same right for everyone else. In the religious sphere this meant that guaranteeing the liberty of the regenerate necessitated guaranteeing the liberty of all. This was one of the main contributions of Puritanism to the doctrine of general liberty.[20] These radicals also observed a direct connection between their churches and the civil state. Their entire doctrine of Christian liberty insisted upon the importance of consent as opposed to conformity and called into question the end or reason of their social organizations. Richard Overton, for example, in An Arrow Against All Tyrants , written in 1646, noted:

For by natural birth all men are equal, . . . born to like propriety,
liberty and freedom, and as we were delivered of God by the hand of
nature into this world, every one with a natural innate freedom and
propriety, . . . even so we are to live, every one equally . . . to
enjoy his birthright and privilege, even all whereof God by nature
hath made him free. . . . Every man by nature being a king, priest,
prophet, in his own natural circuit and compass, whereof no second
may partake but by deputation, commission, and free consent from him
whose right and freedom it is.[21]

During the late sixteenth and seventeenth centuries, many radical religious sects employed the device of a church covenant. This was sometimes an implicit, but usually an explicit congregational agreement by which those voluntarily enrolling in a particular church pledged themselves to the faith. Familiarity with the idea of church covenant and with the principles it embodied “helped establish in the civil sphere the doctrine of the social contract and government by consent.”[22] The church in this view was a voluntary association of equals and undoubtedly furnished a model for the civil state. The church preserved the free form of community and enabled (or at least aided) it to influence by analogy the theory of the state. The Levellers brought to their conception of the state, their views about church organization. “If the Leveller emphasizes the contract on which the authority of just government depends and insists on the principle of consent, he has had in his church, experiences of a community organized on these very principles.”[23]

It was only a small step for the Levellers to conclude that if the voluntary church was the only true church, then the only true political organization was the voluntary state. They moved quite close to a voluntaryist conception of the church, and a Leveller petition of March 1647 went so far as to urge “that tithes and all other enforced maintainences may be for ever abolished, and nothing in place thereof imposed, but that ministers may be paid only by those who voluntarily choose them, and contract with them for their labours.”[24] By substituting “taxes” for “tithes” and “government officials” for “ministers,” we can see how close these early religious dissenters were to espousing a truly voluntary state. Latter-day thinkers were left to question: If men’s spiritual health could be left to the free reign of voluntary forces, why could not men’s physical well-being be left to the free market? Clearly these early advocates of church-state segregation were in the vanguard of the libertarian tradition because they took one of the first steps necessary to separate the state from the rest of society. They did this by declaring themselves four-square for liberty of conscience and religious freedom, and government by consent.[25]

The Levellers, by the principles of their religious thinking, were “thrown back wholly on the law of nature in the civil sphere.”[26] They admitted no sovereignty anywhere except in the individual and “seriously accepted the possibility of any man refusing obedience to commands imcompatible with his ideas of reason or justice. This may appear anarchic, but to them it was the ultimate guarantee of liberty.”[27] The Leveller leaders, such as John Lilburne and Richard Overton, saw the English nation as having been reduced to the original law of nature as a result of the tyranny of Charles I and the usurpations of Oliver Cromwell. They proposed that a new political settlement be made in which all Englishmen would give their consent to the Agreement of the People. The Agreement was a written document, the forerunner of written “constitutions,” which was to be superior to Parliament. The Levellers hoped that it would be unanimously accepted by members of the army and then be signed by the people at large at the first general election. It plainly illustrates the Levellers’ premise that society could be constituted on an entirely voluntary basis.[28]

The Putney Debates, which took place October 28–November 1,1647, placed the Levellers against Cromwell, Ireton (his son-in-law and chief spokesman), and the other army grandees. The debates illustrate the radical nature of Leveller thought and their reliance on both consent and state-of-nature theory. Ireton declared that the Levellers could ground their demand for manhood suffrage only on some plea of natural rights as opposed to the historic rights held forth by the supporters of the fundamental English state. They did not deny the fact. When Ireton claimed that the Levellers would destroy all property, they confidently appealed to the law of nature to demonstrate that the right to property is guaranteed by the law of nature, and not, as Ireton maintained, merely by positive government laws. Clarke, one of the Leveller debaters, argued that the law of nature is the basis of all constitutions,

yet really properties are the foundation of constitutions, and not
constitutions of property. For if so be there were no constitutions,
yet the Law of Nature does give a principle for every man to have a
property of what he has, or may have, which is not another man’s.
This natural right to property is the ground of ‘meum’ and ‘tuum.’[29]

Furthermore it is the law of nature that teaches the individual his rights and attendant duties: the right and duty of self-preservation, the natural limits of obedience, and the right and duty of resistance to tyrannical rulers. It teaches him what are the ends of government; and it inculcates the basic principles of social life–the principles of natural justice and equity that dictate the political equality of all men within the state and that are also based upon the biblical maxim “to do unto others as you would have them do unto you.”[30]

The reliance of the Leveller debaters on a theory of government by consent is quite explicit at some places. In a classic and oft-cited statement Rainborough affirmed his belief that “the poorest he that is in England hath a life to live, as the greatest he; and therefore truly, sir, I think it’s clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he hath not had a voice to put himself under.”[31] John Wildman, another Leveller leader, plainly responded to Ireton:

I conceive that’s the undeniable maxim of government: that all government
is in the free consent of the people. If so, then upon that account there
is no person that is under a just government, or hath justly his own,
unless he has by his own free consent be put under that government.”[32]

There is a very striking example–found in a letter attributed to Wildman, which was issued at the time of the Putney Debates–of the invective used by the opponents of the Levellers. In “A Call to All the Soldiers of the Army by the Free People of England” (October 29, 1647), Wildman warned the soldiers not to “take heed of the crafty politicians and subtle Machiavellians.” If the soldiers did attend the meetings of the General Council of the army,

be ye not frighted by the word ‘anarchy’, unto a love of ‘monarchy’,
which is but the gilded name for ‘tyranny’; for anarchy had never been
so much as once mentioned amongst you had it not been for that wicked end.
‘Tis an old threadbare trick of the profane Court and doth amongst
discreet men show plainly who is for the Court and against the liberties
of the people, who, whensoever they positively insist for their just
freedoms, are immediately flapped in the mouths with these most malignant
reproaches:

Oh, ye are for anarchy. Ye are against all governments. Ye are sectaries,
seditious persons, troublers both of church and state, and so not worthy
to live in a commonwealth. There shall be a speedy course taken both
against you and such as you.”[33]

This is obvious proof that “anarchy” was a term of aspersion, even in the mid-seventeenth century. What is also interesting to note is that by that time the term had found itself in common usage in the political realm. The circumstances of the day (the Ship Money Controversy of 1634-1638 and the political turmoil and revolution of the early 1640s) dictated that at least one political theorist would realize that the theory of proprietary justice that the Levellers and other political Protestants were espousing would lead one to anarchism. Their fundamental position, insisting that property was a natural right of the individual and that each person was a self-owner, led directly to government by consent, civil and religious liberty, and ultimately to an incipient son of individualist anarchism. Sir Robert Filmer, in his tract Patriarcha, composed sometime between 1635 and 1642, was the first to note this anarchist tendency in this radical thought.

Despite the fact that Filmer (1588-1653) is perhaps best known as the royalist against whom Locke directed his Two Treatises, his treatment of consent theory has had a great deal to do with its development in English political thought.[34] He possessed an acute, critical mind and his chief biographer, Peter Laslett, has attributed “the destructive cast of his thought” to “his capacity for seeing straight through the arguments of other.”[35] His was the strongest case ever made in his own century against consent theory, and when his collected political works were published in 1680, “three of the ablest minds on the Whig side had set to work to refute patriarchalism.”[36] These were James Tyrell, Algernon Sidney, and John Locke, who were all as much concerned with his defense of royal absolutism as they were with his critique of government by consent. It was Filmer’s primary contention that “stable governments could not be based on consent” because they would always he in danger of having that consent withdrawn.[37] “Filmer’s critique included the recognition that free submission to government logically entailed the right of withdrawal through the same voluntary actions.”[38] Therefore, Filmer saw consent theory as an open invitation leading to constant anarchy.

Filmer left no integrated corpus of thought, and many of his ideas are originally set forth in his Patriarcha and then repeated in his later tracts. However, his most mature and explicit criticism of the anarchist implications of consent theory are found in his treatise, The Anarchy of a Limited or Mired Monarchy (1648), which was written as a rebuttal to Philip Hunton’s 1643 work, A Treatise of Monarchy.[39] Filmer’s main charge against Hunton was “that instead of a treatise of monarchy, he hath brought forth a treatise of anarchy.”[40]

In Patriarcha and in The Anarchy , Filmer argues that “by nature all mankind in the world makes but one people” who are all “born alike to an equal freedom from subjection.”[41] Since there are no natural political divisions in the world, Filmer concludes that “every man is at liberty to be of what kingdom he please.” Therefore,

every petty company hath a right to make a kingdom by itself; and not
only every city, but every village, and every family, nay, and ever
particular man, a liberty to choose himself to be his own King if he
please; and he were a madman that being by nature free, would choose
any man but himself to be his own governor. Thus to avoid the having
but of one King of the whole world, we shall run into a liberty of
having as many Kings as there be men in the world, which upon the matter,
is to have no King at all, but to leave all men to their natural liberty. . . .[42]

Of course Filmer’s point is that the right to secede from political society leads to anarchy and makes coercive political government an impossibility.[43] Filmer even went so far as to grant the seeming impossibility of all individuals having at one time agreed to their government. Even if this were so, Filmer demanded to know why this promise to abide by government could not be broken. Was a man prevented from withdrawing from a government once he had consented to it? “Who can say that such a man doth more than by right he may do?”[44] As Laslett observes, the right of any independent group of people “to set up their own political society without reference to the rest of mankind” inevitably implies a “universal, world-wide anarchy.”[45] If it ever be imagined, as the Levellers thought, that each person was a self-owner, free, independent, and equal with all other human beings, then it would prove an impossibility to introduce any kind of legitimate government into the world, at least without unanimous consent of all those affected.[46]

Nonetheless, Filmer saw the world divided into numerous commonwealths. The defenders of these countries argued that they were legitimated by majority rule and tacit consent. But Filmer questioned if it was ever possible for the members of the entire world to assemble at one time and consent to its political subdivision. Notwithstanding this being an impossibility, Filmer further argued that majority rule could bind no one and that a majority of the earth’s inhabitants (or even the majority of one country’s citizens) could not justify political rule. “No one man, nor a multitude, can give away the natural right of another. . . . The acts of multitudes not entire are not binding to all, but only to such as consent unto them.”[47]

Thus, in a very Spooneresque fashion, Filmer called into question the validity of majority rule and representative government. He said that “it cannot be showed or proved that all those that have been absent from popular elections did ever give their voices to some of their fellows.”[48] Therefore, those who do not participate in an election cannot legitimately be bound by its outcome. Nor could it be countered that the silence of those in opposition or the silence of those who did not vote could be construed as an acceptance of the election. The “tacit assent” of the whole commonwealth to every government is a plain political fact. Yet from that we cannot conclude “that every Prince that come to a crown, either by succession, conquest or usurpation, may be said to be” acceptable to the people.[49] The tacit consent doctrine argues too much. “To pretend that a major part, or the silent consent of any part, may be interpreted to bind the whole people, is both unreasonable and unnatural.”[50]

The supporters of consent theory argued that “the people” must consent to their government. This led such radicals as the Levellers to argue for universal manhood suffrage. Yet, as Filmer pointed out, what of women and children? Were they not “the people,” too?[51] Furthermore, Filmer was confounded by the question of how one generation of “the people” could bind future generations. “Mankind is like the sea, ever ebbing or flowing, every minute one is born another dies; those that are the people this minute, are not the people the next minute.”[52] If one person might be excluded, then the same reason that excludes that person might exclude many hundreds or thousands. Filmer, pushing consent theory to what he saw as a reductio posited that

if it be admitted, that the people are or ever were free by nature, and not
to be governed, but by their own consent, it is most unjust to exclude any
one man from his right in government; . . . for the whole people is a thing
so uncertain and changeable, that it alters every moment, so that it is
necessary to ask of every infant so soon as it is born its consent to government,
if you will ever have the consent of the whole people.[53]

One of the most original and insightful of Filmer’s commentaries occurs in his Observations Concerning the Originall of Government and is repeated in his “Preface” to The Anarchy. His point is that all government, by its very nature, is arbitrary, so it really makes no different what form government takes.

We flatter ourselves if we hope ever to be governed without an arbitrary
power. No: we mistake; the question is not whether there shall be an
arbitrary power, whether one man or many? There never was, nor ever can
be any people governed without a power of making laws, and every power of
making laws must be arbitrary.”[54]

Thus Filmer totally rejects the idea of a lawful government; “he repudiates at one fell swoop the idea of a ‘government of laws, not of men’ and its historical but not logical concomitant, the belief that a popular government cannot be arbitrary” because it is based on the will of the people.[55] As Filmer logically points out, “if it be tyranny for one man to govern arbitrarily, why should it not be far greater tyranny for a multitude of men to govern . . . ? It would be further inquired how it is possible for any government at all to be in the world without an arbitrary power; it is not power except it be arbitrary. . . .”[56] Not only does Filmer emphasize that it is impossible to get away from the fact that government by its very nature is arbitrary, but he identifies the “law-making” features of government as the essence of its arbitrariness. In an argument foreshadowing Spooner’s “Essay on Natural Law,” Filmer identifies perhaps the most tyrannical feature of all governments: their claims to make laws for the people.

Finally, Filmer presents us with one last argument demonstrating the anarchist implications of consent theory. Filmer found no constitutional solution to the problem of anarchy; for even a limited government or “mixed monarchy,” as he termed it, was a contradiction in terms. Sovereignty must reside either in the people or in their monarch. It cannot be shared by both. Thus Hunton in his essay on monarchy caught himself “in a plain dilemma”:

If the King be judge, then he is no limited monarch; if the people be judge,
then he is no monarch at all. So farewell limited monarchy, nay farewell all
government, if there be no judge.[37]

If every man’s conscience is the arbiter of the fundamental controversies, if the appeal must be to the community at large to settle disputes with the monarch, then as Filmer concluded, “The wit of man cannot say more for anarchy.”[58] In Filmer’s opinion, the end result of this would be “utter confusion and anarchy.”[59]

This review of Filmer’s arguments demonstrates why his political tracts have an importance far surpassing the mere fact that Locke wrote in rebuttal to his Patriarcha. Filmer questioned the principle essential to all accounts of political obligation other than his own, the principle of consent.[60] Perhaps, it could be argued that Locke realized Filmer’s uncanny and unerring ways of pushing consent arguments to their radical anarchist conclusions required their own answer. But the fact remains that Locke’s efforts seem to have gone for naught.

Locke presented us with a mixed bag of answers in The Two Treatises of Government. One of the problems he had in his mind was the problem of the legitimacy of political communities, both past and present. How was it that many, many centuries ago, and while still in a state of nature, men came to form political institutions? And what, if any, bearing did their actions have on contemporary governments? In Locke’s writings the purpose of political authority was to protect life, liberty, and property of the citizenry. So long as these protections were offered by an agency that drew its authority from the consent of the people and did not degenerate into absolutism, political obligation appears to have been complete, according to Locke’s thinking.[61]

“To Locke there was no question ‘That the beginning of Politick Society depends upon the consent of the Individuals, to joyn into and make one Society,’ and he believed that reason and history clearly showed that ‘the Governments of the World, that were begun in Peace, . . . were made by the Consent of the People.’ “[62] Locke distinguished two sorts of consent “which subject an individual to the laws of a legitimate political society.”[63] For Locke, the question of how one becomes a member of a state, and why one is obliged to obey it were separate questions. His use of the concepts of tacit and explicit consent helped illustrate this. Membership was limited to those who had expressly consented. “Express consent demands the making of some overt sign of agreement by the consenting party to the legitimacy of the social structure which he himself intends to be taken as a promise to obey the rules in the future. An oath of allegiance taken to a king is an obvious example. . . .”[64] Nonmembers, but residents in the geographic area over which the state exercised jurisdiction, incurred their obligations by giving tacit consent. “Tacit consent is incurred,” according to Locke, “by anyone who voluntarily takes advantage of the resources of the country.”[65] One’s physical presence in the country’s territory is a sufficient condition for being held in this way to have consented tacitly.[66]

One of Locke’ s basic premises, to which he reverts frequently throughout The Second Treatise, is that “Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent. . . .” Therefore, Locke wishes to inquire what “it is to be considered . . . shall be understood to be a sufficient Declaration of a Man’s Consent, to make him subject to the Laws of any Government’? Locke answers:

No body doubts but an express consent, of any Man, entering into any society,
makes him a perfect member of that society, a subject of that Government.
The difficulty is, what ought to be looked upon as a tacit Consent, and how
far it bind, ie, how far any one shall be looked on to have consented and
thereby submitted to government, where he has made no expressions of it at all.
And to this I say that every Man that hath any possession or enjoyment of any
part of the dominions of any government doth thereby give his tacit consent,
and is as far forth obliged to obedience to the laws of that government during
such enjoyment as any one under it; whether this possession be of land to him
and his heirs forever, or a lodging only for a week, or whether it be barely
travelling freely over the highways and in effect it reaches as far as the
very being of anyone within the territories of that government.[67]

Locke clearly recognizes that exclusive territorial sovereignty is one of the characteristics of government. Everyone living within a given geographic area is subject to the jurisdiction of that area’s government. Locke indirectly realizes that the alternative to this would be anarchy, for he writes, “For it would he a direct contradiction, for any one, to enter into Society with others . . . And yet to suppose his Land, whose Property is to be regulated by the Laws of the Society, should be exempt from the Jurisdiction of that Government.”[68] Therefore Locke concludes that when one unites “his Person” to any commonwealth, “by the same he unites his Possessions, . . . and they become, both of them, Person and Possession, subject to the Government and Dominion of that Commonwealth. . . .”[69]

If we are to assign any meaning to Locke’s doctrine of consent, it is clear that people must have the opportunity to consent or not consent as they please. The only provision for not consenting in Locke’s treatise is emigration from the commonwealth. This is Locke’s escape from tyranny, for if people “are not permitted to emigrate, they can hardly be said to have consented.” Emigration is a logical necessity within the framework of Locke’s theory of consent, because without it, the whole theory loses its viability.[70] What Locke says is this: “The Obligation any one is under, by Virtue of such enjoyment, to submit to the government, begins and ends with the Enjoyment; so that whenever the Owner, who has given nothing but such a tacit consent to the Government, will . . . quit the said Possession, he is at liberty to go and incorporate himself into any other commonwealth,” or to begin another one.” Thus, emigration should be a right every person should enjoy at every moment, unless he has committed himself to the commonwealth forever.[72]

Unfortunately for Locke’s theory, his recognition of the right to emigration and to shed one’s citizenship was not even recognized in his own day. Locke writes as though no persons born in the English commonwealth, or of English parents abroad, acquire their citizenship until they consent to become members of the Commonwealth, “as each comes to Age.”[73] He claims that it is the practice of governments, “as well as by the Law of right Reason, that a Child is born a subject of no Country or Government,” particularly in the case of English parents bearing a child in France.[74]

The truth of the matter is that governmental practice and the common law of allegiance had already developed to such a point in Locke’s time that no child born within England, of parents who were subject to its jurisdiction, had any choice in the matter of what citizenship it acquired. They were considered to be English subjects by birth, by the mere fact of being born within the realm. Nor were English subjects permitted to shed their English citizenship at will, without the permission of the King. “The fundamental principle of the common law with regard to English nationality was birth within allegiance . . . and at common law it was firmly established that no citizen or subject possessed the power of throwing off his allegiance without the sovereign’s consent.”[75] Even “those born abroad of English parents, share the status of English subjects.” One’s status as a subject is ordinarily indelible and cannot be shed at will.[76] This was what it meant to be an English citizen throughout the seventeenth century. These interpretations had been confirmed by Calvin’s Case in 1609, so surely Locke should have been aware that his theories did not meet the common law decisions. Emigration at Locke’s time did not ordinarily permit the shedding of citizenship.[77]

We should not be surprised that Locke’s doctrine of tacit consent cannot be taken seriously. It was not good scholarship, even in his own day, nor did it really provide a logically consistent response to the problem of political obligation. It was no more than a saving hypothesis “brought in to meet the difficulty that in fact men do not expressly declare their consent to the regime under which they live. All that (really) remains of Locke’s teaching is that legitimate governments are those that secure the voluntary obedience of their subjects.”[78]

Despite the problems with Locke’s doctrine of consent, “his commitment to what he called consent is unassailable.”[79] There is no question as to what he wrote; the only question is, Did he really mean what he said? “But I moreover affirm, that all Men are naturally in that State [the state of nature] and remain so, till by their own Consents they make themselves member of some Political Society. . . .”[80] And again, “Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of Another, without his own Consent.”[81]

Yet at the same time, Locke was familiar with the thrust of Filmer’s reductios and saw where his own doctrine was leading him. As Locke put it, “For if the consent of the majority shall not in reason, be received, as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: But such a consent is next impossible ever to be had. . . . Such a Constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest Creatures; and not let it outlast the day it was born in. . . .” [82] Locke clearly realized that his own theory of consent, strictly interpreted, would lead to anarchy. His only wav out was to make “consent” include an agreement to abide by majority rule. “Whosoever . . . united into a Community, must be understood to give up all the power . . . to the majority of the Community. . .”[83]

Locke’s outlook on property also wrestled with the problem of consent. “The Supream Power cannot take from any Man any part of His Property without his own consent.”[84] Could one’s property be taken from him against his will, as when taxes are levied and collected? Locke answered this problem in the following manner. He realized that the right to collect funds coercively was one of the most important needs of a government: “Tis true, Governments cannot be supported without great Charge, and tis fit every one who enjoys his share of the Protection, should pay out of his Estate in proportion for the maintenance of it. But still it must be with his own Consent, i.e., the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them.”[85]

It is plain that The Two Treatises is open to at least two readings: Locke, the individualist, whose consent theory leads to a radical libertarianism; and Locke, the conservative, who was attempting to justify the English political institutions of his time. It was not so long after the appearance of The Two Treatises in 1689 that Locke’s ideas were used to justify the radical position. “The transposition of Locke’s doctrine” to other political settings “did indeed have subversive implications,” for within a decade of the book’s appearance, its author and his ideas were used to support the rights of the Irish parliament and Irish people.[86] William Molyneux (1656-1698) was an Irish friend and correspondent of Locke’s, who represented Dublin University in the Irish parliament. During the late 1690s he was concerned with the effect of the recent legislation of the English parliament on the woolen and linen industries in Ireland. This and his correspondence with Locke led him in 1698 to publish “The Case of Ireland’s Being Bound by Acts of Parliament in England Stated.” His basic purpose was to prove the legislative independence of the Irish parliament, and in doing this, he resorted to Locke’s treatise as a justification for his position. “Molyneux used the book and named Locke as its author at a time when Locke refused to acknowledge it even in private, and without asking his permission.”[87] The book created a stir in the English House of Commons, and a committee was appointed to investigate it for suspicions of treason. The committee “unanimously resolved ‘that the said book was of dangerous consequence to the crown and parliament of England.’ “[88] History has it that Molyneux’s book was ordered to be burned by the common Hangman.[89 ]

What was it that made Molyneux’s book such a threat? Quite simply it was his insistence on a literal interpretation of Locke’s consent theory. His critics realized that it led straight toward anarchy. The heart of Molyneux’s argument sounds remarkably Lockean and anarchist. He wrote:

I shall venture to assert, that the Right of being subject only to such
laws, to which Men give their ‘own’ Consent, is so ‘inherent’ in ‘all’
Mankind, and founded on such ‘immutable’ Laws of Nature and Reason,
that ’tis not to be aliened, or given up by any Body of Men whatever. . . .
I have no other Notion of ‘Slavery’; but being bound by Law, to
which I do not consent.[90]

Molyneux clearly understood the relationship between property rights and consent. “Consent is a necessary condition for the transfer of title. To use or dispose of another person’s property without his consent is the fundamental act of injustice.”[91] According to Molyneux:

The Obligation of all Laws have the same Foundation, if ‘One’ Law may be
imposed ‘without Consent’, any ‘Other’ Law whatever, may be imposed on us
‘without our Consent’. This will naturally introduce ‘Taxing us without
our Consent’; and this as necessarily destroys our ‘Property.’ I have no
other Notion of ‘Property’, but a ‘Power of Disposing my Goods as I please’,
and not as another shall Command: Whatever another may ‘Rightfully’ take
from me ‘without my Consent’, I have certainly no ‘Property’ in. To ‘Tax’
me without Consent, is little better, if at all, than ‘downright Robbing me’.[92]

Molyneux was probably the first to explicitly relate these main elements of proprietary justice. Clearly there was no difference between taxation and robbery, if consent was unnecessary in the former case. Perhaps Molyneux would not have applied his theory in typical anarchist fashion to delegitimize all government (for he was arguing for an all-Irish parliament, which in all likelihood would itself have powers of taxation). Nonetheless, his ideas and reputation did survive his own death and were repeatedly “taken up with each burst of Irish national sentiment throughout the century, by Swift, Charles Lucas, by Garran and Pollock, even eventually by Wolf Tone.”[93]

Other than Molyneux’s claims for the Lockean theory of consent, its application to the colonial relationships within the British Empire remained unexamined for the most part until the 1760s. Most theorists, applying Locke’s doctrine of tacit consent, saw no incongruity between the legislative sovereignty of the English parliament and the conventional theory of Whig politics, which in turn was largely premised on The Two Treatises. The opponents of Molyneux in 1698 based their argument on the idea that emigration removed the right of direct representation in the English parliament. This eliminated the requirement for the émigrés’ explicit consent to the acts of the parliament in England.[94]

Throughout the eighteenth century, Locke’s idea of emigration and the idea of tacitly consenting to one’s government by maintaining residence within the geographic area of its jurisdiction were ridiculed as an unsound theory. Indeed Adam Smith in his Lectures on Justice. Police, Revenue, and Arms (circa 1763) argued that most people under the dominion of a government cannot be said to give consent to that government, in the sense that they would, consent to a contract. “To say that by staying in a country a man agrees to a contract of obedience to government is just the same with carrying a man into a ship and after he is at a distance from land to tell him that by being in the ship he has contracted to obey the master.”[95] David Hume, fifteen years earlier, asserted in his essay “Of the Original Contract” that it was ridiculous to claim “that political connexions are founded altogether on voluntary consent or mutual promise.” (“The magistrate would soon imprison you as seditious for loosening the ties of obedience, if your friends did not before shut you up as delirious for advancing such absurdities.”)[96]

Can we seriously say that a poor peasant or artisan has a free choice to leave
his country, when he knows no foreign language or manners, and lives from day to
day by the small wages which he acquires? We may as well assert that a man, by
remaining in a vessel, freely consents to the dominion of the master, though he
was carried on board while asleep, and must leap into the ocean and perish the
moment he leaves her.[97]

Hume concluded that if tacit consent and the obligation of obedience, which it entails, reached all the inhabitants of a territory, then the most outrageous tyrant could be said to govern with the consent of his subjects.[98] “If consent could be watered down like this, it would lose all value as a guarantee of individual liberty.”[99]

Perhaps the most interesting of the eighteenth century Lockean commentators was Josiah Tucker, who in A Treatise Concerning Civil Government (1781) “opined that Locke neglected to carry the consent doctrine to its logical end–i.e., anarchism.”[l00] Tucker (1713-1799) was a British clergyman with great interest in economic and political matters. He was an avid pamphleteer and polemicist. As matters were coming to the point of rebellion in the North American colonies, Tucker wrote of the American revolutionists as the “most ungrateful, ungovernable, and rebellious people” he had ever known.[l0l] He claimed that the Americans were virtually represented in parliament and “he never doubted the right to tax them.”[l02] Nevertheless, he took the unpopular stand, even before the outbreak of the revolution, that the American colonies should be allowed their independence. Their forceful inclusion in the British Empire would only lead to both political and economic disruption for Britain herself and was therefore to be avoided.

Despite the fact that he refused to support the subjugation of the colonies by force, the appeal of the Americans to Locke’s right of revolution “filled him with anxious forebodings.”[l03] As early as 1775, he declared that “Locke’s principles of government, if carried out as the Americans construed them, would destroy every government on earth.”[104] In 1778 he circulated a manuscript, “The Notions of Mr. Locke and His Followers . . . Considered and Examined,” which he later used in the preparation of his major work, A Treatise Concerning Civil Government (published 1781). To Tucker, the phrase “consent of the governed” was simply one “loaded with dynamite.”[105] He assailed the Lockeans first for thinking that their form of government by consent was the only true government and then for not living up to their very own principles. He viciously pointed out that the American revolutionaries, who claimed liberty for themselves, refused to liberate their slaves or extend the franchise to include unpropertied men or women. In proving that the adherents of Locke pushed his principles to a reductio ad absurdum, Tucker quoted Molyneux, and other late eighteenth century supporters of Locke, such as Joseph Priestly and Richard Price. Tucker referred to Sir Robert Filmer, but only in a derogatory way.[106]

Tucker was fully aware of all the implications to be drawn from the Lockean system, and it was those implications, more than anything else, that made him fearful of its advocacy. He clearly saw the integral relationship between taxes, government, and slavery. Tucker claimed that the declarations of the Lockeans ultimately reduced themselves to the pronouncement “that the very Essence of Slavery doth consist in being governed by Laws, to which the Governed have not previously consented.” 107] And he realized that if governments were to exist at all then “we must submit to Taxes” (which he clearly comprehended were compulsory levies and not voluntary contributions) because there was no other way of supporting them.[l08]

But say the Lockians, Taxes are the Free-Gift of the People:–Nay, they are the
Free-Gift of each Individual among the People: “For even the Supreme Power
(the Legislature) cannot (lawfully or justly) take from any Man any Part of his
Property without his own Consent.” This is Mr. Locke’s own Declaration.
And Mr. Molyneux corroborates it by another still stronger, viz. “To tax
me without my Consent is little better, if at all, than down-right robbing me.
” In short all the Lockians hold one and the same Language on this Head:
And therefore you must take their favourite Maxim for granted, or you will incur
their high Displeasure: “You are an Advocate for Despotism, if you do not
acquiesce in this Maxim: You attempt to defend what is down-right Robbery.[109]

Tucker viewed the Lockean system and the American revolution that it spawned as a “universal Demolisher of all Civil Governments, but not the builder of any.”[110] The root of the American rebellion was to be found in the premise that “the imposing of Laws on them of any Kind, whether good or bad in themselves, and whether for the Purposes of Taxation, or for other Purposes, without their own Consent, is . . . a most intolerable Grievance! a Robbery! and an Usurpation on the unalienable Rights of Mankind.”[111]

In short, the brave American were resolved not to be Slaves; but Slaves, it
seems, they must have been (according to the Lockian Idea) had they acknowledged
the Right of the Mother Country, even in a single Instance, to make Laws to bind
them without their Consent:–I say, even in a single Instance; for the Lockian
Mode of Reasoning is, that there is no Difference between being vested with
discretionary Power, and with a despotic Power. “Inasmuch as, if a Government
has any Right to rule me without my Consent in some Cases, it has a Right to rule
me in every Case; consequently it has a Right to levy every Kind of Tax, god or bad,
reasonable or exorbitant upon me, and to inflict all Sorts of Punishments whatever.”[112]

Tucker’s concept of government depended on the idea of quasi-contract or trust, on the obligation of subject and king to perform their implied duties. Reason, common sense, and the known laws of the land all coincided to reinforce the reciprocal duties of subject and governor in a manner unacceptable to those who rejected the tacit consent doctrine. One of Tucker’s insightful observations was that the objection of those who rested their arguments on “explicit consent” (as opposed to the recognition of a quasi-contract or tacit consent) was that their real objections were not so much against the law themselves or the manner in which they were administered, but rather against the “Right, Title, or Authority to make, or to execute any Laws at all, be they in themselves good or bad.”[113] The sole question between Tucker and his Lockean opponents was “Whether That Government is to be justly deemed an Usurpation, which is not founded on express mutual Compact of all the Parties interested therein, or belonging thereunto?”[114] Anarchists who took the Lockean notions to their logical finality were not concerned with the goodness or badness of governmental laws, but rather with the ultimate title or authority of governments themselves to legislate any laws at all. As Tucker puts it, “For the sole Point here to be determined, is simply this.–Had the Makers of such a Law any Right to make it, according to the Lockian Ideas of Right and Wrong?”[115]

To the anarchist, a man is a slave who is required to submit even to the best of laws or the mildest government that ever existed.[116] Coercion is still coercion regardless of how mildly it is administered. A man is free who submits to no one or no group of people, except as be himself has consented to it. “So the great Good of political Liberty, and the intolerable Evil of political Slavery, are according to the blessed Doctrine, resolved at last into the single Words–Consent, or Not Consent. . . .”[117] Although Tucker did not defend the anarchist conclusions of the Lockean principles, he was logician enough to see where they led. It was this power of mind that gives him, the non-libertarian, a place in the libertarian history of the consent doctrine.

The radical abolitionists of the mid-nineteenth century incorporated the ideas of explicit consent into their attacks on slavery. Not only was slavery a violation of the slave’s self-ownership rights, but it was obvious that people were forced into, and retained in, slavery against their will. Being held in bondage was a coercive situation, not one consented to by the slave. Being bound to pay taxes or support a coercive government was almost as evil as being made a slave. As Tucker pointed out, one of the earliest conclusions of the Lockeans, such as Molyneux, was that there was no other notion of slavery but being bound to a law to which one did not consent.

There are two interesting examples made of the idea of consent by well-known antislavery radicals in the 1840s. Henry David Thoreau, as early as 1840, was protesting the assumption that his parents’ membership in a church congregation automatically made him a member.
Continue to Part II

by Carl Watner
1986

(Much like the assumption that if one’s parents are English, one’s allegiance and citizenship are automatically British.) “In Thoreau’s day, the church taxed each member of its congregation, and the taxes were billed and collected by the town officials.”[118] The First Parish Church (Unitarian) of Concord “taxed” Thoreau in 1840, but he refused to pay. The tax was finally disallowed when at the request of some of the selectmen, Thoreau agreed to present them with the following statement: “Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any incorporated society which I have not joined.” Thoreau adds that “if I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find a complete list.”[119] One honestly wonders whether Thoreau ever considered himself as joining the Commonwealth of Massachusetts?

Thoreau’s friend and confidant Charles Lane, in his series of letters published in 1843 on “A Voluntary Political Government,” made a number of interesting comments about the meaning of citizenship. In a discussion of consent, Lane points out that the preamble to the state constitution of Massachusetts reads: “The body politic is formed by a voluntary association of individuals.” If this be the true case, Lane argues, then his advocacy of “voluntary political government” entails a principle already embraced by the Commonwealth of Massachusetts in her very own constitution. As Lane explains,

All, therefore, on behalf of which I am asserting may be summed up
as the restoration of the primary constitutional principle. I give
no strained or unusual value to the word “voluntary” on
this occasion. Either it means choice, or it means nothing at all.
If it does not assert the free voluntariness of every individual
who comes into “the body politic” it signifies nothing;
or at least nothing which common sense can lay hold of. If the
voluntariness is to be confined to those who have the power, and
they are to be at liberty to force every one into the association,
then I must esteem this word “voluntary” to be a solemn
mockery; and the sooner it is erased, and the term “forced”
put in its stead, the sooner the words of the constitution harmonize
with the idea of its framers, and be at one with the very practice of
its supporters.[120]

The nineteenth century thinker who, perhaps more than any other, elaborated on the significance and implications of government by consent was Lysander Spooner. Spooner (1808-1887) was a constitutional lawyer, abolitionist, and freethinker who became progressively more radical as be grew older. In an appendix to his Essay on Trial by Jury, published in 1852, Spooner noted (much like Molyneux and others) that it was a principle of the common law that no persons could be taxed without their personal consent. To Spooner, even before he saw the governmental carnage and atrocities of the Civil War, “taxation without consent” was “as plainly robbery” whether it was enforced by one man against millions, or enforced by millions against one man who did not consent. “Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act” could ever alter the fact that property was being forcefully taken from at least one person against his will. Spooner defended the principle of “no taxation without consent” in the following manner:

If the government can take a man’s money without his consent there is no limit
to the additional tyranny it may practice upon him. . . . It is therefore a
first principle, a very ‘sine qua non’ of political freedom, that a man can
be taxed only by his personal consent. . . . Government have no more right,
in nature or reason to ‘assume’ a man’s consent to be protected by them, and
to he taxed for that protection, when he has given no actual consent, than a
fire or marine insurance company have to assume a man’s consent to be protected
by them, and to pay the premium, when his actual consent has never been given.
To take a man’s property without his consent is robbery; and to assume his
consent where no actual consent is given, makes the taking none the less robbery.
If it did, the highwayman has the same right to assume a man’s consent to part
with his purse, that any other man, or body of men, can have. And his assumption
would afford as much moral justification for his robbery as does a like assumption,
on the part of the government, for taking a man’s property without his consent.
The government’s pretense of protecting him, as an equivalent for the taxation
affords no justification.[121]

After the Civil War, Spooner wrote a series of pamphlets called No Treason. According to Spooner in these essays, governments and nations, if they can be said to rightfully exist at all, can exist only by consent, and this means: “the separate individual consent of every man who is required to contribute, either by taxation or personal service, to the support of the government. . . . Either the separate individual consent of every man who is required to aid, in any way, in supporting the government is necessary, or the consent of no one is necessary.”[122]

In No Treason, No. 2, Spooner argued that “either ‘taxation without consent is robbery’ or it is not. If it is not, then any number of men who choose, may at any time associate; call themselves a government, assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, ‘taxation without consent is robbery,’ it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a tax-gatherer, that he has to defend it against a highwayman.” [123]

In his final pamphlet of this series, No Treason, No. 6, “The Constitution of No Authority,” Spooner broke new ground by demolishing the theory of tacit consent. Spooner argued that merely living in a certain geographic area under control of a government, or voting in government elections, in no way implied one’s consent to the government of that territory. Elections mean nothing; for Spooner showed that a majority of people never vote, and of those who do, the number supporting the elected candidates is so small (as a percentage of the population) as to be ludicrous. “Elections are secret; therefore, you cannot call representatives legal agents, since they do not know specifically whom they do represent.” Therefore, having voted in an election in no formal way demonstrates that one consented to anything. “On the question of the Constitution itself, no vote ever had been taken, and as a legal contract the Constitution has no validity.”[124] According to Spooner,

the Constitution was never signed, nor agreed to, by anybody, as a contract,
and therefore never bound anybody, and is now binding upon nobody; and is,
moreover, such a one as no people can ever hereafter be expected to consent
to, except as they may be forced to do so at the point of the bayonet.[125]

The anarchistic implications of all this should be quite clear. The state has no right to raise any taxes except as they are “voluntary” contributions or “contractual” obligations for services rendered.[126] In fact the historical origin of taxation demonstrates its relationship to the idea of consent. At least some forms of taxation “were matters of voluntary grant,” but “their history is bound up with the gradual growth of the right of the majority to bind the individual.” During the reign of Henry III (1227-1258), an example is cited of a nobleman claiming immunity from a tax “on the ground that he as an individual had not consented to its levy.”[127] As another commentator has pointed out, “consent no longer effectively safeguards the sanctity of private property if it ceases to be personal and individual.” Yet the very growth of such expressions as “no taxation without representation” tended to purposefully obscure this important point. Once the parliamentary practice became accepted by which “electors appointed representatives, or proxies, to give consent in their name,” the sense of individual consent to taxation “inevitably lost ground.”[128]

In its extreme form the doctrine of consent signifies that a man is bound only by what he consents to. If individual consent is the only rightful source of power, the question must be raised why “even a single objector should be coerced, possibly against his own conscience.”[129] This “anarchial principle” has always been embraced by radical libertarians, and certainly no one belabored the point more than did Spooner.”[130] As one of the major contributors to the development of the proprietary theory of justice in the libertarian tradition, one of Spooner’s greatest achievements was “to demolish the tacit consent doctrine, particularly as it applied to the U.S. Constitution. Spooner’s natural rights theory, combined with his refusal to recognize the surrender of rights through tacit consent, brings out the radical anarchism latent in the Lockean tradition.”[131]

Certainly one critical element of the proprietary theory of justice was the view that one’s just property titles could not be rightfully alienated without one’s consent. That is what it meant to own property or exercise dominion over one’s own. This was noted by some of the predecessors of the Levellers, as well as by the Levellers and other seventeenth century political thinkers. Two years after Ponet’s treatise appeared, Christopher Goodman published his Superior Powers in 1558, in which he embraced natural rights, “declaring that men ‘may lawfully claim’ their liberty ‘as their own possessions,’ and concluding that ‘if they suffer this right to be taken from them,’ they are letting themselves be robbed no less than if they let their rulers remove any of their other goods.”[132] A century later, Richard Baxter, an English clergyman, reiterated the same point: “Propriety is naturally antecedent to government. . . . Every man is born with propriety in his own members, and nature gives him a propriety in . . . [the] just acquisitions of his industry. Therefore no rule can justly deprive men of their propriety, unless it be . . . by their own consent. . . . And men’s lives and liberties are the chief parts of their propriety.”[133] The radicalism of consent doctrine was twin-edged. No one could be obliged to obey a government to which he or she did not consent; but even more significantly, no one could be bound to contribute their “lives” or “properties” to such a government either. The necessity of having voluntary consent to taxation or conscription makes government an impossibility.

Radical political philosophy since the seventeenth century has been characterized to a large extent by these forms of “voluntaryism,” “by an emphasis on the assent of individuals as the standard of political legitimacy”[134] This review of consent theory in the libertarian tradition has sought to demonstrate that the individualist and voluntaryist character of the consent doctrine would actually “deprive every existing polity of its legitimacy.”[135] Its most perceptive critics, such as Sir Robert Filmer and Josiah Tucker, clearly saw this, and their critiques of consent theory were largely premised on this realization. Both Filmer and Tucker believed that the supporters of consent were “either internally inconsistent or disastrous in their prospective practical implications. Either their positions must be instances of remarkable stupidity or they must be held in bad faith. If they mean what they say, their beliefs would imply anarchy.”[136] They charged their opponents “with either evading the question or adopting theories that logically destroyed the moral authority of government. . . .”[137] Other others who embraced Lockean ideas were often not aware of the ultimate implications that could be deduced from their initial premises. There is no question but that “consent implies voluntariness and the association of almost every individual with the government which has control over him is clearly involuntary.”[138] So for nearly three centuries now, the most perceptive political theorists have perceived that there is a large, unbridgeable chasm between the idea of consent and government. There is simply no way to cross that bridge, for inevitably to contend that government rests on consent is to begin the descent on the slippery slope to anarchism.”[139]

NOTES

a. Author’s Note: I would like to thank George Smith for originally pointing out many of the historical connections to be made in the intellectual history of the consent doctrine, especially for his references to Filmer and Tucker.

1. A. S. P. Woodhouse, ed., Puritanism and Liberty (Chicago: University of Chicago Press 1951), p. 59 of The Putney Debates.
2. George H. Smith, “William Wollaston on Property Rights,” Journal of Libertarian Studies 2 (1978):217-24, at 224.
3. Ibid.
4. Winthrop S. Hudson, John Ponet (Chicago: University of Chicago Press, 1942). Note that this volume also includes a photographic reprint of Ponet’s work (A Shorte Treatise of Politike Pawer; And of the True Obedience Which Subiectes Owe to Kynges and Other Civile Governaurs, With an Exhortacion to All True Naturall Englishemen, 1556). References to Ponet refer to this photographic reprint. See Ponet, A Shorte Treatise, title page and pp. 21, 35, 47, 79, 98.
5. Quentin Skinner, The Foundations of Modern Political Thought, Vol. 2 (Cambridge: Cambridge University Press, 1978), pp. 223, 320.
6. Hudson, op. cit., p. 144, and Ponet, op. cit., p. 88.
7. Hudson, op. cit., p. 137, and Ponet, op. cit., pp. 26-28.
8. Ponet, op. cit., p. 107.
9. Hudson, op. cit., p. 158.
10. Skinner, op. cit., p. 343.
11. Hudson, op. cit., p. 160.
12. Ibid., p. 210.
13. Ibid., p. 216, citing Charles Francis Adams, ed., The Works of John Adams, Vol, 6 (Boston: Charles C. Little and James Brown, 1851), p. 4.
14. The Oxford English Dictionary, Vol. I (Oxford: At The Clarendon Press, 1933), see “anarchical,” “anarchism,” and “anarchy,” pp. 307-8.
15. Gordon Schohet, Patriarchalism in Political Thought (New York: Basic Books, 1975), p. 107.
16. The Oxford English Dictionary, op. cit., p. 307.
17. Woodhouse, op. cit., Introduction, p. 51.
18. William Haller, ed., Tracts on Liberty in the Puritan Revolution, Vol. 3 (New York: Columbia University Press, 1934), p. 172, which is p. 56 of Parker’s text.
19. Woodhouse, op. cit., Introduction, p. 33.
20. Ibid., pp. 53, 65-68.
21. Ibid., p. 69, which is pp. 3-4 of Overton’s text.
22. Ibid., p. 75.
23. Ibid., pp. 72, 75, 85-86.
24. Ibid., p. 322, Sec. 8, “Leveller Principles,” citing from the Levellers’ “Large Petition.”
25. Carl Watner, ed., A Voluntary Political Government; Letters from Charles Lane (St. Paul: Michael E. Coughlin, 1982), p. 33.
26. Woodhouse, op. cit., Introduction, p. 87.
27. Carl Watner, “ ‘Come What, Come Will!’ Richard Overton, Libertarian Leveller,” Journal of Libertarian Studies 4 (1980): 405-32, at 406, citing Perez Zagorin, A History of Political Thought in the English Revolution (London: Routledge and Kegan Paul, 1954), p. 41,
28. Ibid., p. 408, citing H. N. Brailsford, The Levellers and the English Revolution (London: Cresset Press, 1961), p, 264.
29. Woodhouse, op. cit., The Putney Debates, p. 75.
30. Watner, op. cit., p. 409, citing Woodhouse, op. cit., Introduction, p. 91.
31. Woodhouse, op. cit., The Putney Debates, p. 53.
32. Ibid., p. 66. Note, however, that Wildman was arguing for a representative government with an expanded franchise, and not for anarchism.
33. Woodhouse, op. cit., Documents Relating to the Putney Debate, p. 440.
34. James Daly, Sir Robert Filmer and English Political Thought (Toronto: University of Toronto Press, 1979), p. 83.
35. John W. Robbins, “The Political Thought of Sir Robert Filmer” (Ph.D. dissertation, Johns Hopkins University. 1973), p. 17; and Peter Laslett, “Sir Robert Filmer,” William and Mary Quarterly 5 (1948, 3rd series):521-46, at p. 546.
36. Daley, op. cit., p. 86; and Peter Laslett ed., ”Patriarcha” and Other Political Works of Sir Robert Filmer (Oxford: Basic Blackwell, 1949), p. 36.
37. Daley, op. cit., p. 89.
38. Schochet, op. cit., p. 129.
39. J. W. Allen, “Sir Robet Filmer,” in F. J. C. Hearnshaw, The Social and Political Ideas of Some English Thinkers of the Augustan Age (London: George A. Harap & Co., 1928), pp. 27-46, at 28.
40. Laslett, ed., Works, p. 294. All references to Filmer’s works are to those appearing in the Laslett edition and will be cited as Laslett, ed., Works.
41. lbid., p. 285.
42. lbid., p. 286.
43. lbid., p. 81.
44. Allen, op. cit., p. 36.
45. From Laslett’s “Introduction” in Laslett, ed., Works, cit., p. 16.
46. Schochet, op. cit., p. 123.
47. Laslett, ed., Works, p. 82.
48. lbid.
49. lbid.
50. lbid., p. 225.
51. lbid., p. 287.
52. Ibid.
53. Ibid., p.211.
54. Ibid., p. 277. Emphasis added.
55. Robbins, op. cit., p. 170.
56. Laslett, ed., Works, p. 254.
57. Ibid., p. 259.
58. Ibid., p. 300.
59. lbid., p. 297.
60. From Laslett’s Introduction, Works, p. 31.
61. Schochet, op. cit., p. 260.
62. Ibid., p. 261, citing Locke’s Second Treatise, sections 117 and also sections 95, 112, 119-121, 192, 197, 198. Note all references to Locke’s Second Treatise will refer to Peter Laslett, ed., Two Treatises of Government (Cambridge: At the University Press, 1960). Citations will not be by page number but rather to sections. Hence, Laslett, ed., Locke, II, 117 refers to section 117 of the Second Treatise.
63. John Dunn, The Political Thought of John Locke (Cambridge: At the University Press, 1969), p. 131.
64. Ibid., p. 133.
65. Ibid., p. 131.
66. Gordon J. Schochet, ed., Life, Liberty, and Property: Essays on Locke’s Political Ideas (Belmont, Calif.: Wadsworth Publishing Co., 1971), p. 8. Schochet in his Introduction makes the point that Locke distinguished between expressly consenting to membership in political society and mere presence, or tacit consent.
67. Laslett, ed., Locke, II, 119.
68. Ibid., II, 120.
69. Ibid.
70. Dunn, op. cit., p. 140.
71. Laslett, ed., Locke. II, 121.
72. Dunn, op. cit., p. 133, citing Laslett, ed., Locke, II, 115, 116, and 121. This borders on a problem Filmer raised, which is how a person can commit himself to citizenship for life. Is it possible that once express consent is given, it can never be withdrawn?
73. Laslett, ed., Locke, II, 117.
74. Ibid., II, 118.
75. Corpus Juris, Vol. 11 (New York: American Law Book Co., 1917), pp. 783 and 787 under reference “Citizens.”
76. Dunn, op. cit., p. 137 citing Sir William Holdsworth, A History of English Law, Vol. 9, 3rd ed. (London: Methuen & Co., 1944), pp. 84, 86.
77. Even today, governments jealously guard the right of emigration and are concerned about the related loss of tax revenues that emigration entails. For example, the United States Internal Revenue Code, Sections 877 and 2107, did (and may still) provide that anyone who renounced U.S. citizenship with the purpose of tax avoidance would still be responsible for paying taxes to the U.S. government for ten years after such renunciation. As one commentator put it: “The United States government deems citizenship a privilege to be matched by the burden of Taxation.” Lloyd Shefsky and Lee Barbkoff, “Taxation and Emigration.” Tax Haven Review 2 (1975):10.
78. P. H. Partridge, Consent and Concensus (New York: Praeger, 1971), p. 22.
79. Schochet, op. cit., p. 261.
80. Laslen, ed., Locke. II, 16.
81. Ibid., II, 95.
82. Ibid., II, 98.
83. Ibid., II, 99.
84. Ibid., II, 138.
85. Ibid., II, 140.
86. John Dunn, Political Obligation in Its Historical Context (Cambridge: Cambridge University Press, 1980), p. 68.
87. Ibid. Dunn at footnote 35, p. 314, cites from Molyneux’s correspondence with Locke: “How justly they can bind us without our consent and representives, I leave the author of the Two Treatises of Government to consider.”
88. The Dictionary of National Biography, vol. 13 (London: Oxford University Press, 1967-1968), p.587.
89. Ibid., which claims that this is a false belief. See H. F. Kearney, “The Political Background to English Mercantilism 1695-1700,” Economic History Review 2 (1958-1959, 2nd series) at p. 491 for the statement that the book was condemned to be burned.
90. Robert Livingston Schuyler, ed., Josiah Tucker: A Selection from His Economic and Political Writings (New York: Columbia University Press, 1931). pp. 416-17. Tucker in A Treatise Concerning Civil Government (London: T. Caldwell, 1781) cites this and the next passage as being from pp. 113 and 169 of Molyneux’s book. For reprint of these passages, see also Carl Watner, “The Proprietary Theory of Justice in the Libertarian Tradition”, Journal of Libertarian Studies 6 (1982):289-316, at 301-2.
91. Smith, op. cit., p. 222.
92. Schuyler, op. cit., p. 416. .
93. Dunn, Political Obligation, pp. 68-69.
94. Ibid., p. 69.
95. Herbert W. Schneider, ed., Adam Smith’s Moral and Political Philosophy (New York: Hafner Publishing Co., 1948), p. 289, from Adam Smith’s “Lectures on Justice, Police, Revenue, and Arms,” Part I, Division I, Section I.
96. Henry Aiken, ed., Hume’s Moral and Political Philosophy (New York: Hafner Publishing Co., 1948), p. 359, from David Hume’s essay “Of The Original Contract.”
97. Ibid., p. 363.
98. Ibid., p. 365.
99. J. W. Gough, The Social Contract, 2nd ed. (Oxford: At the Clarendon Press, 1957), p. 139.
100. George Smith, op. cit., p. 224.
101. Schuyler, ed., op. cit., p. 35, citing p. 435.
102. Ibid., p. 35.
103. Ibid., p. 41.
104. Ibid., citing p. 378.
105. Ibid., p. 41.
106. Apparently Josiah Tucker did not want to be associated with Filmer as a defender of the divine right of kings. Undoubtedly Tucker wanted to be free of any claim that his argument and that of Filmer were similar. For the one reference by Tucker to Filmer, see ibid., pp. 450-52.
107. Ibid., p. 452.
108. J. W. Gough, John Locke’s Political Philosophy (Oxford: At the Clarendon Press, 1951), p. 90. Locke would probably have been prepared to “allow taxation to be levied by decision of a majority,” but this is as far as he would have gone. “He would have required strictly individual consent to justify any other kind of interference with private property.”
109. Schuyler, ed., op. cit., p. 444.
110. Ibid., p. 459.
111. Ibid., p. 460.
112. Ibid.
113. Ibid., p. 479.
114. Ibid., p. 412.
115. Ibid., p. 452.
116. Ibid., p. 480.
117. Ibid.
118. Walter Harding, ed., The Variorum Civil Disobedience by Henry David Thoreau (New York: Twayne Publishers, 1967), p. 61.
119. Ibid., p. 45, from “The Essay on Civil Disobedience.”
120. Carl Watner, ed., A Voluntary Political Government. pp. 40, 83.
121. Charles Shively, ed., The Collected Works of Lysander Spooner (Weston, Mass.: M & S Press, 1971), from “An Essay on Trial by Jury” (1852) in The Collected Works, vol. 2, pp. 222-23.
122. Spooner, No Treason, No.1 (1867), in Ibid., vol. 1, pp. 10-11. 123. Spooner, No Treason. No. 2 (1867), in Ibid., vol. 1, p. 13.
124. Charles Shively, Introduction to Lysander Spooner, No Treason, No. 6, “The Constitution of No Authority” (1870), in Ibid., vol. 1, p. 3.
125. Spooner, No Treason, No. 6, in Ibid., vol. 1, p. 59.
126. Dunn, Political Obligation. op. cit., p. 43.
127. A. F. Pollard, The Evolution of Parliament (New York: Longman’s, Green & Co., 1920), p.143.
128. Gough, Locke’s Political Philosophy, op. cit., p. 49.
129. Ibid., p. 58.
130. Ibid.
131. Watner, “Proprietary Theory,” op. cit., p. 304, citing George Smith, op. cit., p. 224. 132. Quentin Skinner, op. cit., Vol. II, p. 320.
133. Richard Schlatter, Richard Baxter and Puritan Politics (New Brunswick: Rutgers University Press, 1957), p. 39, citing from Baxter’s Second Part of the Nonconformists Plea for Peace (1680), pp. 54-55.
134. Patrick Riley, “How Coherent is the Socia1 Contract Tradition?” Journal of the History of Ideas 34 (1973):543-62, at 543. His reference however is to the term “voluntarism,” not voluntaryism.
135. Dunn, Political Obligation. op. cit., p. 48.
136. Ibid., p. 63.
137. J.W. Allen, op.cit., p.42.
138. C. W. Cassinelli, “The ‘Consent’ of the Governed”, Western Political Quarterly 12 (1959):391-409, at 398.
139. Watner, “Proprietary Theory,” op. cit., p. 303, referring to this as a point made by George Smith.

CARL WATNER

1979

Most libertarians view civil disobedience or resistance to the State differently than members of the general public.  Many people, of a variety of persuasions, recognize the right of the individual to resort to self-defense when attacked or threatened by the criminal.  In the libertarian view, and by libertarian definition, only the criminal resorts to the initiation of force against the peaceful and the innocent.  Where the libertarian and the non-libertarian part company is over the criminality of State initiated compulsion.  To the libertarian, the whole State apparatus is criminal.  Relying on taxation for its very existence, it obtains its income by threatening or using force to collect its revenues–not by relying on voluntary subscriptions or mutual trade.  The inference, for libertarians at least, is that it is right to oppose both the common criminal and the State, since both aggress against individual rights. Hence the libertarian proclivity for and interest in civil disobedience.[l]

  Historically libertarians have not been the only people opposed to the State, although they may have been the only group to have branded the State as illegitimate and criminal to its core.  Religious groups, such as the early Christians and Quakers, were attacked by the States within which they lived.  Conscientious objectors have long opposed State policy and their opposition has not always been limited to conscription and the refusal to pay taxes to support governmental wars.  Those with conscientious scruples have resisted compulsory vaccination, compulsory schooling of their children, and even rejected the use of government money.[2]  Such groups and the individuals composing them have never initiated aggression against their neighbors.  They were peaceful dissenters who did not conform to the demands of their government. Every act of aggression against their lives or property implied an injustice. Whether they chose to react non-violently, such as the non-resistant, William Lloyd Garrison, or whether they chose to offer active resistance, such as the forceful John Brown, they all in their own way were resisting demands of coercive governments.

  The best known civil resistant of 19th Century New England was Henry David Thoreau (1817-1862).  For several years, Thoreau did not voluntarily pay his taxes, even under protest; rather he resisted the State by not paying his taxes at all.  “The impressive thing about Thoreau’s dealing with the State is that he did not stop with theorizing but acted.” “He not only objected to the law, he made himself an object for the law to deal with.”[3]

  In his essay, “On The Duty of Civil Disobedience,” Thoreau relates the story of his own tax resistance.  During the 1840’s, state law in Massachusetts imposed on every male inhabitant above the age of 20 an annual poll tax assessment, subject to a maximum tax of $1.50. The poll tax was simply a source of revenue for the State.  If a person should neglect or refuse to pay his tax, the tax collector was authorized to seize the property of the delinquent, or in the absence of sufficient property, the tax collector was empowered to seize the body of the debtor and commit him to prison, there to remain until he shall have paid the tax and the charges of commitment and imprisonment. The latter is exactly what happened to Thoreau on either July 23 or July 24, 1846.[4]  As he related in Walden: “One afternoon, near the end of the first summer, when I went to the village to get a shoe from the cobbler’s, I was seized and put into jail, because, as I have elsewhere related, I did not pay a tax to, or recognize the authority of the State. . . .”[5]  Thoreau was not desirous of being a bad neighbor, but rather only being a bad subject of the State.  As he said, “It is for no particular item in the tax-bill that I refuse to pay it.  I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually.  I do not care to trace the course of my dollar, if I could, till it buys a man, or a musket to shoot one with–the dollar is innocent–but I am concerned to trace the effect of my allegiance.”[6]

  Thoreau had one earlier encounter with the city authorities of Concord, Massachusetts, in 1840, when he had refused to pay “a certain sum toward the support of a clergyman whose preaching my father attended, but never I myself.” He demanded that his name be removed from the church tax rolls and at the suggestion of the town selectmen, he filed a statement with them saying: “Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any incorporated society which I have not joined.”  If he had known how to name them all, Thoreau adds that he would have appended a list of all the societies to which he did not belong.[7]  Thoreau no more wished to be a member of any society that he did not voluntarily join, than he wished to be a citizen of the State without his consent.  “To be strictly just,” the authority of government “must have the sanction and consent of the governed.  It can have no pure right over my person and property but what I concede to it.”[8] Further, Thoreau recognized the right to rebel against injustice: “All men recognize the right of revolution: that is, the right to refuse allegiance to and to resist the government, when its tyranny or inefficiency are great and unendurable,”[9]

  The essay “On The Duty of Civil Disobedience” shows that Thoreau’s opposition to government was both on general principles and on specific issues.  Of the latter, he repeatedly asserts his abolitionist and anti-war views:

I cannot for an instant recognize that political organization as my government which is the slaves government also. . . . [W]hen the friction comes to have its machine, and oppression and robbery are organized, I say let us not have such a machine any longer.  In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact, that the country so overrun is not our own, but ours is the invading army.[10]

  Thoreau realized that majorities ruled over minorities because they are physically the strongest, but that did not prevent him from advocating the rights of the minority and even individual secession from government: “I do not hesitate to say that those who call themselves abolitionists should at once effectually withdraw their support both in person and property from the government of Massachusetts, and not wait till they constitute a majority of one. . . .”[11] “Why do they not dissolve . . .the union between themselves and the State,–and refuse to pay their quota into its Treasury?”[12]

  Being concerned with his own self-respect and personal integrity, Thoreau queried: “Must the citizen ever for a moment resign his conscience to the legislator?”  And he answered, “I think we should be men first and subjects afterwards.  It is not desirable to cultivate a respect for law so much as for the right.  The only obligation I have the right to assume, is to do at any time what I think right.”[13] For Thoreau,

There is a higher law than civil law–the law of conscience–and that when the laws are in conflict it is the citizen’s duty to obey the voice . . . within rather than that of the civil authorities without. If he will go to prison rather than obey an evil law, he will through his courage and his martyrdom arouse the conscience of the people “en masse” and through their resistance they will clog the machinery of tyranny by filling the courts and jails and thus bringing about the repeal of the offensive law.[14]

  Nor was Thoreau the only New Englander of his time to have this attitude towards natural law and conscience.  Thoreau’s refusal to pay his poll tax was not the first such episode of tax resistance in Massachusetts. There were at least two earlier precedents involving people known to Thoreau.  A. Bronson Alcott (1799-1888) was a well-known school teacher, writer and transcendentalist.  His English associate in Fruitlands, their co-operative farm, Charles Lane, supported Alcott in his tax resistance and also became a resistant himself.  Lane had arrived from England in October 1842, with the purpose of visiting Alcott.  Within a month of his arrival on American soil, Lane had begun advocating abolitionism, the overthrow of the American “slave” government and the immediate secession of every right-minded man.[15] Lane’s arrest occurred near the end of 1843, and was described by Emerson in his letter of December 17, 1843 to Margaret Fuller: “Mr. Lane was here lately again for two or three days having been arrested for his taxes as he stopped with the Harvard Stage at the tavern. He declined bringing any friend to answer for him and was put into jail. Rockwood Hoar heard of it and paid the debt and when I came home from seeing you in Boston I found him at my house.”[16]  Lane strenuously objected to the use of the general warrant which was used to arrest him and Alcott, and later Thoreau.  Tax delinquents were treated more harshly than debtors of private creditors and there was no legal appeal possible from imprisonment for failure to pay one’s taxes. Thoreau, too, protested against this arbitrary law of imprisonment:

One would think that a deliberate and practical denial of its authority was the only offense never contemplated by government; else why has it not assigned its definite, its suitable and proportionate penalty? If a man who has no property refuses but once to earn nine shillings for the State he is put in prison for a period unlimited by any law that I know of, and determined only by the discretion of those who placed him there; . . . [17]

  Bronson Alcott was the first to protest.  On January 17, 1843, he was arrested (but not committed) for failure to pay his 1842 poll tax.  His own Journals for this year have been lost, but fortunately there is a very clear description of his resistance which appeared in a letter written by Lane and published in William Lloyd Garrison’s Liberator on January 27, 1843.[18]  Lane insisted in his letter to the Liberator that Alcott’s resistance “does not rest upon the plea of poverty” but on a moral opposition to coercive taxation. Under the title of “State Slavery–The Imprisonment of A. Bronson Alcott–Dawn of Liberty,” Lane wrote:

It is often said, that in a condition of society where one is obliged to let pass so much that is immoral, it is not worthwhile to undergo so much inconvenience as close imprisonment on account of State prosecution.

  Very different to this however has been the feeling of A. Bronson Alcott, of Concord; and being convinced that the payment of the town tax involved principles and practices most degrading and injurious to man, he had long determined not to be a voluntary party to its continuance. Last year by the leniency of the collector in prepaying the $1.50 the question was not brought to issue. . . .

  This year a collector was appointed who could execute the law and although no doubt it went hard with him to snatch a man from his home, from his wife, from the provision and education of his little children, in which latter he found Mr. Alcott serenely engaged, he nevertheless did it. He witnessed with his own eyes the little hasty preparations. . . , the packing of a few personal conveniences to ward off the inclemencies of the season, and yet, with no higher authority than the general warrant in his pocket, which without particular investigation, trial, or inquiry hands over the liberty of every townsman to his discretion, he took a fellow citizen . . . to a long commitment.

  To the country jail, therefore, Mr. Alcott went, or rather was forced by the benignant State and its de1icate instrument. . . .

  Having worked up to this point, it appears that the enemy’s courage failed. The constable-collector, having brought his victim to the jail, the next step was to find the jailer who was not at home.  The prisoner, of course, waited patiently; and nearly after 2 hours had been thus passed, the constable announced that he no longer had the right to detain his captive.  On inquiring how that happened, he said that both the tax and costs had been paid.  To the question, by whom the payment had been made, he replied by naming a gentleman who may be regarded and who would willingly be regarded as the very personification of the State.

  In these facts, humble as the individual and the circumstances may appear, we have a wide and deep subject for reflection. . . . This act of non-resistance, you will perceive, does not rest on the plea of poverty.  For Mr. Alcott has always supplied some poor neighbor with food and clothing to a much higher amount than the tax.  Neither is it wholly based on the iniquitous purposes to which the money when collected is applied. For part of it is devoted to education and education has not found a heartier friend in the world than Bronson Alcott.  But it is founded on the moral instinct which forbids every moral being, to be a party, either actively or permissively, to the destructive principles of power and might over peace and love.

  Suppose the tax were levied by the town . . . and the full value on the amount were to be returned the next day to each payer in bread.  Would it not be a sacred duty in every man, in the virtuous integrity of his nature, to deny such a proceeding?  Doubtless it would.  All but the meanest souls would thereby be raised to dis-annex themselves from the false and tyrannous assumption, that the human will is to be subject to the brute force which the majority may set up.  It is only tolerated by public opinion because the fact is not yet perceived that all the true purposes of the corporate state may as easily be carried out on the revolutionary principle, as all the true purposes of the collective church.  Every one can see that the Church is wrong when it comes to men with the Bible in one hand and the sword in the other.  And is it not equally diabolical for the State to do so? The name is of small importance. When Church and State are divorced by public opinion, they may still carryon an adulterous intercourse.

  Then look at the peculiar law in this case.  When a debtor is imprisoned by an ordinary creditor, he can be bailed out, and have considerable liberty to employ himself, preserve his health, and the like. But the impersonal town is an inexorable monster and permits not his debtor to quit the prison walls.  He is treated as a convicted felon. No trial, no jury is permitted him.

  Many are the points worthy of consideration involved in this uncouth, barbaric, unchristian state of the law; and I earnestly trust you will not allow the occasion to escape your enlightened and benevolent pen, nor fail to inform the public at large of the facts.

Yours, sincerely,

C[harles]. L[ane].

Concord, Mass. January 16, 1843

  The tax is traditionally said to have been paid by Squire Samuel Hoar, the first citizen of the town.[19]  Both Thoreau and Emerson preserved their reaction to Alcott’s bravado.  Thoreau, in a letter to Emerson, wrote:

I suppose they have told you how near Alcott went to jail; but I can add a good anecdote to the rest.  When Staples [the tax collector] came to collect Mrs. Ward’s taxes, my sister Helen asked him what he thought Mr. Alcott meant–what his idea was–and Sam Answered, “I vum believe it was nothing but principle, for I never heerd a man talk honester.”[20]

Emerson, for his part, wrote in his Journal for 1843:

Alcott thought he could find as good grounds for quarrel in the State tax as Socrates did in the edicts of the judges.  Then I said, “Be consistent, and never more put an apple or kernel of corn into your mouth.  Would you feed the Devil?”  Say boldly “I will not any longer belong to this double-faced, equivocating, mixed, jesuitical Universe.”[21]

Mrs. Alcott noted in her own Journal for January 17, 1843 that it was a day of some excitement, “as Mr. Alcott had refused to pay his town tax and they had gone through the form of taking him to jail. After waiting some time to be committed, he was told that it was paid by a friend.  Thus we were spared the affliction of his absence and he the triumph of suffering for his principles.”[22]

  Alcott, in spite of his earlier experience, was still resisting payment of the poll tax in 1846.  In his Journal for May 4th of that year, he noted that Staples was threatening to advertise his land to pay for the tax.  Alcott still rejected the State for forcing itself upon “the freedom of the free-horn and the wisest bearing is to over-hear, let it have its own way, the private person never going out of his way to meet it.  It shall put its hand into a person’s pocket if it will, but I shall not put mine there on its behalf.”[23] Later that same year when Staples arrested Thoreau, Alcott wrote that he had an “earnest talk with Emerson dealing with the civil powers and institutions.”  In Alcott’s words, “E[merson] thought it mean and skulking and in bad taste,” for Thoreau to have refused to pay his taxes.”[24]

  Alcott and Lane were involved in a co-operative farm and reforming venture known as Fruitlands, near Harvard, Massachusetts, during 1844-1845. Among the individuals congregated at the Fruitlands farm was another civil resistant by the name of “Old Jew” Palmer or Joseph Palmer of “No Town.”  In November 1840, both Alcott and Palmer had been present at a gathering of religious reformers, known as the Chardon Street Convention.  At one session, there was an outcry over Palmer’s beard. Alcott rose to inquire, “in the first place, whether in the opinion of the assembly there was anything in the essential nature of a beard which prevented its wearer from becoming a Christian, and secondly, he wished to know if they had really come to discuss beards or rather, as he supposed, certain other fundamental questions.”[25]  Palmer’s claim to fame as a civil resistant was his absolute insistence on wearing a full beard in an age when beards were ridiculed and worn only by Jews.

  Palmer himself had fought in the War of 1812 and he had an eccentric character, but was steadfast and upright and immovable when it came to his principles. “Wearing a beard became a fixed idea with him, and neither the law of the land nor the admonitions of the church could make him falter in his determination to claim freedom of action in this respect.”[26] His nick- name, “Old Jew” Palmer, was no reflection on his religious affiliation, but only showed the bigotry of his persecutors. His farm at “No Town” was very successful and was located on a tract of land which lay outside of Fitchburg and Leominster, Massachusetts. As it belonged to no township, and was untaxed, it came to be known as “No Town.”  “So when he married the widow Tenney, rumors circulated through Fitchburg that the marriage was not legal because he did not publish the banns at the meeting house at “No Town.”  But investigation proved the marriage legal because he had published the banns in his own handwriting on a large piece of paper which he had tacked to the trunk of a fine old pine tree which grew near his home.”[27]

  One day Palmer was attacked by four men, intent to shave off his beard. With the aid of an old jack-knife he carried, Palmer was able to thwart his assailants.  However afterwards he was “arrested for committing an unprovoked assault and ordered by Justice Brigham to pay a fine, which he refused to do, as he claimed to be acting for maintenance of a principle.”  He was thrown into jail and lodged with the debtors where he remained for over a year.  When once asked why he wore his beard, “he said he would tell if any one could tell him why some men would, from 52 to 365 times a year, scrape their face from their nose to their neck.”[28]  He refused to pay his fine, although he was a man of property and he far outstayed his sentence. He refused to leave the jail because he thought he was being cheated on his upkeep, which he had to pay out of his own pocket.  “The sheriff and jailers, tired of having him there, begged him to leave. Even his mother, Margaret Palmer, wrote to him ‘Not to be so set.’ But nothing could move him.  He said they had put him in there and they would have to take him out, as he would not walk out. They finally carried him out in his chair and placed it on the sidewalk.”[29] On his tombstone in the old North Leominster graveyard is said to be the carving of the head of an old man with a flowing beard and underneath it the inscription: “Joseph Palmer, died October 30, 1875–Persecuted for Wearing the Beard.”

  Concerned as Palmer was with his beard, he was also a temperance advocate and an abolitionist.  The abolition of slavery and the cessation of government support to the slave system was of great concern to nearly all the New England resistants.  Particularly annoying to them was the enforcement of the Fugitive Slave Law of 1793 and 1850. When Boston was forced to aid in the return of the fugitive slave, Sims, in 1851, Alcott wondered in his Journal, if, “It would not be a handsome piece of honor and justice to withhold the payment of the assessment for this item of the tax-bill when it shall be claimed by the municipality. . . .I am tempted to try it. Certainly the prison could not be put to better use than the holding of honest men, to the discredit of unrighteous laws.”[30] A few years later, Alcott displayed his courage and fidelity to principle when he risked his life entering the Boston Court House, which was under siege by a mob.  At the time, the fugitive slave, Anthony Burns, was under the protective custody of the government (pending his return to the South) and an unsuccessful attempt was being made to rescue him.[31] Of the personalities mentioned so far, only Thoreau and Emerson were not outright abolitionists.  Nor was Emerson a civil resistant, although he did go so far as to advocate that judges and magistrates interpret the law and Constitution for themselves.  This was also a favorite theme of Thoreau’s.  Emerson concluded “not merely that the Fugitive Slave Law was to be disobeyed by those who felt it to be immoral, but that the official interpreters and executives were bound to make and enforce righteous laws of their own; . . . The first duty of a judge was to read the law in accordance with equity, and if it jarred with equity, to disown the law.”[32]

  The anti-slavery and abolition movements had a long tradition of resistance and opposition to government.  From the beginning of the abolition movement the question of violence was significant.[33]  How was the movement to express its opposition and what course of action were the slaves and abolitionists to follow?  By the late l830’s, the movement in America had answered this question and had split into two distinct factions.  One radical faction, led by William Lloyd Garrison [1805-1879], called for the immediate abolition of slavery, non-participation in government, and non-resistance.  However for many abolitionists, gradual emancipation, office holding and voting, and the use of force in self-defense were legitimate and a question of expediency only. Those led by Garrison, on the other hand, realized that slavery was

not the casual temporary seizure by the Southerners of a few million of Negroes, but the ancient and universal recognition, contrary to the Christian teaching, of the right of coercion on the part of certain people in regard to certain others.  A pretext for recognizing this right has always been that men regarded it as possible to eradicate or diminish evil by brute force, i.e., also by evil.  Having once realized this fallacy, Garrison put forward against slavery neither the suffering of the slaves, nor the cruelty of the slaveholders, nor the social equality of men, but the eternal Christian law of refraining from opposing evil by violence, i.e., of “non-resistance.” Garrison understood that which most advanced among the fighters of slavery did not understand: that the only irrefutable argument against slavery is the denial of the right of any man over the liberty of another under any conditions whatsoever. . . . Garrison understanding that the slavery of the Negroes was only a particular instance of universal coercion, put forward a general principle with which it was impossible not to agree–the principle that under no pretext has any man the right to dominate, i.e., to use coercion over his fellows.  Garrison did not so much insist on the right to be free as he denied the right of any man whatsoever, or any body of men, forcibly to coerce another man in any way.[34]

  These non-resistant abolitionists were the pacifists of the 19th Century peace movement.  Garrison led a splinter group away from the American Peace Society, and in Boston, on September 20, l838, they formed the New England Non-Resistance Society.  The key clause in their constitution was that

The members of this society agree . . . that no man or body of men . . . have a right to take the life of man as a penalty for transgression, that no one who professes to have the spirit of Christ, can consistently sue a man at law for redress of injuries, or thrust any evildoer into prison, or fill any office which he would come under obligation to execute penal enactments–or take part in military service–or acknowledge allegiance to any human government–or justify any man in fighting in defense of property, liberty, life or religion; that he cannot engage in or countenance any plot to revolutionize or change by physical violence any government however corrupt or oppressive.[35]

  The term “non-resistance” which was chosen to identify Garrison and his followers was derived from Christ’s injunction to individuals not to resist evil.[36]  In 1835, when threatened by a Boston mob, Garrison had proclaimed his fidelity to this ideal: “I will perish sooner than raise my hand against any man, even in self-defense, and let none of my friends resort to violence for my protection.”[37] Garrison and his followers realized that if a slaveholder once became a non-resistant, he could never again strike a slave, never resort to that law of violence by which a slave was compelled to labor and in which the relation of master and slave originated and by which it must continually be sustained.[38]

  Personal non-violence, however, was only one aspect of Garrisonian non-resistance. Those who deplored Garrison’s view of government, dubbed him and his followers as “no-government” men.  To renounce all manifestations of government, as the Garrisonian non-resistance men did, was to make them quasi-anarchists or “no-government” men.  “Actually the Garrisonian non-resistants resented and disclaimed the name of ‘no-governmentism.’ They insisted that they were striving for and placing themselves under the only true and effective government, the government of God. They maintained that they opposed not government, but human pretensions to govern.”[39]  Thoreau had used the term and had made the distinction that what he called for was not “no-government” but a better government.”[40]  Thoreau recognized the right of self-defense and violent revolution, contrary to the position of the non-resistants.  Thoreau had taken the affirmative position in a debate with Alcott before the Concord Lyceum in January 1841, on the question: “Is it ever proper to offer forcible resistance?”[41] Despite this difference with the non-resistants, Thoreau agreed with their position on non-participation in government.  He invited all public officers and tax collectors to “Resign your office,” and concluded that “When the subject has refused allegiance and the officer has resigned his office, then the revolution is accomplished.”[42] The non-resistant agitation for resignation had little effect, for as late as 1854, Thoreau still doubted if there were a judge in the entire state of Massachusetts who was prepared to resign his office and get his living innocently whenever it was required of him to enforce the Fugitive Slave Law.[43]

  All office holding and voting were proscribed under the non-resistant philosophy. The principle of democratic control of government through majority rule came under attack, too.  Since no group of human beings could rightfully coerce others, it was wrong for the majority of voters to enforce their choices on a minority.  In the Liberator of September 28, 1838, Garrison protested against participation in any government:

As every human government is upheld by physical force and its laws are enforced virtually at the point of the bayonet, we cannot hold any office which imposes upon its incumbent the obligation to compel men to do right on pain of imprisonment or death.  We therefore voluntarily exclude ourselves from every legislative and judicial body and repudiate all human politics, worldly honor, and stations of authority. If we cannot occupy a seat in the legislature, or on the bench, neither can we elect others to act as our substitutes in such capacity.[44]

Henry Clarke Wright, abolitionist, non-resistant, and associate of Garrison, held a similar view:

It is wrong to hold an office in which we must consent to be vested with life-taking or war-making powers or to come under an obligation to use it. . . It is wrong to vote for others to office which it is wrong for us to hold.  We must look to the character of the office itself and not to the candidate or measures he proposes, however good these may be.  To exercise the franchise even to erect the abolition of slavery would be wrong, would be to vote for murder to prevent theft.[45]

Wright based much of his argument on the implied threat of force behind the ballot. He claimed that every vote carried with it the threat of war, of a bullet, if one did not abide by the desires of the majority.  “A bullet is in every ballot; and when the ballot is cast in to the box, the bullet goes in with it.  They are inseparable as the government is now constituted. . . . The ballot box is the first step–the gallows or the battlefield the last; and whosoever takes the first must take the last.  There is no consistent or honest stopping place between them.”[46]

  In spite of their non-participation stance, the non-resistants did not develop a stand against the payment of taxes.  “All the New England non-resistants, from Garrison on down, complied with Caesar’s demands.”[47] Tax-paying was seen as submission to compulsion exerted by the government, much as a non-resistant might submit to a burglar.  Therefore tax-paying, in their eyes, was non-resistance.  Garrison and his followers excused themselves with the argument that since they paid their taxes against their will, they were not guilty of disobedience and stayed within the legal limits in expressing opposition to government. “As for taxes, it is only our voluntary acts for which we are responsible. When did government ever trust tax-paying to the voluntary good will of its subjects?  When it does, non-resistants will refuse to pay.”[41] Only Alcott of the leading abolitionists went so far as to suffer arrest or imprisonment rather than pay his tax.[49]

  Non-resistants such as Garrison and Wright were somewhat perplexed by John Brown’s raid on Harper’s Ferry.  On the one hand, they hated the institution of slavery.  On the other, they rejected the use of violence in any, form to secure any end, however agreeable.  Regardless of their pacifist stance, both sympathized with Brown’s violent effort. Speaking at a protest meeting in Boston, on the day of Brown’s execution, Garrison said:

I am a non-resistant–a believer in the inviolability of human life under all circumstances; I, therefore, in the name of God disarm John Brown and every slave in the South.  But I do not stop there; if I did I should be a monster.  I also disarm in the name of God every slaveholder and tyrant in the world. . . . I am a non-resistant, and I not only desire, but have labored unremittingly to effect the peaceful abolition of slavery . . . yet as a peace man–an “ultra” peace man–I am prepared to say: “Success to every slave insurrection in the South, and in every slave country.”  I do not see how I compromise or stain my peace profession in making that declaration. Whenever there is a contest between the oppressed and the oppressor, . . .God knows that my heart must be with the oppressed and against the oppressor. . . . I thank God when men who believe in the right and duty of wielding carnal weapons are so far advanced that they will take those weapons out of the scale of despotism, and throw them into the scale of freedom.[50]

  Wright wrote a pamphlet shortly after John Brown’s execution entitled, No Rights, No Duties: Or, Slaveholders, As Such, Have No Rights, Slaves As Such Owe No Duties.  An Answer To A Letter From Hon. Henry Wilson, Touching Resistance To Slaveholders Being The Right And Duty Of The Slaves, And Of The People Of The Slaves Of The North.[50]

The thesis he presented was simple.  Slaves have no obligations at all to their masters, who good or bad, deserve no more respect or consideration than a gang of pirates or kidnappers.  Freedom must be won by the slaves themselves in alliance with their sympathizers among white freemen–by all and every means that the latter would feel justified in using against “burglars, incendiaries, and highway robbers” who might threaten them.  “It is the duty of the people and States of the North to invade slaveholding States to free the slaves, and annihilate the power that enslaves them.”  There are but two sides in the conflict to break up these kidnapping, piratical hordes of the South, called States. . . . You must fight for liberty or slavery–for the pirates or their victims.[52]

  In this pamphlet, Wright advocated the revolutionary doctrines practiced by Brown and preached by Thoreau and Lysander Spooner.  Thoreau, in his final years, was heavily influenced by the activities of John Brown, whom he had met.  “At the news of John Brown’s capture, Thoreau was on fire, arguing with his neighbors, giving speeches, and generally supporting the course of action John Brown had chosen.”[53] Thoreau specifically approved of the Harper’s Ferry raid and remarked in his address, “A Plea for Captain John Brown”:

It was his [Brown’s] peculiar doctrine that a man has a perfect right to interfere by force with the slaveholder, in order to rescue the slave. I agree with him.  Those who are continually shocked by slavery have some right to be shocked by the violent death of the slaveholder, but no others.  Such will be more shocked by his life than by his death.  I shall not be forward to think him mistaken in his method who quickest succeeds to liberate the slave.  I speak for the slave when I say that I prefer the philanthropy of Captain Brown to that philanthropy which neither shoots nor liberates me. . . . We preserve the so-called peace of our community by deeds of petty violence everyday.  Look at the policeman’s billy and handcuffs!  Look at the jail! Look at the gallows! . . . I think I know that the mass of my countrymen think that the only righteous use of Sharp’s rifles and revolvers is to fight duels with them when we are insulted by other nations or to hunt Indians or shoot fugitive slaves with them, or the like. I think that for once the Sharp’s rifles and revolvers were employed in a righteous cause.  The tools were in the hands of one who could use them.[54]

      Several days before his execution, Brown was asked what he had in mind when he made his attack on Harper’s Ferry arsenal.  Brown answered: “I knew there were a great many guns there that would be of service to me, and if I could conquer Virginia, the balance of the Southern states could nearly conquer themselves, there being such a large number of slaves in them.”[55]  According to the Chatham Constitution of May 1858, Brown intended no offensive warfare against the South, but only to restore the inherent rights of the Negroes there. “Not revolution, but justice, not aggression but defense.”56

  Had Brown and his men been successful, they would have implemented the designs of Lysander Spooner’s “Plan for the Abolition of Slavery.” This manifesto was printed in the summer of 1858, and included a notice to the “Non-Slaveholders of the South.”  Brown was familiar with Spooner and the two had met in Boston sometime between May 10 and June 2,1859.  At that time, Brown requested that Spooner cease circulation of his broadsides since their further publication might embarrass Brown’s future plans.  After the failure of the raid at Harper’s Ferry, Spooner’s “Plan” was published in a New York newspaper and was described as Gerrit Smith’s blueprint for Brown’s expedition.  In a subsequent suit for libel, Smith (using Spooner as his attorney) settled the case out of court.  The Spooner manifesto offers a highly consistent rationale for Brown’s attack, but Spooner in later correspondence made it very clear that Brown knew nothing of it until after it was printed.[57]  The two men arrived at the same conclusions independently, reasoning from the common premise that one was legitimately entitled to come to the assistance of the slave and forcibly resist the oppression of the slaveholder.

  Spooner’s reasoning was based on the following four principles:

1. That the slaves have a natural right to their liberty.

2. That they have a natural right to compensation (so far as the property of the Slaveholders and their abettors can compensate them) for the wrongs they have suffered.

3. That so long as the government under which they live refuse to give them liberty or compensation they have the right to take it by stratagem or force.

4. That it is the duty of all, who can, to assist them in such an enterprise.[58]

Based on these premises, Spooner urged that all political institutions of the slaveholder be spurned and ignored.  In their place should be established government which recognizes slaveholding as a crime and which grants to the slaves civil actions for damages for the wrongs already committed against them. The slaves should be recognized as the rightful owners of the plantations they had worked, which would be awarded to them for the damages they had already suffered.  The non-slaveholders of the South were also encouraged to form vigilance committees or leagues of freedom, whose duty it should be to see that justice was done to the slaves and that punishment was meted out to the slaveholders. 

  Realizing that some might object to the distribution of the slaveholders’ property to their slaves, Spooner wrote:

Perhaps some may say that this taking of property by the Slaves would be stealing, and should not be encouraged.  The answer is that it would not be stealing, it would be simply taking justice into their own hands and redressing their own wrongs.  The State of Slavery is a state of war.  In this case it is a just war, on the part of the negroes–a war for liberty and a recompense for injuries and necessity justified them in carrying it on by the only means their oppressors have left to them.  In war, the plunder of enemies is as legitimate as the killing of them, and stratagem is as legitimate as open force. The right of the slaves, therefore, in this war, to take property is as clear as their right to take life, and their right to do it secretly is as clear as their right to do it openly.  And as this will probably be their most effective mode of operation for the present, they ought to be taught, encouraged, and assisted to do it to the utmost so long as they are unable to meet their enemies in the open field.  And to call this taking of property, stealing is as false and unjust as it would be to call the taking of life in just war, murder.[59]

Spooner’s reasoning rested on the recognition of the slave’s rightful claim to personal liberty as well as to reparations for having been a slave.  To achieve liberty and compensation required that the slaves escape from their masters and form guerrilla bands, and assemble the means to sustain themselves in war against the slaveholders.  “These bands could do a good work of kidnapping individual slaveholders, holding them as hostages for the good behavior of whites remaining on the plantation, compelling them to execute deeds of emancipation, and conveyances of their property to their slaves.”[60]  If the property of the slaveholder could not be converted to the use of the slaves, then Spooner advised its destruction.  Spooner suggested that the white non-slaveholders of the South abandon their present governments: “Pay not taxes to their government, if you can either resist them or evade them; as witness and juror give no testimony and no verdicts in support of any slaveholding claims.”

  Those whites who voluntarily assisted the slaveholders in keeping their slaves under subjection were the object of special attention by Spooner:

You are one of the main pillars of the Slave System.  You stand ready to do all that vile and inhuman work which must be done by somebody but which the more decent slaveholders will themselves not do. . . . If you are thus indifferent as to whom you serve, we advise you henceforth to serve the slaves instead of their masters.  Turn about and help the robbed to rob their robbers.  The former can afford to pay you better than the latter.  Help them to get possession of the property which is rightfully their due, and they can afford to give you liberal commission.[61]

  Spooner’s position on the right of the slaves to commission assistance based on a sharing of the proceeds of plunder realized from the just wars of the slaves against their masters may have been unique:

If it is right for the Slaves to take the property of their masters, to compensate their wrongs, it is right for you [the non-slaveholders of the South] to help them. . . . It will be perfectly easy for you, by combining with the slaves to put them in possession of the plantations on which they labor, and of all the property upon them.  They could afford to pay you well for doing them such a service.  They could afford to let you share with them in the division of property taken.[62]

  In his “Plan for the Abolition of Slavery” Spooner addressed himself to those Northerners who were willing to come to the aid of the slaves.  Spooner recognized that “when a human being is set upon by a robber, ravisher, murderer, or tyrant of any kind, it is the duty of bystanders to go to his or her rescue by force, if need be.  In general nothing will excuse men in the non-performance of this duty, except the pressure of higher duties (if there be such), inability to afford relief, or too great danger to themselves or others.” Legislation notwithstanding, “it is the duty of the non-slaveholders of this country, in their private capacity as individuals,–without asking the permission or waiting the movements of the government–to go to the rescue of the Slaves from the hands of their oppressors.”[63]

  Private war against the slaveholders of the South was what Spooner advocated. It was John Brown, however, who put Spooner’s reasoning into practice.

[I]n revolutions of this nature, it is necessary that private individuals should take the first step.  The tea must be thrown overboard, the Bastille must he torn down, the first gun must be fired, by private persons, before a new government can be organized or the old one will be forced to adopt the measures which the insurgents have in view.[64]

No one could have been more radical or daring than John Brown in calling for the abolition of slavery.  In 1859, Spooner was still committed to favoring some type of government.  As the Civil War progressed. Spooner continued to spin out the implications of his natural law reasoning. By the late 1860’s he had carried his natural rights theory to its infinitely radical conclusion: individualist anarchism.[65]

  Even prior to the Civil War, Spooner had offered strong theoretical support to disobedience to the State.  He believed that if one is coerced, if one lives under a tyranny, then one is fully justified in resorting to force in return or in disobeying government law.  He maintained that private war was a form of individual self-defense and that force in response to force was always justified.  As part of his theory, Spooner recognized a higher law than State law; that natural justice supersedes State legislation and the results of State jurisprudence. If the Fugitive Slave Law commanded the return of the slaves, then it was wrong because it contradicted natural law, and it must be disobeyed. Eventually Spooner arrived at the conclusion that all (State) legislation was a crime, an absurdity, and a usurpation.

  Both Spooner and Thoreau were “impossible citizens,” who judged the State and all its laws for themselves and acted according to the dictates of their own consciences rather than according to the demands of the State.  It is interesting to note the similarity between the thinking of Spooner and Thoreau.  As contemporaries, Spooner preceded Thoreau in actively opposing the State. Spooner openly challenged the requirements of the Massachusetts legislature concerning admittance to the State Bar in 1833.  In 1844, he had operated a private mail company in contravention of the federal laws imposing a government monopoly on mail delivery.  Spooner relied on a strict construction of the Constitution and a theory of natural rights and natural justice to defend his behavior.  With the same theories he also defended active rebellion against the State and eventually came to deny its authority.  Thoreau went to jail to offer testimony to his convictions.  He supported John Brown’s attempt to free the slaves in Virginia. He advocated peaceful revolution, whereby the masses withdrew their support from the State. Thoreau was one of the first to draw attention to the duty of civil disobedience.  He placed primary emphasis on loyalty to one’s conscience and natural law rather than to the State.  As “impossible citizens,” libertarians and civil resistants today would be hard pressed to match the daring, the determination, and the quality of resistance that we have found in 19th Century New England.

NOTES

1. For a critical analysis of the State see Benjamin Tucker, Instead of a Book (New York: B. Tucker, Publisher, 1893), especially his essay “The Relation of the State to the Individual.” Also see Murray Rothbard. For a New Liberty (New York: Macmillan Co., 1973).

2. Mulford Sibley and Phillip Jacob, Conscription of Conscience (Ithaca: Cornell University Press, 1952), pp. 1-2.

3. Raymond Adams, “Thoreau’s Sources for Resistance to Civil Government,” 42 Studies in Philology (1945), p. 646.

4. John C. Broderick, “Thoreau, Alcott, and the Poll Tax,” 53 Studies in Philology (1956), p. 614.  Also see Henry Canby, Thoreau, (Boston: Houghton, Mifflin and Co., 1939), pp. 233-239 and 472-473.

5. Henry David Thoreau, Walden and “On The Duly of Civil Disobedience” (New York: New American Library, 1960), p. 118.

6. Ibid, p. 236.

7. Walter Harding, The Days of Henry Thoreau (New York: Alfred Knopf, 1966), pp. 199-200. Also see Thoreau. op. cit., p. 233.

8. Thoreau, op. cit., p. 240.

9. Ibid., p. 225.

10 Ibid., pp. 224-225.

11. Ibid., p. 229.

12. Ibid., p. 228.

13. Ibid., p.229.

14. Harding, op. cit., p. 207.

15. Odell Shepard, Pedlar’s Progress: The Life of Branson Alcott (Boston: Little Brown and Co., 1937), p. 345 and 353.

16. Ralph L. Rusk, ed., The Letters of Ralph Waldo Emerson (New York: Columbia University Press, 1939), III, 230.

17. Thoreau, op. cit., p. 229

18. The Liberator (January 27, 1843). p. 4.

19. F. B. Sanborn, Bronson Alcott at Alcott House. England and Fruitlands, New England (Cedar Rapids: The Torch Press, 1908), p. 47.

20. Ibid., p. 45.

21. Ibid., p. 49.

22. Odell Shepard, ed., The Journals of Bronson Alcott (Boston: Little Brown and Co., 1938), p. 151.

23. Ibid., p. 179.

24. Ibid., p. 183.

25. Shepard, op. cit., p. 282.

26. Clara Endicott Sears, Bronson Alcott’s Fruitlands (Boston: Houghton Mifflin and Co., 1915), p. 53.

27. Ibid., p. 55.

28. Ibid., p. 60.

29. Ibid., p. 66.

30. Shepard, ed., op. cit., p. 246.

31. Gilbert Seldes, The Stammering Century (New York: John Day and Co., 1928). p. 220.

32. James Elliot Cabot, A Memoir of Ralph Waldo Emerson (Boston: Houghton Mifflin and Co., 1887), II, 597-98.

33. John Demos, “The Anti-Slavery Movement and the Problem of Violent ‘Means’,” 37 New England Quarterly (1964). p. 50l.

34. Fanny Garrison Villard, William Lloyd Garrison on Non-Resistance (New York: Nation Press, 1924), pp. 48-49.

35. Demos, op. cit., p. 510.

36. Lewis Perry, Radical Abolitionism-Anarchy and the Government of God in Antislavery Thought (Ithaca: Cornell University Press, 1973), p. 57.

37. Villard, op. cit., p. xi.

38. Demos, op. cit., p. 512.

39. Perry, loc. cit.

40. Thoreau, op. cit., p. 223.

41. Adams, op. cit., pp. 647-649.

42. Thoreau, op. cit., p. 231.

43. Henry David Thoreau, The Writings of Henry David Thoreau, “Slavery in Massachusetts” (New York: AMS Press, 1968), IV, 401.

44. Adams, loc. cit.

45. Peter Brock, Pacifism in the United States (Princeton: Princeton University Press, 1968), p. 599.

46. Ibid., p. 600.

47. Brock, loc. cit.

48. Broderick, op. cit., p. 617.

49. Ibid., p. 617. Brock also comments on p. 600 that the anti-slavery movement did not “produce its Thoreaus to spend their night of lonely protest in the local jail or to endure the prolonged distraints suffered earlier by the Quakers during the Revolutionary War.”

50. Brock, op. cit., p. 683.

51. Henry C. Wright, No Rights, No Duties (Boston: Printed for the Author, 1860).

52. Brock, op. cit., p. 684.

53. Gilman M. Ostrander, “Emerson, Thoreau, and John Brown.” 53 Studies in Philology (1956). pp. 723-724.

54. Writings of Henry David Thoreau, IV, 433-434.

55. Jules Abels, Man on Fire: John Brown and the Cause of Liberty (New York: Macmillan Co., 1971), p. 242.

56. James Redpath, The Public Life of John Brown (Boston: Thayer and Eldridge, 1860). p. 233.

57. Charles Shively. ed., The Collected Works of Lysander Spooner, Vol IV–Anti-Slavery Writings (Weston, Mass.: M & S Press, 1971). See pp. 4-7 of the “Introduction” to “A Plan for the Abolition of Slavery” and “To the Non-Slaveholders of the South.”

58. Spooner, “To the Non-Slaveholders of the South,” column 1.

59. Ibid,, column 1.

60. Ibid., column 2. On this paint Spooner adds that no objection could be made to the fact that deeds of emancipation and conveyances of property were made under duress. “[l]n as much as such contracts would be nothing more than justice; and men may rightfully be coerced to do justice,” they could not be contested.

61. Ibid., column 3.

62. Ibid., column 3.

63. Spooner, “A Plan for the Abolition of Slavery,” column 1.

64. Ibid., column 3.

65. Murray Rothbard, “Introduction” to Lysander Spooner’s Natural Law of the Science of Justice, The Libertarian Forum (September 1974), p. 1.

by Carl Watner

The Levellers were a group of politically active soldiers and civilians whose organized efforts during the English Civil War (1642-1649) were based on their beliefs in individual liberty.  John Lilburne was their popularly recognized leader, but it is in the works of his associate, Richard Overton, that we find the most consistent expression of their incipient libertarianism.  In this essay, we will make first a preliminary survey of the libertarian aspects of the Leveller movement, and then a more detailed examination of the pamphleteering career of Richard Overton.

  From our vantage point in the twentieth century, not all Leveller thinking is consonant with modern libertarianism, but it is probably a fair statement to say that the Leveller organization was the first modern political movement to embrace the principles of individual liberty to any great extent.  One modern historian of the movement, H. N. Brailsford, has distinguished three basic ideas in the web of Leveller thought. First, the Levellers were quite concerned with the realm of each person’s individuality or self-propriety, as they termed it.  Although they never explicitly used the term self-ownership, self-propriety had the same connotation: the right of each and every person to control his or her own body and soul free of coercive molestation. During a period of bitter religious strife, the Levellers stressed religious freedom–the right of each person to worship (or not to worship) as he or she chose. They also emphasized the right of the individual to decide whether or not to bear arms; in short, the right to be free of conscription. Secondly, the Levellers affirmed the individual’s right of association with other like-minded people, whether it be a voluntary church or a group of people printing their own books and pamphlets without government censorship. This also included the right of combination for political ends, which at that time meant the writing and distribution of petitions and all the meetings and publicity that this entailed.  Their third basic idea involved equality of all before the law, both of rich and poor, noble and simple; and, particularly and most importantly, the equality of all in the sphere of political power.  The Levellers advocated the abolition of all class privileges and government grants of monopoly, the simplification of legal procedure, and a more widespread form of manhood suffrage.  They also called for an end to tithes, excise duties, customs duties, imprisonment for debt, and conscription.[1]

  The Levellers were not socialists or left-wing supporters of Cromwell, but rather individualist.[2]  Following the Anabaptist tradition, they disowned coercion of all innocent people and affirmed a position of broad religious tolerance.[3]  They were the first political movement outside of the Netherlands to stand for unqualified toleration, including acceptance of Jews and Catholics in England.  Nor did they wish to charge the state with the responsibility for enforcing personal morality. No Leveller petition ever included among the reforms demanded the repression of swearing and drinking, or the more strict observance of the Sabbath, or the banishment of fiddlers from the taverns.  The Levellers made the final breach with theocracy when they modified their appeal for religious toleration to a plea for the complete divorce between religion and the state. Theirs is the distinction of being the first movement in the modern world to call for a secular republic.[4]

  Although they were accused of “setting up an utopian anarchy of the promiscuous multitude,” they were not outright anarchist.[5]  Towards the end of their existence as an organized political party, Walwyn, one of their four recognized leaders, wrote:

That we are for Government and against Popular Confusion, we conceive all our actions declare, when rightly considered, our aim having been all along to reduce it as near as might be to perfection, and certainly we know very well that depravity and corruption of man’s heart is such that there could be no living without it; and that though Tyranny is excessively bad, yet of the two extremes, Confusion is the worst: Tis somewhat a strange consequence to infer that because we have labored so earnestly for a good Government, therefore we would have none at all; Because we would have the dead and exorbitant Branches pruned, and better sciens grafted, therefore we would pluck the Tree up by the roots.[6]

  Yet they recognized that no man could be bound, in a political sense, but by his own consent.[7]  They admitted of no sovereignty anywhere except in the individual.  The Levellers “seriously accepted the possibility of any man refusing obedience to commands incompatible with his idea of reason or justice.  This may appear anarchic, but to them it was the ultimate guarantee of liberty.”[8]

  In the context of the English Civil War, the Levellers believed that resistance to King Charles I and his party was not resistance to “magistracy”, as government was called, but rather resistance to tyranny.  Overton wrote that tyranny could never be true magistracy and that every man was duty bound to endeavor to bring about the extirpation and removal of the usurpers and oppressors from the seat of government.[9] Therefore the Levellers held that resistance and rebellion against an existing tyrannical government was lawful and right. Although the Levellers were originally aligned with Cromwell and the Independents, they soon realized that Cromwell, with Parliament under his control, was merely another usurper.  Thus, if tyranny was resistible in a king, then they concluded that it was also resistible in Parliament.[10]

  The Leveller’s general devotion to English common law and the traditional British liberties is best exemplified in Lilburne’s attitude towards the trial and execution of Charles I.  Lilburne opposed trying the king by a special court.  He had no objection in principle to the trial of the king, or to his execution if he were found guilty. However, according to Lilburne’s view, neither the Long Parliament nor the Rump was entitled to try the king or send him to trial.  He wished to postpone all action against the king until some sort of constitutional settlement could be made.  To Lilburne, this meant the acceptance by the people at large of the Agreement of the People.  Any action which the Rump took against the king would be arbitrary and an abuse of the power of the sword.  The High Court of Justice, which was appointed to try the king, was an extraordinary tribunal, an invention of a political emergency and packed with partisans.  The vague charge of treason against the king was open to the fatal criticism that it was based on no known law.  Instead, Lilburne urged that the king was entitled to a trial by jury in the regular courts of the land and subject to the judgment of twelve jurors, like every other Englishman. The charge for which he should stand was that he had counseled and commissioned murder (on the battlefield).[11]  Despite their enmity towards the king, Lilburne and most of the other Levellers were objective enough in their thinking to realize that if arbitrary treatment could be meted out to the king, contrary to known forms of law, then they, too, might be subject to such capricious treatment.  Overton, alone among the Leveller leaders, approved without reservation the manner and execution of judging the king; he called it the finest piece of justice that was ever had in England.

  Although much Leveller support originated in the Army, they were always cautious lest the military power of the Army supersede civilian legal authority. Of course, their fears were borne out.  In their eyes, an English soldier was first an English citizen, with all the concomitant rights and duties of a citizen; and then, only secondarily, were they “volunteer” soldiers who had taken up arms to defend the parliamentary cause. In their estimation, they could not be sent overseas without their own consent.  Therefore Cromwell’s attempt to subdue Ireland, together with the chronic shortage and lateness of pay for the soldiers, generated much discontent in the Army, manifesting itself in a libertarian opposition to imperialism and militarism.  The Levellers saw the Catholic Irish as their fellow men, who were as much entitled to claim their own liberty as were the Levellers themselves.  Their code of ethics bridged foreign borders.  In general, the Levellers rated the sovereignty of the individual’s conscience high above the commands of military generals or the jurisdiction of the state.  The Levellers established the moral foundation for opposition to Cromwellian imperialism by recognizing the individual Irishman’s claim to his own land.  They asked if it was not as unjust to take away the laws and liberties of the Irishmen as it was to deprive an Englishman of his.  Leveller anti-militarism and anti-imperialism was climaxed by the death of a young Leveller soldier, who was cashiered, court-martialed, and shot by Cromwell’s orders. Refusing to wear the usual bandage over his eyes, Robert Lockyer faced, without fear, the firing squad which shot him to death.  Before he fell he told those firing the shots that their obedience to superior orders did not acquit them of murder.[12]  The Leveller defense of the right of the Irish to keep their own fields and practice their own faith is the earliest, and not the least distinguished, example in English history of the struggle of a popular party against imperialism.”[13]

  In Leveller opinion, Cromwell’s imperialism was just another instance of his and Parliament’s failure to govern by law after having succeeded Charles I to power.  Lilburne and Overton saw the English nation as having therefore been reduced to the original law of nature, and they reasoned that individual citizens no longer owed any obedience or allegiance to these tyrannical politicians.  The Levellers proposed that a new political settlement be made in which all Englishmen would give their consent to the Agreement of the People.  The Agreement was a written, “constitutional” document prepared and revised several times by the Leveller leaders.  It called for the abolition of the Long Parliament and the selection of a new Parliament based on more equitable and democratic rules.  The Agreement itself was not to be passed upon by Parliament, since it was meant to be superior to Parliament.  The Levellers hoped that the document would be unanimously adopted by members of the Army and then be signed by the people at large at the first general election.  It was clearly the forerunner of our modern constitutions and plainly illustrates the Leveller’s premise that society could be constituted on an entirely voluntary basis.[14]

  The adoption by Leveller thinkers of a “state of nature” theory was quite evident in the Putney Debates, which took place between the Levellers and the Army grandees in 1647.  The debates illustrate the radical nature of Leveller thought. In regard to the Army’s past promises, the Levellers theorized that nothing was binding if it conflicted with reason, justice, and the safety of the people.[15]  When Henry Ireton, Cromwell’s son-in-law, claimed that the Levellers would destroy all property, they confidently appealed to the law of nature to demonstrate that the right to property is guaranteed by the law of nature, and not, as Ireton maintained, merely by positive government laws.[16] Clarke, one of the Leveller debaters, argued that the Law of nature is the basis of all constitutions.  “Yet really properties are the foundations of constitutions, and not constitutions of property. For if so be there were no constitutions, yet the law of nature does give a principle for every man to have a property of what he has or may have which is not another man’s.  This natural right of property is the ground of mine and thine.”[17]  Furthermore, it is the law of nature that teaches the individual his rights and their attendant duties: the right and duty of self-preservation, and the natural limits of obedience, and the right and duty of resistance to tyrannical rulers. It teaches him what are the ends of government; and it inculcates the basic principles of social life–the principles of natural justice and equity which dictate the political equality of all men within the state and which are based upon the maxim “to do unto others as you would have them do unto you.”[18]

  The Levellers, especially Lilburne, were sensitive about their name and its connotations, and they protested repeatedly that they had no intention of levelling men’s estates (i.e., forcefully distributing property from the rich to the poor).  There is no question, however, that it was their intention to end every form of political and legal privilege, privilege which served to enrich members of the governing class.[19] The basic rift in society, for the Levellers, was not the division between wage earner and capitalist, but between the rich who profited from government monopolies and privileges and the poor and middle class who suffered from such favoritism.  In effect, the Levellers saw a conflict between the producers and the politicians in society.  Within a few months after the Putney Debates, the Levellers were espousing a remarkably class-conscious theory of the State, in which the Independent leaders were seen as part of a conspiracy of the rich and powerful to keep down the poorer and more industrious people.[20]

  Lilburne was one of the firmest defenders of a positive social order based on property.[21] He was not opposed to the taking of interest on money loans nor for the renting of land.  He claimed that the Levellers were the truest and most constant asserters of liberty and property (“which are quite opposite to community and levelling”).[22] In one of his later books, Lilburne states his strongest disavowal of levelling.  He not only denies his party’s intention to level property, but also condemns any who do aim to level property.  In Lilburne’s opinion and judgment,

this Conceit of Levelling of property and Magistracy is so ridiculous and foolish an opinion, as no man of brains, reason, or ingenuity, can be imagined such a sot as to maintain such a principle, because it would, if practiced destroy not only any industry in the world, but raze the very foundation of generation, and of subsistence or being of one man by another.  For as industry and valour by which the societies of mankind are maintained and preserved, who will take the pains for that which when he hath gotten is not his own, but must be equally shared in, by every lazy, simple, dronish sot? or who will fight for that, wherein he hath no other interest, but such as must be subject to the will and pleasure of another, yea of every coward and base low spirited fellow, that in his sitting still must share in common with a valiant man in all his brave and noble achievement? The ancient encouragement to men that were to defend their Country was this: that they were to hazard their persons for that which was their own, to wit, their own wives, their own children, their own Estates.  And this, give me leave to say, and that in truth, that those men in England, that are most branded with the name of Levellers, are of all in that Nation, most free from any design of Levelling, in the sense we have spoken of.[23]

  No Leveller leader ever called for the compulsory redistribution of property, but Walwyn did go so far as to advocate a voluntary sort of communism, if it were first agreed upon unanimously by those participating. In Walwyn’s opinion the attempt to induce the levelling of men’s estates was most injurious, “unless there did precede an universal assent thereunto from all and every one of the People.”  He further pointed out:

The Community amongst the primitive Christians, was Voluntary, not Coercive; they brought their goods and laid them at the Apostles feet, they were not enjoined to bring them, it was the effect of their Charity. . . .

  We [the Levellers] profess therefore that we never had it in our thoughts to Level men’s estates, it being the utmost of our aim that the Commonwealth be reduced to such a pass that every man may with as much security as may he enjoy his propriety.[25]

Though each Leveller leader had his own opinion on the subject, their commonly subscribed statements explicitly demanded that Parliament be legally bound not to level men’s estates, destroy propriety, or make all things common.[25] They all insisted that property was a natural right of the individual. It was on this concept of natural right that they based their case, not only for individual property, but also for government by consent and for civil and religious liberties. Their fundamental position was that every man is naturally the proprietor of his own person.[26]

  This fundamental position is most strikingly set forth in some of Richard Overton’s pamphlets, which were written as Leveller propaganda. Both in his An Arrow Against All Tyrants (October 10, 1646) and in his Appeal (July 1647) he endorses a principled and far-reaching theory of natural rights from which he derives all civil and political rights.  The two opening paragraphs of the Arrow deserve being quoted in full:

To every individual in nature is given an individual property by nature, not to he invaded or usurped by any: for every one as he is himself, so he hath a self propriety, else could he not be himself, and on this no second may presume to deprive any of, without manifest violation and affront to the very principles of nature, and of the Rules of equity and justice between man and man; mine and thine cannot he, except this be; No man hath power over my rights and liberties, and I over no man’s; I may he but an Individual, enjoy my self, and my self propriety, and may write myself no more than my self, or presume any further; if I do, I am an encroacher and an invader upon an other man’s Right, to which I have no Right.  For by natural birth, all men are equally alike and born to like propriety, liberty, and freedom, and as we are delivered of God by the hand of nature into this world, every one with a natural, innate freedom and propriety (as it were writ in the table of every man’s heart, never to be obliterated) even so are we to live, every one equally and alike to enjoy his Birth-right and privilege; even all whereof God by nature hath made him free.

  And this by nature every one desires aims at, and requires for no man naturally would be befooled of his liberty by his neighbor’s craft, or enslaved by his neighbor’s might, for it is nature’s instinct to preserve it self, from all things hurtful and obnoxious, and this in nature is granted of all to be most reasonable, equal and just, not to be rooted out of the kind, even of equal duration with the creature: And from this fountain or root, all just human powers take their original; not immediately from God (as Kings usually plead their prerogative) but mediately by the hand of nature, as from the represented to the representors; for originally, God hath implanted them in the creature, and from the creature those powers immediately proceed; and no further: and no more may be communicated than stands for the better being weal, or safety thereof: and this is man’s prerogative and no further, so much and no more may be given or received thereof: even so much as is conducent to a better being, more safety and freedom, and no more; he that gives more sins against his own flesh; and he that takes more, is a Thief and Robber to his kind: Every man by nature being a King, Priest and Prophet in his own natural circuit and compass, whereof no second may partake, but by deputation, commission, and free consent from him, whose natural right and freedom it is.[27]

In the Appeal Overton makes an even more positive assertion of the reason for natural right and self-propriety:

It is a firm Law and radical principle in Nature, engraven in the tables of the heart by the finger of God in creation for every living moving thing, wherein there is a breath of life to defend, preserve, award, and deliver it self from all things hurtful, destructive and obnoxious thereto to the utmost of its power: Therefore from hence is conveyed to all men in general, and to every man in particular, an undoubted principle of reason, by all rational and just ways and means possibly he may, to save, defend and deliver himself from all oppression, violence and cruelty whatsoever, and (in duty to his own safety and being) to leave no just expedient unattempted for his delivery therefrom: and this is rational and just; to deny it is to overturn the law of nature, yea, and of Religion too; for the contrary lets in nothing but self murder, violence and cruelty.[28]

  Here is Overton’s ultimate justification for himself and the Leveller movement. In tones that presage those of John Locke of the 1680’s and Thomas Paine of the 1770’s, Overton marshals the dogmas of natural liberty in support of popular government by consent, toleration, and freedom of the press.[29] Here is the “proprietorial quality of the Levellers’ individualism.” Every man and woman, being an individual person, is entitled to self-propriety. “What makes a man human is his freedom from other men.” Man’s essence is his freedom and that can only mean self-control over one’s own person and capacities.  However, self-proprietorship did not mean passive enjoyment.  “The Levellers demanded this manifold property in one’s own person as a prerequisite of active use and enjoyment of one’s capacities.  Men were created to improve, and enjoy by improving, their capacities.  Their propriety in themselves excluded all others, but did not exclude their duty to their creator and to themselves.”[30]

  The little known of Overton’s career is that it was short and hectic. The best of his writings were written while he was in jail.  He probably spent some part of his early life in Holland, where he learned the printing trade and imbibed the Anabaptist tradition of dissent. By the mid-1640’s he had made the acquaintance of John Lilburne and joined with him in attacking the established church.  In 1643, Overton wrote an anonymous tract entitled Man’s Mortality, setting forth his sectarian views on religion.  He was repeatedly denounced as a heretic, but kept writing his various satirical and anti-clerical pamphlets which he printed on his own press.  In 1646, Overton became concerned over the imprisonment of Lilburne and participated in drafting A Remonstrance of Many Thousand Citizens, and Other Free-Born People of England, to Their Own House of Commons. Occasioned Through the Illegal and Barbarous Imprisonment of that Famous and Worthy Sufferer for His Country’s Freedoms, Lieutenant Col. John Lilburne (July 7, 16461.[31]

  The Remonstrance opens with a very clear statement of the Leveller theory of government– one based on consent of the governed and on a delegation of powers from the citizenry to their elected representatives.

We are well assured, yet cannot forget, that the cause of our choosing you to be Parliament-men, was to deliver us from all kind of Bondage, and to preserve the Common-wealth in Peace and Happiness: For effecting whereof, we possessed you with the same Power that was in our selves, to have done the same; For we might justly have done it our selves without you, if we had thought it convenient. . . .

  But ye are to remember, this was only of us but a Power of trust, (which is ever revokable, and cannot be otherwise,) and to be employed to no other end, than our own well-being. . . . We are your Principals, and you our Agents; it is a Truth which you cannot but acknowledge; For if you or any other shall assume, or exercise any Power, that is not derived from our Trust and choice thereunto, that Power is no less than usurpation and Oppression, from which we expect to be freed, in whomsoever we find it; it being altogether inconsistent with the nature of just Freedom, which ye also very well understand.[32]

After outlining the historical failure of former kings to maintain the people’s liberties, the Remonstrance declares that men of the present age will no longer bear the tyranny of Charles I and that the members of Parliament, who

were chosen to work our deliverance, and to Estate us in natural and just liberty agreeable to Reason and common equity; for whatever our Fore-fathers were; or whatever they did or suffered, or were enforced to yield unto; we are men of the present age, and ought to be absolutely free from all kinds of exorbitances and molestations or Arbitrary Power, and you we choose to free us from all without exception or limitation, . . .and we were full of confidence that ye also would have dealt impartially on our behalf, and made us the most absolute free People in the world.[33]

  The Remonstrance also illustrates the Leveller attitude towards religious toleration.  Although it admits that the House of Commons might propose what form of religion they deem best and might offer such to the public, the authors of Remonstrance firmly declare that no Englishman can be compelled to embrace a state religion.

Whereas truly we are well assured, neither you, nor none else, can have any into Power at all to conclude the People in matters that concern the Worship of God, for therein every one of us ought to be fully assured in our own minds, and to be sure to Worship him according to our Consciences.

  Ye may propose what Form ye conceive best, and most available for Information and well-being of the Nation, and may persuade, and invite thereunto, but compell, ye cannot justly; for ye have no Power from Us so to do, nor could you have; for we could not confer a Power that was not in our selves, there being none of Us, that can without wilfull sin bind our selves to Worship God after any other way, than what (to a tittle,) in our own particular understandings, we approve to be just.[34]

  The Remonstrance ends with a list of grievances that the Levellers have against the House of Commons, by whom they believe that they have been betrayed.  A call is made for an “agreement of the people,” since the members of the House of Commons know that the “Laws of this Nation are unworthy a Free-People, and deserve from first to last, to be considered, and seriously debated, and reduced to an agreement with common equity, and right reason, which ought to be the Form and Life of every Government.”[35]  The Levellers were particularly grieved about the practice of conscription, and in probably one of the earliest attacks on that practice they wrote:

We entreat you to consider what difference there is, between binding a man to an Oar, as a Gally-slave in Turkey or Algeria, and Pressing of men to serve in your War; to surprise a man on the sudden, force him from his Calling, where he lived comfortably, from a good trade; from his dear Parents, Wife or Children, against inclination, disposition to fight for a Cause he understands not, and in Company of such, as he has no comfort to be with; for Pay, that will scarce give him sustenance; and if he live, to return to a lost trade, or beggary, or not much better: If any Tyranny or cruelty exceed this; it must be worse than that of a Turkish Gally-slave.[36]

The Levellers also complained about the imposition of customs duties on imports and claimed that their collection was most prejudicial to the nation. There were so many customs officers that “it is a very slavery to have any thing to do with them.”  The Levellers lamented that “Truly it is a sad thing, but too true, a plain quiet-minded man in any place in England, is just like a harmless sheep in a Thicket, can hardly move or stir, but he shall be stretched, and loose his wool.”[37]

  Overton continued to express his support for Lilburne, and about August 1, 1646 he published another one of his anonymous pamphlets, An Alarum to the House of Lords.  In it Overton rebelliously warned the Lords that “if timely cautions will not avail with you, you must expect to be bridled, for we are resolved upon our natural Rights and Freedoms, and to be enslaved to none, how magnificent so ever, with rotten titles of honor.”[38]  Lilburne had been imprisoned partly because of his written attacks on the vested interests of the day.  According to Overton, Lilburne’s writings 

have been dangerous to all corrupt Interests in the Commonwealth; as

First, to all Arbitrary Power, In King, or Lords, or any other.

Secondly, To the Power and delusion of the Clergy, and their oppression of Conscionable Religious People.

Thirdly, to the most prejudicial ways of our Legal Trials in all Courts, and to the burdensome Society of Lawyers; that live upon the impoverishing of the industrious and laborious People; things which he proveth to have been forced upon this nation by Conquest, and continued against Reason, and the weal of the People.

Fourthly, To all Monopolists, and engrossers of trade: as the Merchant Adventurers, and the like: all which he hath (as others), proved to the Ruin of the People: and because of this his love to Truth, Justice, and his Country; and his opening of these things; and his opposition thereof to the uttermost of his Power: all these mighty Parties, put all their policy and strength in one, utterly to destroy him.

  But he hath a good cause: and all good people (that desire not to 1ive by the Oppression of others,) on his side: and that your Lordships will find; for all these things will be laid open at the Sun, and every man will see wherefore it is you call his Books scandalous, seditious, dangerous Pamphlets, and why the Clergy, the Judges, Lawyers, and Monopolists, are his deadly adversaries, even because he deals plainly between you all; and the people, whom you labor by all means jointly to keep in bondage and Vassalage to your wills.[39]

  The House of Lords reacted against Overton’s Alarum by issuing orders for his immediate arrest, which took place on August 11, 1646, less than two weeks after the appearance of the pamphlet.  Overton was held as a prisoner of the Lords and eventually lodged in Newgate prison. It was not until September 16, 1647, after more than a year in prison, that he was freed by order of the House of Commons.  While imprisoned, Overton wrote and published some of his best pamphlet attacks on the Lords and Parliament.

  A Defiance, the first of his “prison” pamphlets, appeared on September 9, 1646, less than a month after his initial arrest. In his confrontations with the House of Lords, Overton took exactly the same stand as had Lilburne.  Overton simply denied their authority to question him, as he believed that, as a commoner, he was not at all subject to their jurisdiction.

I bid defiance to their injustice, usurpation and tyranny, and scorn even the least connivance, glimpse, jot, or tittle of their favor: let them do as much against me by the Rule of Equity, Reason, and Justice for my Testimony and Protestation against them in this thing as possibly they can, and I shall be content and rest: for Nihil quod est contra rationem est licitum; Nothing which is against reason is lawful, it is a sure maxim in law, for Reason is the life of Law.  But if they transgress, and go beyond the hounds of rationality, justice, and equity, I shall to the utmost of my power make opposition and contestation to the last gasp of vital breath; and I will not beg their favor, nor lie at their feet for mercy; let me have justice, or let me perish. I’ll not sell my birth-right for a mess of pottage, for Justice is my natural right, my heirdom, my inheritance by lineal descent from the loins of Adam, and so to all the sons of men as their proper right without respect of persons.  The crooked course of Favor, greatness, or the like, is not the proper channel of Justice; it is pure, and individual, equally and alike proper unto all, descending and running in that pure line streaming and issuing out unto all, though grievously corrupted, vitiated, and adulterated from generation to generation.[40]

  One of the great issues between Lilburne and Overton, and the House of Lords, was the question of self-incrimination.  Literally, these were the men who made the U. S. Constitution’s Fifth Amendment privilege against self-incrimination a reality.  According to Overton, the law of England bound no man to betray himself, as the abolition of the Star Chamber proceedings had confirmed, and his refusal to answer the interrogatories of the Lords, he asserted, was not evidence of his guilt, but only of his obstinacy in adhering to his legal rights.[41]

  An Arrow, Overton’s next pamphlet, was issued from prison on October 12, 1646.  As quoted earlier, the opening passages from An Arrow set forth Overton’s theory of natural self-propriety.  Overton then goes on to discuss representation and “magisterial,” or governmental, powers. He points out that a holder of governmental office is not immune to breaking either the common or natural law, and that government office must not be used as a shield or excuse for law-breaking. Any government officer, whether king or member of parliament, may be rightfully resisted if he has not complied with the law.  In Overton’s circumstances, this meant that neither King nor Lords could legally direct his apprehension or imprisonment until he had first been tried and convicted by a jury of his peers.  In a case such as his, any commoner might rightfully resist the agents or ministers of government, much as they would resist the unlawful advances of trespassers, thieves, burglars, felons, and murderers.  “No legal conviction being made, the person invaded and assaulted by such open force of Arms may lawfully arm themselves, fortify their Houses (which are their Castles in the judgment of the Law) against them, yea disarm, beat, wound, repress and kill them in their just necessary defense of their own persons, houses, goods, wives, and families, and not be guilty of the least offense.”[42]

  Still imprisoned in 1647, Overton issued yet another of his “prison” pamphlets on February 10th of that year.  He was still bound to state his case to the world and bring attention to his plight and that of his wife and family.  Overton’s intransigence had not waned even though he had been imprisoned since August 1646.  Around November 3, he had been brought before a Committee of the House of Commons, at their order, for an inquiry into the reason for his incarceration by the House of Lords.  He had hoped for justice at the Committee’s hands and, in this new pamphlet, entitled Commoners Complaint, had resolved

in myself, that as in heart I defied all injustice, cruelty, tyranny, and oppression, all arbitrary usurpation and usurpers whatsoever, so in person (come life, come death, come what come would) I would not be so treacherous to my own self, to my wife and children, and especially to this Nation (the Land of my Nativity) in general, as personally to yield my active submission of any limb that was mine (either in substance or in show).[43]

In effect his attitude was that, if his jailers did not have a valid warrant for remanding him back to Newgate prison, then he would not “set forth one leg before another” for them and they should have to carry him if he was to be returned to jail.

  Much of the Commoners Complaint is devoted to explaining Overton’s reasons for his course of resistance.  He wanted his reasons to be known, lest his actions be misunderstood by the public. He begins his defense by pointing out:

All State-Deprivation of life, limb, goods, liberty or freedom, either is, or should be, all and every particle thereof, the just execution of the Law executing: For in Equity, the Action executing is indivisible from the Law, and only and precisely proper thereto, and not at all to the party executed: yea, though a man legally guilty of death should be condemned by the same legal Authority (or rather by persons therein entrusted) to cut his own throat; yet were he in equity not bound thereunto, but in so doing should be guilty of his own blood. And the Law of our Land makes no man his own Executioner. . . .and nature itself teaches that no man shall be his own Butcher or Executioner, for in so doing, he should sin against his own flesh, which is a thing most unnatural and inhumane.

  But my rejection of carrying my own Body to the Gaol, was no other but the refusal to be my own Executioner therein, for though it were not of that degree of cruelty and inhumanity to my own flesh, as to cut my own throat; yet was it of the same nature and kind.  And therefore if the one must be condemned as unjust, illegal and unnatural, so must the other in its kind, so that as I was not bound, with my hands to cut my own throat, so with my feet, I was not bound to carry myself to prison.”[44]

  Overton then discourses on the relationship of Equity and Law and is not afraid to place the reason and equity of the law above Law itself:

Though the Letter of the Law should enjoin its Condemnants to be their own executioners, yet were that by its own equity condemned, nulled, and made void, for the letter must be subject to the equity: and look how much the letter transgressed the equity, even so much it is unequal, and is of no validity or force, for the Law taken from its original reason and end is made a shell without a kernel, a shadow without a substance, a Carcass without life: for the equity and reason thereof is that which gives it a legal being and life, and makes it authoritative and binding, if this be not granted, injustice may be a Law, tyranny may be a Law, lust, will, pride, covetousness, and what not? may be Laws; for if equity be not the bounder of the Law, over the corrupt nature of man, all will fall into confusion, and one man will devour another.”[45]

Overton did not want it said of him that he “went to prison”; rather it must be said of him that “he was carried there.”  Though his actions and resistance had no precedent in law he was prepared to argue the rationality of his behavior.  “Reason” was his only justification and “reason has no precedent; for reason is the fountain of all just precedents.”[46]  He was prepared to live or die to uphold his principles:

For as I am a Freeman by Birth, so I am resolved to live and die, both in heart word and deed, in substance and in show, maugre the Arbitrary malice of the House of Lords: yea if ought else I can devise to show my actual enmity and defiance against their arbitrary power, I’ll do it, though it cost the life of me, and mine, and therefore I care not who lets them know.[47]

Cementing his attitude with a bit of humor, Overton claimed that his legs were not subject to the jurisdiction of the Lords. Being free of their jurisdiction “from the Crown of my head to the Sole of my feet,” he knew no reason why he should “foot it for them,” or “dance” to their arbitrary warrants, except that they might “play to the good old tune of the Law of the Land.”[48]

  During his appearance before the Committee of the House of Commons, Overton engaged in a debate on which House of Parliament had jurisdiction over him.  It was his contention that, if the House of Commons had authority to recall him from jail and question him in committee, then he must be subject to their jurisdiction and not the jurisdiction of the House of Lords.  Therefore his jailers from Newgate had no authority to return him to prison, especially since the Commons’ Committee had not issued a warrant for his return.  Overton was playing a dangerous game, but he even went so far as to offer to return with his jailers, if he were entreated to do so by the Committee.  Though offering the Committee more in law than he had to, he was baiting them. They refused to urge him back to prison; but had they done so, Overton could have claimed that he was thereby subject to their jurisdiction. Nevertheless, Overton reveals that he was prepared to defy the Committee, even had it requested his voluntary return to Newgate:

For do you think that 1 am such a fool to part with my liberty, for nothing. Sir, our liberties have been bought at a dearer rate, then to be trifled and slighted away. . . .

  But now Sir, I would not have you think from these demands of mine, that I would be subject to an arbitrary power more in you then in the other, for truly in those demands there was tacitly couched a supposition of that which I knew could not be granted. . . .but and if I had been imprisoned thereon, after I had given their Lordships that Sob, you should have heard from me with a witness; for I cannot suffer oppression and be silent.[49]

  At any rate, Overton’s jailers dragged him away from the Committee and carried him by boat toward Newgate.  When he was landed, they pleaded with him to walk up a long hill under his own power.

I was not minded to be their DRUDGE, or to make use of my feet to carry the rest of my body to the Gaol, therefore I let them hang as if they had been none of my own, or like a couple of farthin Candles dangling at my knees, and after they had dragged me in that admireable posture a while, the one took me very reverently by the head, and the other as reverently by the feet, as if he had intended to have done Homage to his Holiness’ great Toe, and so they carried me: but truly Sir, I laughed at the conceit in my sleeve. [Eventually they wearied and soon carried me] just as if I had been a dead Dog, they dragged and trailed my body upon the stones, and without all reverence to my cloth, drew me through the dirt and mire.[50]

Upon his arrival at Newgate prison, they placed him in the lower room, or the Lodge as it was called.  Somehow Overton still managed to have a copy of Sir Edward Coke’s Institutes on the Magna Charta in his possession. Mr. Briscoe, the jailer, spying the book, demanded to have it, which Overton promptly refused.  Overton was mobbed and eventually the book was wrestled from him.  “And thus by an assault they got the great Charter of Englands Liberties and Freedoms,” and thus being “stripped of my armour of proof, the Charter of my legal Rights, Freedoms, and Liberties, after the aforesaid barbarous manner, they hurried me up into the common Gaol.”[51]  There, although he was placed in a pair of leg irons, he purposefully refused to either answer the call of the warden, or commission anyone to knock off the leg irons.  Finally the warden had Overton carried to his office, where Overton preached to the warden.  Overton told the warden that he

scorned to crouch or debase his Spirits to the lawless cruelty of any merciless tyrants or Gaolers whatsoever: they may devour my Carcass, and make that bend and break with their cruelty, but I trust in God, that in heart and action to the utmost of my power in the pursuance of justice and truth, 1 shall bid defiance to the last gasp of breath to all their oppressions and tyrannies whatsoever.”[52]

  During the course of his imprisonment, around January 6, 1647, Overton’s wife and his brother had been arrested and committed to Maiden Lane prison by order of the House of Lords.  The following day another raid was perpetrated on his dwelling, when agents of the Lords were searching for Overton’s sister and her husband.  Fortunately, the two escaped along with Overton’s three children.  Rightfully he laments, “so, Father, Mother, Children, and All, being driven out of House and home, the Doors were shut up; and I, and mine, exposed to the utter ruin and confusion of those insulting, domineering, merciless, Usurpers and Tyrants, The House of Lords.”[53]  Overton then relates how his wife was commanded by the City Marshall to be moved from Maiden Lane prison to Bridewell, “that common Center and receptacle of bauds, whores, and strumpets, more fit for their wanton retrograde Ladies, than for one, who never yet could be taxed of immodesty, either in countenance, gesture, words, or action.”[54]

  Overton’s wife refused to budge and told the Marshall that she would not stir except upon order or warrant of the House of Commons.  The Marshall flew into a fit of angry rage and called for a couple of porters to move her.  When they came, Overton relates, the porters told the Marshall “that they would not meddle with a woman that was with child, and had a young sucking infant in her arms, lest in doing so they might do that today which they might answer for tomorrow.” [55]  A cartman similarly refused to haul Mary Overton to Bridewell. Finally the Marshall gathered his sheriffs and deputies and they broke down the door in order to violently lay hands on her.  They “dragged her down the stairs, and in that infamous barbarous manner, drew her headlong upon the stones in all the dirt and the mire of the streets, with the poor Infant still crying and mourning in her Arms, whose life they spared not to hazard by that inhumane barbarous usage.”[56] Overton was concerned not only for her life and the brutal treatment she had received, but thought that her reputation would be ruined forever by being jailed in Bridewell.

  In concluding the Commoners Complaint, Overton stressed that the House of Commons should redress the situation of all those arbitrarily imprisoned by the House of Lords.  If the Lords may rule by prerogative,

then farewell all liberty and property, all Laws; justice, and equity; and if it must be so, I pray you bear us no longer in suspense and expection of redress, hut forthwith let our Doom be proclaimed to the whole world, that the Commons of England may know what to trust to; that we may loose our labor no longer in petitioning, appealing, complaining, and seeking for relief at your hands. . . .for my part I care not though you and all men forsake me, so long as I know the Lord liveth, who will once judge every man according to his deeds, whether good or evil, and then I am sure I shall have righteous judgment. . . .

  I scorn their mercy, and dare them to do their worse: let them find Prisons, Dungeons, Irons, Halters, etc., and I’ll find Carcass, Neck, and Heels, for one in contempt to their usurped jurisdiction; for resolved I am to break before I bend to their oppressions.”

  Sometime in 1647, Mary Overton wrote her own petition to the House of Commons, addressed To the Right Honorable, the Knights, Citizens, and Burgesses, the Parliament of England, Assembled at Westminster, the Humble Appeal and Petition of Mary Overton, Prisoner in Bridewell.  In it she related the story of her own arrest and the tribulations of herself, her husband, and family at the hands of the House of Lords. Her petition is full of legal citations, unlike the writings of her husband.  Overton had apparently been misinformed, for Mary states that Thomas Overton and also her own brother were taken in the raid upon her home.

  Mary Overton’s main plea is that justice be dispensed towards her and towards her husband and the rest of their family.

In case by Law it shall be found that your Petitioners husband, herself and her brother have done ought worthy of death, or other exemplary punishment, that they may forthwith receive their just execution accordingly. But and if your Petitioner, her husband and brother be legally found not guilty of any transgression of the known Laws of the Land, that then by an Order from this House they may forthwith be discharged from under the vassallage and bondage of those insulting and tyrannizing lords; and that for the future you would be pleased to protect them and the rest of their National Brethren the free Commoners of England from the like Prerogative-insolencies, cruelties and oppression: and that in case this House by the Law of the Land shall find your Petitioners husband, her self and her brother wronged and abused, that you would according to justice give them full and ample reparations for their long and unjust imprisonment, like as you have done of late to sundry of your own Members your Petitioners Fellow Commoners; that you will not any longer deny them the benefit of the Law, which is their birthright and inheritance, and let them not be deprived of that which every monthly Sessions you do allow to thieves and murderers, to have a free and speedy trial.[58]

  Meanwhile, Richard Overton was still in Newgate, and on July 8, 1647 he published yet another “prison” pamphlet.  His Commoners Complaint had been directed to the House of Commons and had no appreciable effect. Having obviously lost some confidence in the ability of the House of Commons to secure his release, Overton took the unprecedented step of appealing directly to the English populace and Army.  Realizing that he might he condemned for this bold appeal, Overton again used an argument which he had presented in his Commoners Complaint: “That Reason has no precedent, for Reason is the fountain of all just precedents. . . . therefore where that is, there is a sufficient and justifiable precedent.”

And if this Principle must be granted of, and obeyed by all, as by no rational man can be denied, then. . .[my] Appeal in this nature if grounded upon right Reason is justifiable and warranted, even by That which gives an equitable Authority, life and being to all just Laws, precedents and forms of Government whatsoever, for Reason is their very life and spirit, whereby they are all made lawful and warrantable. . . ; which is the highest kind of Justification and Authority for human Actions that can be; . . .right Reason (the fountain of all justice and mercy to the creature) shall and will endure for ever; it is that by which in all our Actions we must stand or fall, be justified or condemned; for neither Morality nor Divinity among Men can or may transgress the limits of right reason, for whatsoever is unreasonable cannot be justly termed Moral or Divine, and right reason is only commensurable and discernable by the rule of merciful Justice and just mercy.”[59]

  Overton then justifies his own Appeal by referring to “right reason.” First he points out that it is a law of nature and religion that people may use all just and expedient means to free themselves from oppression. His Appeal is such a means and is therefore legitimate. Secondly, “necessity” justified his course of action in the Appeal.  Parliament had taken up arms against the King out of “necessity” and had proclaimed it “no resistance of Magistracy to side with the just principles and law of nature.”[60] Therefore if any from the House of Commons condemned his Appeal, they were implicitly condemning their own rebellion against the King. Lastly, referring to his arguments of self-propriety, which appeared in An Arrow, Overton argues that in appealing to the commoners and soldiers he is tracing “sovereignty” to its actual source:

All authority is fundamentally seated in the office, and but ministerially in the persons; therefore, the persons in their Ministrations degenerating from safety to tyranny, their Authority cease and is only to be found in the fundamental original, rise and situation thereof, which is the people, the body represented; for though it ceaseth from the hands of the betrusted, yet it does not, neither can it cease from its being, for Kings, Parliaments, and etc. may fall from it, but it endure forever, for were this not admitted, there could be no lawful redress in extremity. . . : it always is either in the hands of the Betrusted of the Betrusters, while the Betrusted are dischargers of their trust, it remains in their hands, but no sooner the Betrusted betray and forfeit their Trust, but (as all things else in dissolution) it returns from where it came, even to the hands of the Trusters: for all just human powers are betrusted, conferred, and conveyed by joint and common consent, for to every individual in nature, is given an individual propriety by nature, not to be invaded or usurped by any, (as in my Arrow Against Tyranny is proved and discovered more at large) for every one as he is himself has a self propriety, else could not be himself, and on this no second may presume without consent; and by natural birth, all men are equal and alike born to like propriety and freedom, every man by natural instinct aims at his own safety and weal.[61]

   After discussing the imprisonment of his family and his own encounter with the House of Lords, Overton analyzes the war against the King. Most important to his argument is the demonstration that Parliament has shown that “resistance to tyranny” is an admissible principle of action, even though tyrants be clothed in “magisterial” robes.

Therefore it is in vain for our Members in Parliament to think that we will justify or tolerate the same [tyranny] among them, which we will not endure in the King, to pluck off the Garments of Royalty from oppression and tyranny, and to dress up the same in Parliament Robes: No, no, that was ever and is far from our hearts, and we shall justify or allow the same no more in the one than in the other, for to allow it in the one is to justify it in the other, for it is equally unequal in both, and in it self resistable wheresoever it is found, for were it not resistable, all defensive war whatsoever were unlawful. . . . [W]e are bound to the utmost of our power to arm and fortify ourselves for our just and necessary defense, and by force of Arms to repel and beat back the invading assaulting enemy, whether it be an enemy for the confusion and extirpation of our persons, or for destruction and ruin of our Laws, our freedoms and liberties, for bondage and slavery are not inferior to death, but rather to be more avoided, condemned, and resisted than present destruction, by how much the more that kind of destruction is more languishing than present, and in pursuance of the just and necessary defensive Opposition we may lawfully, and are in Conscience bound to destroy, kill, and slay the otherwise irresistible enemy for our own preservation and safety whether in our lives, our Laws or our liberties: And against the justice of this defensive principle no degrees, Orders or titles among men can or may prevail, all degrees, Orders and titles, all Laws, Customs and manners among men must be subject to give place and yield thereunto, and it unto none.[62]

Thus he concludes that those resorting to a “defensive resistance” do not become traitors and rebels against true government.

For tyranny is no Magistracy, therefore the resistance of Tyrants is no resistance of Magistrates, except it be of such so nominally; but really and essentially monsters and pests of humanity; . . .for Magistracy has its proper compass and confines, and the actors and actions in that compass are thereby rendered Magisterial actors and actions to be obeyed by all, and resisted by none; and so such as are resisters thereof, are no Resisters of Magistracy, Authority and Government; but the resistance of the excursions or actions out of that compass and capacity, is no resistance of Magistracy or Magistrates, for it is not their persons which makes their Ministrations Magisterial, but their Ministerial Magistrations which makes their persons Magisterial persons: for Magistracy is not inherent or consistent in the person, but in the office; their persons must run a parallel line in their Ministration with their office, or else their formal deputation or Commissions will not entitle them to the true definition of Magistrates; for the office is but accidentally consistent in the form or external Commission, radically and essentially in the due Ministration.[63]

  Countering the claims of religious pacifists, Overton recognizes that all people are entitled to maintain their natural human “being” and subsistence upon earth by resorting to self-defense, if necessary.  Pacifism he argues would result in the utter confusion of humanity and the depopulation of nations.  Nevertheless, he agrees that religious doctrine must not be promulgated by the sword, although he sees no contradiction in a religious person embracing the principle of self-defense when coercively attacked: “And if the Magistrate should so far extend his compulsive force under pretense of religion and conscience, to the destruction of our human subsistence or being, we may upon the points of your human subsistence and being, lawfully make our defensive resistance, for in itself it is defendable against all opposition or destruction from whence or from whomsoever it shall be.”[64]  Overton concludes his Appeal by urging all the commoners and soldiers to embrace his cause. If they will not, he writes, then “I have reckoned my cost, and can in this cause for my Country upon honest and just privileges, lay down my life, as freely and willingly, as my most malicious enemies can make it a sacrifice to their fury: Do therefore, as it seems good in your own eyes; I have discharged my conscience, and what I have done, I have done; and commit the issue thereof unto God.”[65]

  Overton was finally released from prison in September or November 1647, after another inquiry by the House of Commons. Although Leveller agitation continued throughout 1648, we do not find Overton back in print until March 1649 with a pamphlet entitled The Hunting of the Foxes, which set forth Leveller grievances against the Army.[66]  In the meantime, the second phase of the Civil War had commenced and the Scottish Army had been defeated by Cromwell.  King Charles I had been seized by the Parliamentary Army in December 1648 and executed on January 30, 1649.  Although the King’s trial and execution were the result of “a fanatical minority of Independents,” “ideologically the trial of Charles and the abolition of kingship were the product of Leveller propaganda.”[67] The second Agreement of the People been published by the Levellers in December 1648, and by mid-1649, they were becoming increasingly disenchanted with Cromwell and the Independents. The Army was moving towards a dictatorship; censorship and military law had already been imposed, and Cromwell had refused to adopt the second Agreement of the People.[68]

  It was no wonder, then, that in 1649 Lilburne and other Levellers had composed a new address to Parliament, titled The Second Part of Englands New Chains Discovered (March 24, 1649).  It was a direct and bitter attack on the Army and the Independents, “provocative of mutiny and disorder.”  One historian has described what ensued as follows:

The Independents had no choice but to resolve the dispute by suppression. On March 24 the Rump declared the pamphlet contained “much false, scandalous, and reproachful Matter.” Further, it was “highly seditious. . .destructive to the present Government. . .tended to Divison and Mutiny in the Army.”  The authors they declared “guilty of High Treason, and should be proceeded against as Traitors.”

  Accordingly, on March 28, between four and six in the morning, troops of horse and foot surrounded the homes of Lilburne, Walwyn, Prince, and Overton, roused them roughly from their beds, carried them off to Whitehall, there to await questioning by the Council of State.  The story of their arrest and subsequent examination is told vividly by Lilburne, Prince, and Overton, in The Picture of the Council of State, published only six days later.  The dramatic situation was ideal for propagandistic effect, and the Levellers promptly identified the principle of political justice with their own sufferings at the hands of the Grandees.  Each of the four men refused to answer interrogatories that would have incriminated himself . . . , Lilburne and Overton . . . denying the legality of both the Rump and the Council of State. Lilburne was permitted to make a long speech pointing out that it was not in the power of Parliament to execute the laws, denying the power of the Council to imprison him in a military prison, and threatening to burn the very military prison they should consign him to.  Looking fixedly at Cromwell, Lilburne said, “I must be plain with you, I have not found so much Honor, Honesty, Justice, or Conscience, in any of the principal Officers of the Army, as to trust my life under their protection, or think it can be safe under their immediate fingers.” After Overton, Prince, and Walwyn had been questioned, Lilburne put his ear to the door of the chamber: “I . . . heard Lieutenant General Cromwell (I am sure of it) very loud, thumping his fist up the Council Table, till it rang again, and heard him speak in these very words, or to this effect; I tell you Sir, you have no other Way to deal with these men, but to break them in pieces;and thumping upon the Council Table again, he said Sir, let me tell you; yea, and bring all the guilt of blood and treasure shed and spent in this Kingdom upon your heads and shoulders; and frustrate and make void all that work, that with so many years industry, toil and pains you have done, and so render you to all rational men in the world, as the most contemptible generation of silly, low spirited men in the earth.” [69]

Such was the strength of the Leveller movement, that Cromwell had to resort to outright repression in order to maintain his position.

  In his narrative in The Council of State, Overton describes the rough and abusive treatment that he and his friends received during the raid upon his living quarters.  Always ready to assert his legal rights, he demanded to see the warrant for his arrest and to see the search warrant authorizing invasion of his quarters. When he was finally brought before the Council of State, he again demanded the production of their authority to detain him for questioning. He unequivocally refused to answer their questions:

Gentlemen, it is well known, and that unto your selves, that in cases criminal, as now you pretend against me, it is against the fundamental Laws of this Commonwealth to proceed against any man by way of Interrogatories against himself, as you do against me. . . .So that for my part, Gentlemen, I do utterly refuse to make answer unto any thing in relation to my own person, or any man or men under heaven; but do humbly desire, that if you intend by way of Charge to proceed to any Trial of me, that it may be (as before I desired at your hands) by the known established Laws of England, in some ordinary Court of Justice appointed for such cases (extraordinary ways never being used, but abominated, where ordinary ways may be had) and I shall freely submit to what can be legally made good against me.[70]

  Besides claiming a privilege against self-incrimination, Overton also pointed out that he was innocent until proven guilty and that ex post facto laws could have no bearing on his particular case.

I am guilty of nothing, not of this paper, entitled The Second Part of Englands New Chains, in case I had never so much an hand in it, till it be legally proved: for the Law looks upon no man to be guilty of any crime, till by law he be convicted; so that I cannot esteem myself guilty of any thlng, till by the Law you have made the same good against me.

  And further Sir, I desire you to take notice, that I cannot be guilty of the transgression of any Law, before that Law be in being; it is impossible to offend that which is not: Where there is no Law there is no Transgression: Now, those Votes on which you proceed against me are but of yesterdays being; so that, had I an hand in that Book whereof you accuse me, provided it were before those Votes, you cannot render me guilty by those Votes.[71]

  Even though he was facing the possibility of a second imprisonment, Overton was as defiant and belligerent as ever, declaring that he could never coexist with oppression:

It is well known, and I think to some here [before the Council of State], that I have ever been an opposer of oppression and tyranny. . . . I suppose no man can accuse me, but that I have opposed Tyranny where-ever I have found it: It is all one to me under what name, or title soever oppression be exercised, whether under the name of King, Parliament, Council of State, under the name of this, or that, or any thing else; For tyranny and oppression is tyranny and oppression to me where-ever I find it, and where-ever I find it I shall oppose it, without respect of persons.

  I know I am mortal and finite, and by the course of nature my days must have a period, how soon I know not; and the most you can do, it is but to proceed to life; and for my part, I had rather die in the just vindication of the poor oppressed people of this Commonwealth, then to die in my bed; and the sooner it is, the welcomer, I care not if it were at this instant, for I value not what you can do unto me.[72]

Despite their eloquent pleas for freedom, the Leveller leaders were kept in prison.

  It was probably next to impossible to stifle the outbursts of such men as Lilburne and Overton, and from prison they soon published another declaration, A Manifestation, (April 14, 1649), which, although apparently written in the main by Walwyn, reflected the ideas of all four prisoners.  The Levellers were concerned to demonstrate that they were not to he associated with the communal land diggers and that they did not preach chaotic anarchy, although they were firmly opposed to the military government of Cromwell. Walwyn therefore attempted to defend the Levellers’ course of action during the Civil War.  The Levellers had engaged in political activity out of self-defense, but they were concerned to show that their own politics would not end up in an oppressive government, were they to succeed.  This of course is a danger inherent in all radical political parties: that they can end up replacing one set of oppressions with another.

And whereas it is urged, That if we were in power, we would bear ourselves as Tyrannically as others have done: We confess indeed, that the experimental defections of so many men as have succeeded in Authority, and the exceeding difference we have hitherto found in the same men in a low, and in an exalted condition, makes us even mistrust our own hearts, and hardly believe our own Resolutions of the contrary.  And therefore we have proposed such an Establishment, as supposing men to be too flexible and yielding to worldly Temptations, they should not yet have a means or opportunity either to injure particulars, or prejudice the Public, without extreme hazard, and apparent danger to themselves.  Besides, to the objection we have further to say, That we aim not at power in our selves, our Principles and Desires being in no measure of self-concernment: nor do we rely for obtaining the same upon strength, or a forcible obstruction; but solely upon that inbred and persuasive power that is all good and just things, to make their own way in the hearts of men, and so to procure their own Establishments.”[73]

  A Manifestation ends on a conciliatory note by referring to the revision of the Agreement of the People, which the Leveller leaders were preparing. The Agreement would allow the world to see what the Leveller movement was about, and if accepted would lead to peace.

And thus the world may clearly see what we are, and what we aim at: We are altogether ignorant, and do from our hearts abominate all designs and contrivances of dangerous consequence which we are said (but God knows, untruly) to be laboring withall.  Peace and Freedom is our Design; by War we were never gainers, nor ever wish to be; and under bondage we have been hitherto sufferers. We desire, however, that what is past may be forgotten, provided the Commonwealth may have amends made it for the time to come. And this from our soul we desire.”[74]

  On May 1, 1649, Lilburne, Walwyn, Prince, and Overton, still prisoners in the Tower of London, published their revision of An Agreement of the Free People of England.  Tendered as a Peace Offering to This Distressed Nation.  The Agreement was composed of thirty articles and incorporated all the Leveller demands as taken from their most important petition.[75]  In the Agreement they display a profound distrust of authoritarian power but do place a great amount of confidence in the judgment of the voting public. In the Agreement are such libertarian planks as: 

XI. We do not empower them [the representatives in Parliament] to impress or constrain any person to serve in war by Sea or Land every mans Conscience being to he satisfied in the justness of that cause wherein he hazards his own life, or may destroy an others.

XVI. We agree and Declare That it shall not be in the power of any representative to punish or cause to be punished, any person or persons for refusing to answer questions against themselves in Criminal cases.

XVIII. That it shall not be in their power to continue or make any Laws to abridge or to hinder any person or persons from trading or merchandizing in to any place beyond the Seas, where any of this Nation are free to Trade.

XIX. That it shall not be in their power to continue Excise or Customs upon any sort of Food or any other Goods, Wares, or Commodities. . . .

XX. That it shall not be in their power to make or continue any Law, whereby men’s real or personal estates, or any part thereof, shall be exempted from payment of their debts; or to imprison any person for debt of any nature, it being both unchristian in itself, and no advantage to the Creditors, and both a reproach and a prejudice to the Commonwealth.

XXI. That it shall not be in their power to make or continue any Law, for taking away any mans life, except for murder, or other like heineous offenses destructive to human Society, or for endeavoring by force to destroy this Agreement, but shall use their uttermost endeavors to appoint punishments equal to offenses: that so men’s Lives, Limbs, Liberties, and estates, may not be liable to be taken away upon trivial or slight occasions as they have been; . . . and in all other capital offenses recompense shall be made to the parties damnified, as well out of the estate of the Malefactor, as by loss of life, according to the conscience of his jury.[76]

  Overton was kept in the Tower until November 1649, and during that time he published two pamphlets in support of the Agreement of the People.  The first was titled Overton’s Defiance of the Act of Pardon (July 2, 1649) and the second was The Baiting of the Bull of Bashan (July 9, 1649).  In the first Overton makes it clear that the Agreement is the summation and goal of his political activities.  In his estimation, no sacrifice would be too great, so long as it was adopted:

My Friends, of this therefore be you confident, that my silence has not proceeded from any degeneration or instability in me to that Righteous Cause (summed up in our draft of an Agreement of the people, subscribed, published, and offered by us four as a peace offering, to the consideration of the people of England, May 1, 1649) that Paper (or rather the contents or premises thereof) is the price, glory, and end of my endurance, neither life, liberty or reparation or any thing that man or earth affords is valuable with me in comparison thereof, that is my all in all; I desire neither life, liberty or reparation (seeing God has called me to the work) but as it may stand in subordination to that Agreement; while I have life or breath it shall never want a truer asserter to uphold and promote the same to the utmost of my power, let the hazard and danger to myself be what it will . . . . for that Agreement, I will have, or else I’ll die at their feet; I’ll have no accord or peace with them at all till they have yielded that: whether at liberty or in prison, it is all one to me.”[77]

It was Overton’s belief that without the Agreement there would be no security for either person or property in the Commonwealth.  He makes it plain that he does not trust Cromwell and the army grandees. (“I’ll trust them no further than I can fling their great Bull of Bashan by the tail.”)[78] He exhorts those Levellers still at liberty to promote the Agreement and not to expect that their four imprisoned leaders can “remove mountains”; at least not without their help.

  Apparently the Leveller prisoners had been offered a pardon, on terms which Overton found quite unacceptable.  In the Defiance of the Act of Pardon Overton also laments the defection of former comrades from the ranks of the Levellers into the arms of Cromwell’s faction.  Referring to himself as “little brisk Levelling Dick in the Tower,” Overton makes it clear to both his followers and opponents that he will not dishonor himself or the cause by renouncing the Agreement or changing factions:

Therefore know all men by these presents, that I, Richard Overton . . .out of a tender regard that I have to the Liberties of my Country, and credit of that honorable cause, do hereby defy, renounce, abhor, detest and scorn that Act of Pardon as to my Liberty thereby, and do rather choose continuance and increase of Bonds, than conditional submission or assent thereunto in the least: . . . I am so far from submission to their corrupt and wicked interest, that I will first eat the flesh off from my bones; first rot and perish in Gaol, before I will so far how to them, as in the least to woo them or any of their creatures, either directly or indirectly in person or by proxy for my liberty: my cause is not bad, but with patience I can suffer till I be justly delivered without blemish or speck of infamy to the same; the honor of it, I honor above my life or liberty.

  In the Defiance, Overton had used some rather strong and vulgar language, and in The Baiting of the Bull he continues on with its use, incorporating it into some pointed and satirical metaphors. Although the Agreement was not meeting with much popular acceptance, Overton believed that undue gravity and melancholy in the Levellers’ cause was wrong.  It was his opinion that “modest mirth tempered with due gravity makes the best composition.”[79] And he later adds, that “one pennyworth of the Agreement of the People, with a little good resolution taken morning and evening, will work out this corruption, cleanse, and purify the blood.”[80] His earlier pamphlet, he says, seemed but “as music to the house of Mourning” and did not seem to rouse the Levellers to action. He points out a common characteristic of political movements, that “When there is anything of venture or hazard, while tis in the Embryo, who is not then but busy and forward [promoting it]? but when tis put upon the personal test for execution, Oh then one has bought a piece of ground, and must be excused; another a yoke of Oxen, and he must go see them; and a third has married a wife.”[81]  Yet he believes that if the ordinary Leveller saw a person threatened with danger, be would not hesitate to venture his own life in order to save the other.  Why then are the Levellers unwilling to aid their own political cause?  As Overton points out, there is much more at risk in the triumph of their cause than in the rescue of a single person:

Our cause is of a more transcendent value, and we suffer for it; and can you see it destroyed in us, and we for it, and not be as natural as in a private relation? the lives, liberties and freedoms of all is contained in it?  If your neighbors Ox or his Ass were in a ditch, it is a shame to pass by and not to help; and behold, here’s all in the ditch, then, why venture you not your time, your labors, your moneys, etc. to redeem our all, our Cause, the nation, and us in it, and with it.”[82]

  Overton was eventually released from the Tower in November 1649, when Lilburne was placed on trial.  Although acquitted, Lilburne and the Leveller movement had reached their zenith and were literally spent.  Little record is left of the activities of Overton after he was freed. There is record of his involvement in spying and fomenting rebellion against the Protectorate, and in 1659 he was again in prison. In 1663, he was ordered arrested for printing material contrary to the government of Charles II.[83]

  Overton’s pamphlets certainly offer a unique autobiographical assessment and perspective of the Leveller movement.  Richard Overton, in both word and deed, was a fearless man, true to his ideals of justice, without regard for personal consequence.  The words of another Leveller, contemporary to him, perhaps best epitomize Overton’s spirit:

Had they [the Levellers] counted the cost, the difficulty when they had taken up arms against the king? They were bound, . . . not by difficulties but by justice.  Though death lay ahead, and the sea on three sides, they should unflinchingly carry on.  Whatever great leap the Agreement called for, [they] should have no fear: “When I leap I shall take so much of God with me, and so much of just and right, as I shall jump sure.”[84]

NOTES

1. H. N. Brailsford, The Levellers and the English Revolution (London: Cresset Press, 1961). p. 418. There is a wide disparity in secondary, historical interpretations of the Leveller movement. Probably the two most individualistic interpretations of the Levellers are this book by Brailsford and one by C. B. Macpherson, Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962).

2. Howard Shaw, The Levellers (London: Longmans Green and Co., 1968). p. 102. See also Brailsford, The Levellers and the English Revolution, pp. 549-550.

3. Brailsford, The Levellers and the English Revolution, pp. 379-380.

4. Ibid., p. 550.

5. D. B. Robertson, The Religious Foundations of Leveller Democracy (New York: Kings Crown Press, 1951). p. 74.

6. Richard Overton, A Manifestation, in Don M. Wolfe, ed., Leveller Manifestoes of the Puritan Revolution (New York: Thomas Nelson and Sons, 1944), p. 391. This is one of several collections of Leveller documents which are indispensable to the study of the general movement. Others include: William Haller and Godfrey Davies, eds., The Leveller Tracts, 1647-1653 (New York: Columbia University Press, 1944); William Haller, ed.,Tracts on Liberty in the Puritan Revolution, 1638-1647, 3 vols. (New York: Columbia University Press, 1934); and A. S. P. Woodhouse, ed.,Puritanism and Liberty Being the Army Debates, 1647-9, Clarke Manuscripts (Chicago: University of Chicago Press, 1951).

7. Robertson, Religious Foundations, p. 73.

8. Perez Zagorin, A History of Political Thought in The English Revolution (London: Routledge and Kegan Paul, l954), p. 41.

9. See Robertson, Religious Foundations, pp. 76-81.

10. Ibid., p. 77.

11. Brailsford, The Levellers and the English Revolution, pp. 457-58.

12. Ibid., pp. 498-506.

13. Ibid., p. 384.

14. Ibid., p. 264.

15. Woodhouse, “Introduction,” Puritanism and Liberty, p. 28.

16. Ibid., “lntroduction,” p. 91.

17. Ibid., “Putney Debates,” p.75.

18. Ibid., “Introduction,” p. 91.

19. Brailsford, The Levellers and the English Revolution, p. 315.

20. Macpherson, Political Theory, p. 152.

21. Brian Manning, The English People and the English Revolution, 1640-1649 (London: Hennemann Publishers, 1976). p. 296.

22. Ibid., p. 295.

23. Quoted in Robertson, The Religious Foundations, p. 87.

24. Overton, A Manifestation, pp. 390-91.

25. Macpherson, Politica1 Theory, p. 138.

26. See Macpherson’s discussion in ibid., pp. 137-57.

27. Overton, An Arrow Against All Tyrants (1646). pp. 3-4. Copy from the Huntington Library collection. I would like to thank Carey Bliss, Curator of Rare Books and Manuscripts at the Henry E. Huntington Library, San Marino, Calif., who was most helpful in supplying copies of documents in the collection.  I also obtained a copy of An Arrow from Duke University, Durham, N.C.  It has also been reprinted by the Rota Press of the University of Exeter, England (ISBN 0-90461745X).

The same quotation also appears in Macpherson, Political Theory, pp. 140-41.

28. Overton, An Appeal from the Degenerate Representative Body, in Wolfe, Leveller Manifestoes, pp. 162-63.  The same quotation appears in Macpherson, Politica1 Theory, p. 141.

29. Haller, Tracts on Liberty, 1:114.

30. Macpherson, Political Theory, p. 142.

31. Overton, A Remonstrance of Many Thousand Citizens, in Wolfe, Leveller Manifestoes, pp. 113-30.

32. Ibid., p. 113.

33. Ibid., pp. 114-15.

34. Ibid., p. 122.

35. Ibid., p. 124.

36. Ibid., p. 125.

37. Ibid., pp. 126-27.

38. Overton, An Alarum to the House of Lords (1646), p. 6. Copy from the Huntington Library collection.

39. Ibid., pp. 6-7.

40. Overton, A Dance Against All Arbitrary Usurpations (l646). p. 6. From the Huntington Library collection.  The title of this essay . . .”Come What, Come Will,” is taken from A Defiance, p. 13.

41. See Leonard Levy, The Origins of the Fifth Amendment (New York: Oxford University Press, 1968), pp. 293-300.

42. Overton, An Arrow, p. 9.

43. Overton, Commoners Complaint (1647), p. 3.  Copy from the Huntington Library collection.

44. Ibid., pp. 4-5.

45. Ibid., p. 6.

46. Ibid.

47. Ibid., pp. 9-10.

48. Ibid., p. 10.

49. Ibid., pp. 12-13.

50. Ibid., p. 13.

51. Ibid., p. 14.

52. Ibid., pp. 15-16.

53. Ibid., p. 16.

54. Ibid., p. 17.

55. Ibid., p. 18.

56. Ibid., p. 19.

57. Ibid., pp. 22-23.

58. Mary Overton, The Humble Appeal and Petition of Mary Overton (1647), p. 12. Copy from Temple University, Philadelphia.

59. Richard Overton. An Appeal, p. 158.

60. Ibid., p. 161

61. Ibid., p. 162.

62. Ibid., pp. 176-78

63. Ibid., p. 180.

64. Ibid., p. 182.

65. Ibid., p. 188.

66. Overton, The Hunting of the Foxes, in Wolfe, Leveller Manifestoes, pp. 355-83

67. Ibid., p. 94.

68. Ibid., pp. 99-100.

69. Ibid., pp. 100-101.

70. Overton, A Picture of the Council of State, in Haller and Davies, The Leveller Tracts, p. 223.

71. Ibid., p. 224.

72. Ibid., pp. 224-25.

73. Overton, A Manifestation, p. 394.

74. Ibid., p. 396.

75. Wolfe, Leveller Manifestoes, p. 397.

76. Lilburne, Walwyn, Prince and Overton, An Agreement of the Free People of England, in ibid., pp. 405-407.

77. Overton, Overton’s Defiance of the Act of Pardon (1949), pp. 4-5.  Copy from the Huntington Library Collection.

78. Ibid., p. 7.

79. Overton, The Baiting of the Great Bull of Bashan (1649). p. 3.  Copy from the Huntington Library collection.

80. Ibid., pp. 2-3.

81. Ibid., p. 4.

82. Ibid., p. 6.

83. C. H. Firth, Dictionary of National Biography (London: Oxford University Press. 1967-68), 14:1281.  Firth’s “Richard Overton” entry, from which this reference is made, lists Overton’s writings and gives a picture of his tumultuous life.

84. Wolfe. Leveller Manifestoes, p. 54.

  A more recent collection of Leveller documents, which re-sparked my interest in the Leveller movement is G. L. Aylmer, ed.. The Levellers in the English Revolution (Ithaca, N.Y.: Cornell University Press, 1975). Further interpretation of the movement can be found in Henry Holorenshaw, The Levellers and the English Revolution (London: Victor Gollancz, 1939).  Two (less helpful) articles which have come to my attention are: Iain Hampsher-Monk, “The Political Theory of the Levellers,” Political Studies 24, no. 4 (1976): 397-422; and J. C. Davis, “The Levellers and Christianity,” in Brian Manning, ed., Politics, Religion, and the English Civil War (New York: St. Martin’s Press, 1973), pp. 225-50.

  While it does not appear that any biography has been written detailing the life of Richard Overton, there are several studies of the life and thought of John Lilburne, Leveller leader.  Two biographies that I referred to are: M. A. Gibb, John Lilburne (London: Lindsay Drummond, 1947); and Pauline Gregg, Free-born John (London: Harrap Publishers. 1961).

  The reader is referred to the National Union Catalog, Pre-1956 Imprints, vol. 435, in which the listings under Mary and Richard Overton provide the names and locations of their material in the U. S

by Carl Watner

1982

The leading English individualists as they appear in Benjamin Tucker’s journal, Liberty, are Auberon Herbert, Wordsworth Donisthorpe, Joseph Hiam Levy, Joseph Greevz Fisher, John Badcock, Jr., Albert Tarn, and Henry Seymour. Ranked approximately according to their contributions and involvement in Liberty, this group also includes M. D. O’Brien, J. M. Armsden, W. C. Crofts, A. E. Porter and J. C. Spence.[1]Their activities and writings serve as the focal point for research into the history of late-nineteenth and early-twentieth century individualist anarchism in England.Liberty, an international clearinghouse for libertarian ideas during the almost three decades of its existence (1881-1908), reported on and editorialized about the ideology and politics of the English individualist movement.The purpose of this paper is to bring to light some of the little known history and ideas of the movement, based on articles in Liberty and other sources.

The English individualist anarchist movement was no more or less unified than its ideological counterpart in the United States.Auberon Herbert (1838-1906), a one-time member of Parliament, called his philosophy “voluntaryism” and was the world’s leading advocate of voluntary taxation.For over a decade, he edited and published an individualist journal, called Free Life.One of his supporters, M. D. O’Brien, went to jail for refusing to send his children to school.[2] Wordsworth Donisthorpe (1847-?) was a near-anarchist barrister and small-time coal mine owner, who, with his cousin, W. C. Crofts (1846-1894), formed the State Resistance Union in 1880.He edited a journal called Jus, and his organization was the forerunner of The Liberty and Property Defence League.Joseph Hiam Levy (1838-1913) was a teacher of economics at Birkbeck College and became involved with the Personal Rights Association in 1878. He eventually became secretary of this organization and edited its journals for many years.Levy was the leading individualist advocate of limited government with compulsory rights of taxation. He was also involved in the anti-vivisection movement.J. Greevz Fisher, John Badcock, Henry Seymour, and J. H. Levy were all involved in the Legitimation League formed in London around 1892 for the purpose of changing the bastardy laws so that offspring born out of wedlock were not deprived of their rightful inheritances.Fisher formed the Parents’ Defence League, whose apparent purpose was to passively resist compulsory schooling of children.[3]Although little else is known about Fisher, he was a clear economic thinker, as his contributions to Liberty demonstrate. He presented one of the two known refutations of money-crankism during the nineteenth century.[4]John Badcock, Jr. (1861?-1926) was an egoist and follower of the doctrines of Max Stirner.He was an accountant by profession and later became a dealer in Chinese art.[5]Albert Tarn was one of Tucker’s agents for Liberty in England.He published the Herald of Anarchy and Free Trade magazines during the early 1890’s.[6]Henry Seymour, John Armsden, and Badcock were associated in the Free Currency Propaganda movement, which advocated repeal of the Bank Charter Act of 1844, repeal of the legal tender laws, and destroying the Bank of England’s monopoly hold on the money supply.By increasing the supply of money in circulation, the propagandists hoped to lower the rate of interest and diminish the capitalists’ profits.Their ideas on interest, and on the causes of poverty, wealth, and capital were well outlined in contributions appearing in Liberty. Henry Seymour was a free-thinker and friend of Charles Bradlaugh. In the mid-1880’s he published a journal called The Anarchist,and was well acquainted with the London anarchists of all persuasions.

This disparate group of activists and thinkers were truly individualists; no two were wholly alike in their philosophy.What united them was their general adherence to a doctrine of individual freedom in economic enterprise and social relations, which they believed should not be restricted by governmental regulations.Every one of the group mentioned had at least minor differences with Tucker and the editorial doctrines of Liberty.Although some of the English individualists refused to call themselves anarchists, their doctrines were perilously close to anarchism.Benjamin Tucker defined anarchism as the doctrine that the State should be abolished and all the affairs of men be carried out on a voluntary basis.[7]More than likely, Herbert, Donisthorpe, Tarn, Seymour, and Badcock would have accepted this statement as an expression of their own political beliefs. J. H. Levy definitely would not.

In an appendix on “Political Terminology” appearing in his debate with Herbert on Taxation and Anarchism, Levy charted out the differences among the English individualists.Both the communist anarchist and the individualistic anarchist, wrote Levy, are “opposed to the existence of government; and, though they differ as to what should be done when the State had been got rid of, and would probably be at each other’s throat the moment the authority which they both assail was removed, the range of their agreement entitled them equally to the general designation of Anarchists.”[8]True individualism, according to Levy, asserts that “compulsory co-operation is good up to the point at which freedom is maximized,” and that “it is harmful when pushed beyond that point.It affirms that government can promote happiness only by maintaining the widest practicable liberty, which it regards as the political–as distinguished from the ethical–summum bonum; and it judges all political measures by their tendency to promote or impede the attainment of this end.”[9]Referring indirectly to Herbert, Levy claimed that no individualist would ever dub himself an anarchist, “though some Anarchists call themselves Individualists.”[10]

The main bone of contention between Herbert and Levy was illustrated in their exchange of views in Taxation and Anarchism, which appeared as a publication of The Personal Rights Association in 1912, several years after Herbert’s death.This discussion between Levy and Herbert was the out-growth of a speech delivered by Levy in January 1890, entitled “The Outcome of Individualism,” and of his contributions to the Personal Rights Journal of October 1890. Levy attacked “the whole scheme of so-called ‘Voluntary Taxation”‘ because it seems to show a “deficiency of analytic power.”

Its projectors appear to think that they can substitute for the State an organization supported by voluntary contributions. . . . Taxation must be, potentially at least, co-extensive with government.The way to reduce it is severely to limit the functions of government to the maximizing of liberty, to abolish privilege, and to exercise due vigilance over the expenditure of State revenue.Such vigilance is becoming every day farther removed from possibility by the growth in complexity of the functions assigned to the State. This is the evil which must be attacked.”[11]

Herbert opened his attack on Levy by rebutting Levy’s challenge that “voluntary taxation” was a contradiction in terms.He claimed that Levy’s use of the concept “compulsory co-operation” was an even “greater” contradiction. Summarizing his position, Herbert argued as follows:

What I contend for is that no force-system should over-ride the consent of a man who has not aggressed against the person or property of his neighbour. I say that a man’s consent as regards his own actions is the most sacred thing in the world, and the one foundation on which all human relations must be built.To me it seems idle to talk of Individualism where this consent is not held sacred. . . [T]he moment I am told that the individual may be caught by the collar and compelled to form a society, may he compelled to share in making laws, may be compelled to maintain these laws, I feel that I am no longer standing on Individualistic ground. . . . Believing, then, that the judgment of every individual who has not himself aggressed against his neighbour is supreme as regards his own actions, and that this is the rock on which Individualism rests–I deny that A and B can go to C and force him to form a State and extract from him certain payments and services in the name of such State. . . . The only difference between the tax-compelling Individualist and the State-Socialist is that whilst they both have vested the ownership of C in A and B, the tax-compelling Individualist proposes to use the powers of ownership in a very limited fashion, the Socialist in a very complete fashion.I object to the ownership in any fashion.[12]

Responding to Herbert’s arguments, Levy maintained that Herbert was mounting “an Anarchistic attack on Individualism.” “It is a direct confirmation of my statement that voluntary taxationists have fallen into Anarchism without knowing it.”[13]Victor Yarros, in his editorial capacity with Liberty, confirmed Levy’s judgment in this matter by arguing: “Voluntaryism is simply Mr. Herbert’s preferred synonym for Individualistic Anarchism.”[14]

The discussion between Levy and Herbert largely revolved around the way in which each formulated his view of individualism.Herbert held that compulsory taxation was opposed to the principles of individualism, to such an extent that the two could never be reconciled in any satisfactory way.Herbert was quite prepared to offer a philosophic basis for individualism from the anti-taxationist point of view:

(1). The great natural fact of each person being born in possession of a separate mind and separate body implies the ownership of such mind and body by each person, and rights of direction over such mind and body; it will be found on examination that no other deduction is reasonable.

(2). Such self-ownership implies the restraint of violent or fraudulent aggressions made upon it.

(3). Individuals, therefore, have the right to protect themselves by force against such aggressions made forcibly or fraudulently, and they may delegate such acts of self-defence to a special body, called a government. . .

Condensed into a few words, our Voluntaryist formula would run: “The sovereignty of the individual must retain intact, except where the individual coerced has aggressed upon the sovereignty of another unaggressive individual.”[l5]

Interestingly enough, Levy flatly rejected this formulation of individualism. Levy asserted: “It seems to me that Mr. Herbert has wandered into the cloud land of meta-politics. . . . I certainly shall not accept such a ‘philosophical basis for Individualism,’ because ‘no other deduction’ of the same sort ‘is reasonable.’There is no deduction at all, but a gross and palpable petitio principii. “[16]In short, Levy concluded that “Mr. Herbert’s formula is that of Anarchism.”[17]

Herbert rejected Levy’s claim that he was an anarchist.According to his own understanding, anarchists would not retain any form of organization to repress aggression or crime.They would not maintain any sort of defense agencies to function as police or courts.The difference between him and Levy was that while he would retain such organization in his ideal society, he would not force those disapproving of the police or courts to pay for them; Mr. Levy, in contrast, would compel the conscientious objectors to pay for them just the same.[18]”We agree that there must be a central agency to deal with crime–an agency that defends the liberty of all men, and employs force against the uses of force; hut my central agency rests upon voluntary support, whilst Mr. Levy’s central agency rests on compulsory support.”[19]The question between Levy and Herbert, as Herbert saw it, was: “Are the principles of Individualism most truly followed when the tax for the support of this [central] agency is taken voluntarily or compulsorily?”[20]

Viewing himself not as an anarchist but as an individualist, Herbert maintained that in an anarchistic society no such central agency for the repression of crimes and aggressions could exist.”My charge against Anarchism is that it sees many forms of crime existing in the world, and it refuses to come to any settled opinion as to what it will do in the matter.If it says it will do nothing, then we must live under the reign of the murderer, tempered by Judge Lynch; if it says it will have some form of local jury, then we are back into government again at once.[21]Herbert acknowledged that there were existing schools of anarchism, “represented in America by Mr. Tucker, and some philosophical Anarchists in England,” but as far as he could see, “none of these schools are prepared to tell us clearly what they will do about ordinary crime.”It was Herbert’s contention that “the moment they begin to deal with crime according to any fixed method and settled precedent, they are at once back into Archism.”[22]The dividing line between statism and anarchism was, according to Herbert: “Do you intend to provide an agency for dealing with crime according to fixed rules and methods, or not? The way in which you pay your agency–though a very important matter in itself, must be looked upon as a non-essential element in the difference between the two systems.”[23]As Herbert saw it, the anarchists espoused no fixed or objective standards by which to repress crime and aggression.”[24]

Levy, for his part, was a perceptive critic.Barring confusion over the labels “individualism” and “anarchism.” Levy realized that taxation was the very essence of government as it had always existed.”A voluntary association for defence could exist without it; but such an association would not be government.”[25] Nor could he accept Herbert’s analysis of the essential distinction between individualism and anarchism as being based on whether or not a central agency of defense was retained in their respective ideal societies. Levy rightly claimed “that there is nothing in Anarchism to prevent those who hold it from retaining any sort of organization for the repression of invasive conduct, so long as that organization is a voluntary one; and in this proviso they do not differ from Mr. Herbert.”[26] Levy maintained that Herbert had not thought out the consequences of his doctrine.What would happen, he asked, if one group of people in a voluntary taxationist society declined to recognize the “definition of rights promulgated by this voluntary association in which they took no part. . . ?”Suppose such a group “endeavored to set up a rival association of their own, . . .what would he do?”[27]

Would he [Herbert] prevent the formation of any such association?If so, does not this mean compulsory submission to the dictates of the association patronized by him?And if he would not interfere with the establishment of rival associations of this kind, with different views from his own association as to rights and methods, this would only defer for a little time the overruling of the weaker party. Where the ideas of such rival organizations clashed there would be conflict. The effective minority would be subdued in one way or another, and for all practical purposes they would be compelled to co-operate with the effective majority or to submit to it.[28]

As we shall see, Levy, the individualist, threw at Herbert the same arguments as those raised by the anarchist critics of his idea of voluntary taxation.

Herbert was wrong in viewing anarchism as not allowing for the existence of competing defense agencies to repress and fight crime.There was, however, an element of truth in his criticism of the individualistic anarchist movement of his day.Tucker, for example, maintained that local juries could render judicial decisions and claimed that anarchists viewed the functions of government as they would any other economic service provided by the market.Competing agencies would provide defense services, such as police protection and court decisions, on a voluntary and competitive basis.Where Herbert was correct in his criticisms of Tucker and other contemporary anarchists was that they failed to specify that all such competing defense agencies would be bound by a rational and objective code of libertarian legal principles and procedures based on the defense of person and property.[29]

Levy was correct in asserting that Herbert had not thought through the problems of voluntary taxation.Although coming from different perspectives, both Levy and Herbert’s anarchist critics, such as Rothbard, ask of Herbert and the proponents of voluntary taxation: “Would they use force to compel people not to use a freely competing defense agency within the same geographic area?”As Rothbard writes: “The voluntary taxationists have never attempted to answer this problem; they have rather stubbornly assumed that no one would set up a competing defense agency within a State’s territorial limits.”[30] Clearly, if the government of a voluntary taxation society chose to outlaw all competing defense agencies, it would not function as the voluntary society sought by its proponents.”It would not force payment of taxes,” but it would monopolize the provision of defense services.”On the other hand, if the government did permit free competition in defense service, there would soon no longer be a central government over the territory.Defense agencies, police and judicial, would compete with one another in the same uncoerced manner as the producers of any other service on the market. . . . Defense service would at last be made fully marketable”[31]

Despite these flaws in his theory, Herbert realized that Levy’s theory of individualism was marred by the existence of compulsory taxation in a society trying to maximize freedom.Herbert understood that compulsion was a contradictory element in such a society and that taxation had to be eliminated.However Herbert erred in not realizing that “freely competing judicial agencies would have to be guided by a body of absolute law to enable them to distinguish objectively between defense and invasion.”[32]This point was not crystal clear even to Tucker or his followers, although at one point Tucker declared that “Anarchism does mean exactly the observance and enforcement of the natural law of liberty.”[33]It was left up to the twentieth-century individualist anarchists to explain the importance of a libertarian legal code. For example, Rothbard posits that his view of libertarianism includes, “not only the abolition of the State, but also the general adoption of a libertarian law code.”If the bulk of the population were to become persuaded to abolish the State, then they must already have been convinced that the aggressions the State commits are immoral violations of liberty and private property: “on what other basis can we convince them to abolish their revered government apparatus?”[34]

In the various discussions of voluntary taxation which appeared in Liberty, Tucker came very close to espousing this viewpoint.In response to a series of queries from Donisthorpe, Tucker noted: “A system of Anarchy in actual operation implies a previous education of the people in the principles of Anarchy, and that in turn implies such a distrust and hatred of interference that the only band of voluntary cooperators which could gain sufficient support to enforce its will would be that which either entirely refrained from interference or reduced it to a minimum.”[35]Although he did not follow up on this insight, Tucker realized that the implementation of anarchy carried with it the implication that people generally understood and accepted a libertarian legal code.

In other discussions of voluntary taxation with the English individualists, Tucker threw out a series of challenges to his correspondents. In Liberty of November 1, 1890, around the same time that Levy and Herbert were beginning to exchange views, Tucker reprinted several paragraphs written by Levy in the Personal Rights Journal.In these paragraphs, Levy plainly stated that anarchism implies the right of an individual to stand aside and see a man murdered or a woman raped. In contrast, Levy asserted that individualism would not only restrain the active invader but would also coerce into cooperation the man who would otherwise be a passive witness of aggression.Tucker accepted this judgment and pointed out that to coerce the peaceful non-cooperator is to violate the law of equal liberty.It is just as “impossible to attain the maximum of liberty by depriving people of their liberty as to attain the maximum of wealth by depriving people of their wealth. . . . [T]he means is absolutely destructive of the end.” Tucker understood that with compulsory taxation abolished, there could be no State.”The defensive institution that will succeed it will be steadily deterred from becoming an invasive institution through fear that the voluntary contributions will fall off.This constant motive for a voluntary defensive institution to keep itself trimmed down to the popular demand is itself the best possible safeguard against the bugbear of multitudinous rival political agencies.”Tucker concluded his editorial by citing his chief interest in Levy’s article. Tucker was excited by Levy’s “valid criticism of those Individualists who accept voluntary taxation but stop short, or think they stop short of Anarchism, and I shall wait with much curiosity to see what Mr. Greevz Fisher, and especially Mr. Auberon Herbert, will have to say in reply. Mr. Donisthorpe probably will he heard from also, but he really does not fall within Mr. Levy’s criticism.He is, as Mr. Levy says, more of an Anarchist than anything else. . . . On the whole Anarchists have more reason to be grateful to Mr. Levy for his article than to complain of it. It is at least an appeal for intellectual consistency on this subject, and as such it renders unquestionable service to the cause of plumb-line Anarchism.”[36]

Four issues later, Tucker published a letter from Donisthorpe to the editor of Free Life, which he captioned “Discrepant Boundaries.” In the letter, Donisthorpe claimed that he saw no contradiction in the expression “voluntary taxation.”Addressing Auberon Herbert, Donisthorpe wrote:

My quarrel with your Individualism is that the world is not ready for it. My individualism is absolute Anarchy qualified by a regard for social evolution. . . . Mr. Levy seems to me to hold with us moderate Anarchists that at present we require a residuum of State action.But where I think he errs is in supposing that this is the necessary and permanent condition.In the perfect (or more perfect) state of social development, I agree with your view.In the present state Mr. Levy and I are more in line, looking on the State as a necessary institution. We diverge when he insists on regarding it as a permanent institution. Perhaps I should even outrun you a little in the future.I am inclined to think with Tucker, that even the administration of justice will fall into private hands, though it is hard to foresee the construction of the judicial system.” [37]

Several months later, Tucker published another article taken from Herbert’s Free Life entitled “Justice and Taxation” and written by one of Herbert’s associates, M. D. O’Brien.In it, O’Brien set forth both his and Herbert’s view of voluntary taxation.Opening on the note that all individualists are in agreement that it is right to restrain by force the man who aggresses by force upon another man, O’Brien chided the “Taxation-Individualists” (“to use a ‘Free Life’ term”) for thinking it right to coerce a peaceful non-invader.In agreement with O’Brien, Tucker wrote:

a man’s non-aggressive earnings are his own, and there is no other warrant, save force, for a majority confiscating any portion of them . . . . We are only justified in using force when force is used to us, and all the helpers we get should be volunteers, not people whom we have impressed, or, what is the same thing, the impressed earnings of those people.[38]

In a much earlier piece (which was subsequently reprinted in Instead of a Book, Tucker referred to “some very interesting and valuable discussion” which “is going on in the London Jus concerning the question of compulsory versus voluntary taxation.”F. W. Read had written to Donisthorpe, editor of Jus, that voluntary taxation implied the existence of five or six voluntary states in England. Tucker pointed out that he saw nothing wrong or unusual with such a situation.After all, Tucker explained, there were more than five or six churches in England and many more than five or six insurance companies.”Though Mr. Read has grasped one idea of the voluntary taxationists,” he failed to see the other important idea behind it: “the idea that defence is a service, like any other service; that it is labor both useful and desired, and therefore an economic commodity subject to the law of supply and demand; . . .that, competition prevailing, patronage would go to those who furnished the best article at the lowest price; that the production and sale of this commodity are now monopolized by the State; that the State, like almost all monopolists, charges exorbitant prices; that, like almost all monopolists, it supplies a worthless or nearly worthless, article; . . .the State takes advantage of its monopoly of defence to furnish invasion instead of protection; . . .and, finally, that the State exceeds all its fellow-monopolists in the extent of its villainy because it enjoys the unique privilege of compelling all people to buy its product whether they want it or not.”Tucker concluded that only by five or six “states” hanging out their shingles and competing with one another could people be assured of quality service at reasonable rates.”And what is more,–the better their services, the less they would he needed; so that the multiplication of ‘States’ involves the abolition of the State.”[39]

As we have seen, the editors of Jus, Personal Rights, Free Life, and Liberty had significant differences among themselves. Levy commented on this in his previously mentioned discussion on “Political Terminology.”With respect to land ownership, Levy called Herbert a conservative anarchist.”The Conservative Anarchist would retain private property in land very much as it is in England at the present day, merely abolishing the obstacles to its free sale and purchase.The Individualist Anarchist would laugh at this pretension to sell or let land and would recognize only the right of the squatter to the land in his use or productive occupation.” The communist anarchist would decline to recognize any rights of property in land.[40]Liberty’s and Tucker’s position was that of the individualist anarchist, advocating the doctrine of occupation and use as the sole basis for land-holding.[41]Levy’s position on landownership is not clearly spelled out, although Tucker claimed that he was an advocate of land nationalization in England.[42]

These differences regarding landownership were aired in the pages of Liberty many times over.In one of the earlier references in Liberty, referring to the “Solutions of the Land Problem” and the English individualists, Victor Yarros noted that although he agreed with Auberon Herbert’s conclusions as far as they went, he did not reach these conclusions by the same logic.Quoting from an 1889 symposium on the land question held by the Personal Rights Association, Yarros quoted Herbert as follows: “The free and open market is the one system that does most justice among individuals, being the only impartial institution that exists, and at the same time is the only system that gives the evolutionary forces free play. . . . I scarcely need add that at present we have not a truly free and open market for land.All artificial impediments should be removed, and no new ones invented.”[43] Related issues were raised in Liberty about a year later, when Tucker reprinted correspondence which had appeared in Free Life.Albert Tarn, whom Tucker describes as an “Anarchistic correspondent,” had addressed a letter to Free Life in which he tried to combat Herbert’s assertion that anarchism would throw property titles, especially land titles, into hopeless confusion. Herbert’s contention was that “under the law of the free market, everybody knows, first, who owns a particular piece of property, and, secondly, the conditions under which property can be acquired.” Herbert attacked the doctrine of occupancy and use for being vague and indefinite in terms of establishing how ownership would be established and transferred in an anarchist society.Editorializing, Tucker rejoined that it would be up to “municipalities” (based on voluntary associations) to “formulate and enforce this view” of occupancy and use.According to Tucker, “under Anarchism all rules and laws will be little more than suggestions for the guidance of juries, and that all disputes, whether about land or anything else, will be submitted to juries which will judge not only the facts but the law.”[44]

Several months later, under the headline “Private Property and Freedom,” Victor Yarros picked up the argument again.According to Yarros, the difference between the viewpoints of Liberty and Mr. Herbert was: “he believes in allowing people to retain all their possessions, no matter how unjustly and basely acquired, while getting them, so to speak, to swear off stealing and usurping and to promise to behave well in the future.We, on the other hand, while insisting on the principle of private property, in wealth honestly obtained under the reign of liberty, do not think it either unjust or unwise to dispossess the landlords who have monopolized natural wealth by force and fraud.We hold that the poor and disinherited toilers would be justified in expropriating, not alone the landlords, who notoriously have no equitable titles to their lands, but all the financial lords and rulers, all the millionaires and very wealthy individuals.”Yarros recognized that “almost all possessors of great wealth enjoy neither what they nor their ancestors rightfully acquired (and if Mr. Herbert wishes to challenge the correctness of this statement, we are ready to go with him into full discussion of the subject).If he holds that the landlords are justly entitled to their lands, let him make a defence of the landlords or an attack on our unjust proposal.”[45]Unfortunately, Herbert never defended his position in Liberty. In the following issue, however, Tucker printed another letter from Herbert in which he continued his attack on occupancy and use. Tucker commented on it as follows:

The trouble with Mr. Herbert is that he begs the question of property altogether, and insists on treating the land problem as if it were simply a question of buying and selling and lending and borrowing, to be settled simply by the open market.Here I meet him with the words of his more conservative brother in Individualism, Mr. J. H. Levy, editor of the “Personal Rights Journal,” who is trying to show Mr. Herbert that he ought to call himself an Anarchist instead of an Individualist. Mr. Levy says, and I say after him: “When we come to the ethical basis of property, Mr. Herbert refers us to the open market.But this is an evasion. The question is not whether we should he able to sell or acquire in the open market anything which we rightfully possess, but how we come into rightful possession.And if men differ on this, as they do most emphatically, how is this to be settled?”[46]

Auberon Herbert was a hybrid, fully acceptable neither to Levy, the individualist, nor to Tucker, the anarchist.Even Wordsworth Donisthorpe rejected Herbert’s notions of self-ownership and rights: “Mr. Auberon Herbert insists on the right of self-ownership.He claims the right to own himself.I dispute it.I cannot see upon what the right is based. . . . I saw the force of their [the abolitionists’] arguments, and agreed; not because the niggers had any right to their liberty, but because I thought that in my interest that right should be conferred upon them.I deny the right then claimed for them, and I am delighted that they enjoy it now.”[47]Yet, Herbert was not without his supporters (except perhaps on the property or self-ownership question). John Badcock, in a letter to the Personal Rights Journal, wrote: “The most valuable part of Auberon Herbert’s teaching, to my mind, is the destruction which he gives to the artificial distinctions that have been set up between the acts of government and the acts of individuals, and the placing on par of all aggressions, whether individually or collectively perpetrated, whether sanctified by statute law or not so sanctified.”[48]

Herbert’s differences with Tucker and Liberty were not limited to property matters alone.Within a year after he had serialized and reprinted Herbert’s A Politician in Sight of Haven, Tucker chastised Herbert for not realizing the importance of economic equity to anarchist thinking. “Mr. Herbert proves beyond question that the government of man by man is utterly without justification, but is quite ignorant of the fact that interest, rent, and profits will find no place in the perfect economic order.”Tucker’s comments not only illustrate his own economic thinking, but criticize Herbert at the same time. Tucker complained that Herbert had never called attention to the importance of free trade in banking: “If he would only dwell upon the evils of the money-issuing monopoly and emphasize with his great power the fact that competition, in this as in other matters, would give us all that is needed of the best possible article at the lowest possible price, thereby steadily reducing interest and rent to zero, putting capital within the comfortable reach of all deserving and enterprising people, and causing the greatest liberation on record of heretofore restricted energies.”[49]

In turn, Herbert eventually asked in his Free Life how Tucker could justify a campaign against the right of men to lend and borrow.Tucker, of course, denied that he had ever campaigned on such an issue, but pointed out that he hoped that lending and borrowing might one day disappear in an anarchist society, where there would be no restrictions on people monetizing their own credit.Tucker asserted that “interest, however it may have originated, exists today only by virtue of the legal monopoly of the use of credit for currency purposes.” Anarchists “trace the process by which an abolition of that monopoly would reduce the rate of interest to zero. Mr. Herbert never stops to analyze this process that he may find the weak spot in it and point it out; he simply declares that interest, instead of resting on monopoly, is the natural, inevitable outcome of human convenience and the open market. . . . If it be true that interest will exist in the absence of monopoly, then there is some flaw in the reasoning by which the Anarchists argue from the abolition of monopoly to the disappearance of interest.”[50]

The pages of Liberty were peppered with arguments over economic issues, especially those issues concerned with money, banking, and interest. There were disputations in all directions: American anarchists arguing with other Americans; Americans arguing with the English individualists; and even the English individualists using the pages of the American Liberty to dispute among themselves.Of the English individualists, J. Greevz Fisher was probably the most prolific writer on these topics. Fisher was embroiled in at least three sets of debates appearing in Liberty.Beginning in 1891, Fisher and Tucker engaged in a spirited exchange concerning the power of government over values and free trade in banking.This exchange was included in Instead of a Book.Then in 1894 Hugo Bilgram and Fisher had it out in a lengthy series of letters regarding the justification of interest. Finally, in late 1896 and early 1897, John Badcock and Fisher went at one another over the alleged money famine and the value and volume of money.In most of these debates, Fisher criticized the anarchists from the point of view of sound economics.[51]

In the first of these series of debates, Tucker and Fisher discussed the merits of mutual banking.Fisher maintained that there was no legal obstacle to the introduction and circulation of promises of all types (such as promises to deliver wheat, cotton, or oil) which might then take the place of the Bank of England promises which circulated as money.Since there was no restriction on the types of money that might circulate, along with gold and promises to pay gold, Fisher claimed that government, in general, had little power to affect the purchasing power of gold.Tucker, on the other hand, alleged that the laws of England did not allow the workingmen to form mutual banks; that is, banks designed to issue paper money against any property that it may see fit to accept as security and such money not being redeemable in gold or silver.If mutual banks were not outlawed, then Tucker suggested that his English compatriots had nothing to complain of in the way of finance and had only to go out and start up their own banks in order to monetize their own credit.Tucker was convinced that such banking institutions were illegal in England “and in that case I tell him again that the present value of gold is a monopoly value sustained by the exclusive monetary privilege given it by the government.”[52]

In his rebuttal, Fisher asserted: “Schemes to bring about the abolition of interest, especially when the authors promulgate this as a necessary consequence of free trade in banking are pernicious. . . . What is called free trade in banking actually means only unlimited liberty to create debt.It is the erroneous labelling of debt as money which begets most of the fallacies of the currency-fadists.”[53]Tucker responded by quoting from Colonial William Greene’s Mutual Banking, claiming that mutual banking would reduce the value of gold because “it would thereby be stripped of that exclusive monetary utility conferred upon it by the State.”Tucker added that “the percentage of this reduction no one can tell in advance, any more than he can tell how much whiskey would fall in price if there were unrestricted competition in the sale of it.”[54]In his third letter in this series of exchanges, Fisher restated his contention that Tucker was wrong in thinking that the law of England did not permit mutual banks. In Fisher’s opinion, the concern of Tucker and the American anarchists was misplaced because they greatly overestimated the evils of the State banking system.[55]

In 1893 Tucker reprinted an address delivered by Hugo Bilgram on the subject of interest: “Is Interest Just?”In turn, J. Greevz Fisher wrote the Manchester Times criticizing Bilgram’s presentation. The following year Liberty carried a letter from Bilgram answering Fisher’s attack.[56]This was the beginning of a lengthy exchange between these two correspondents. Tucker would publish a letter by Fisher and in the same issue Bilgram’s “rejoinder” would appear. Fisher claimed that “the hire of tools, materials, and maintenance would yield a revenue in the absence of money” and that it was not the existence of government and its restrictive monetary policies that were responsible for interest.”What is necessary in order to establish the justice of interest is to show that in the absence of any restriction upon the issue of instruments of credit, and in the utter absence of laws of legal tender, interest would still be paid.” Mr. Bilgram, on his part, contended that government policies, such as “legal regulation of the volume of currency,” are “the cause of crises and business stagnation, of the existence of squalid poverty among those unable to find employment.”[57]In Fisher’s next letter to Liberty he outlined the core of his arguments against Bilgram:

Free and wholly unrestricted issue of all sorts of paper by all sorts of people to the utmost extent to which they could get it into circulation would certainly have as one of its results the development of a greater caution in accepting promises from those calling themselves bankers, and the elaboration of a system of voluntary audits and mutual guarantee of each other’s notes by many of these bankers. . . . Mr. Bilgram appears to take no notice of the argument that the rate of interest upon loans. . .[would still exist] under a system of barter. . . . Interest is the hire of commodities separated from their owner and entrusted to another person.The time of separation is a privation to one party (in marginal cases, which rule all cases) and a benefit to the other party.[58]

In later letters, Fisher stressed the importance of understanding the purchasing power of money.As he phrased it, “As money becomes scarce, it becomes more potent in exact proportion to its rise in value.”[59] Bilgram admitted that to the extent that interest “is a payment for risk. . .interest is just,” but he continued to assail “as unjust that part of interest which is said to be paid for being ‘deprived of a day’s pleasure’.”[60]In Bilgram’s view, interest was a monopoly privilege created by the laws forbidding the circulation of banknotes other than those by legally recognized banks.Thus interest was paid to holders of these notes only because of this exclusive monopoly privilege, which in effect restricted the amount of currency in circulation and on loan.Although Tucker was sympathetic to Bilgram’s arguments, he left it to his readers “to judge between the arguments that have been advanced,” when this debate closed in 1895.[61]

While these arguments were appearing in Liberty, several of the English individualists in London organized a new movement which they termed “The Free Currency Propaganda.”The society was formed for the purpose of assaulting the monopoly of money-issue.Their prospectus set forth the following views:

We affirm that the equitable payment of labor. . .is its entire product. . .and that the prevailing monstrous departure from this self-evident principle of justice, the sole and sufficient cause of social discontent and oppression, is due to the monopolies of land and capital. . . . We furthermore affirm that the monopoly of capital is solely due to the monopoly of monetary credit, which necessarily and essentially results from the arbitrary and exclusive adoption of gold–or specie–value as the basis of the circulating medium. . . . The tyranny of the money monopoly thus operates not only positively by exacting the tribute of interest and monopoly profits, but also negatively by barring the working classes from self-help and association.[62]

Among the names appearing at the end of this prospectus were those of Henry Seymour, John Armsden, Alfred E. Porter and John Badcock, Jr. Although J. Greevz Fisher could not support The Free Currency Propaganda movement, he realized that there was an element of truth in its assertions. He could support the idea of “free banking” based on property rights as summed up by G. O. Warren, writing under the name of T. L. M’Cready, one of the founding members of the movement: “the right to private property necessarily includes the right to exchange that property, and the right to exchange it includes the right to determine what it shall be exchanged for, be it any article or commodity, or a piece of paper with an inscription on it, be that inscription written or printed, and from whatever source. And, therefore, that any restriction upon, or interference with, exchange is a denial of the right of private property, and should be resisted.”[63]

In 1896 John Badcock, Jr. wrote an article appearing in Liberty on “The Money Famine” in which he supported these ideas. The main thrust of his argument was to oppose State monopolization of money issuance: “Let us have free trade in the issue of money. Only under freedom can the merits or demerits of any particular monies and instruments of credit have a chance to be demonstrated, and the fittest survive.Good money may be left to drive out bad money unaided.Let it be unhindered.”[64]However, his argument was not limited to this point.Badcock considered that there was a true “money famine” caused by restrictive banking laws and legal tender laws and, much like Bilgram, claimed that if the supply of money were increased interests, profits, and rent would disappear. In his first of a series of attacks on these ideas, which Tucker printed soon after the appearance of Badcock’s original article, Fisher maintained that the “money famine” was allegation rather than fact. He termed the expectation that interest, profits, and rent would disappear under a regime of free banking as “positively puerile.” “Under complete monetary freedom the delusion that debts are money would vanish.The benefits to be expected [from complete monetary freedom] lie in the direction of increased activity, competition, and stability of bankers, money-lenders, and borrowers.”[65] He also stressed the importance of understanding that the quantity of money in circulation was not of paramount concern because the purchasing power of money was not fixed and was changeable in accord with the supply of money on the market.The discussions and rejoinders between Badcock and Fisher continued in several later issues of Libertyand revolved around the formation of mutual banks in England and the exact form which the notes of such banks might take.This exchange ended finally in April 1897.[66]

None of these arguments was ever settled once and for all in Liberty. More than two years after the Badcock-Fisher debate, in September 1899, Wordsworth Donisthorpe sent a letter to Tucker on “Currency; Money and Credit; Coinage.”[67]Not to be outdone, Fisher addressed a letter to Liberty on “Mr. Donisthorpe on Currency.” This was his last contribution to Liberty on the subject of money.In it he made two very interesting observations. First, he supported the arguments of those advocating perfect freedom to issue money.”Liberty would enable the markets and force the issuers [of money] automatically and continuously to correct and improve the money or tokens.Gresham’s law as to the superior potency of inferior money applies only to fiat made money.”[68] Secondly, he summarized his views on the significance of monetary freedom in England, should it be instituted sometime in the future:

What then would be the advantages of liberty in relation to the currency? They would be great, but not at all overwhelming.They could only remedy evils which exist in consequence of State action.These, from an economic point of view, are not all so great as many Socialists, Anarchists, and Individualists imagine, at least in England.The main advantage would be in disabusing the public mind of the opposite superstition that State interference is very good and absolutely necessary. The fact is that it is no good at all.[69]

Tucker’s reaction to all of Fisher’s economic writings is to be found in his remarks in a column headlined “Anarchism and Children” written in 1895: “Pat Collins, the witty Democratic politician, once said of the late Prohibitionist leader Robert C. Pitman, that he would be a first-class man if he could only let rum alone.And I always think to myself, when I read the writings of Mr. J. Greevz Fisher in behalf of liberty, that he would be a first-class philosopher if he would only let money alone.”[70]Tucker then went on to quote approvingly from an article by Fisher which appeared in Personal Rights in April 1895 dealing with the question of parental responsibility for the support of children.Mr. Fisher wrote in part:

it would be highly dangerous to attempt to make legal responsibilities generally and universally embrace all moral responsibilities, because, if it were attempted, the enforcement of every virtue and the suppression of every vice would become objects of legal coercion. . . .

Neglect is not attack. . . . If a person, male or female, alleging parentage beats, enslaves, or defrauds a child, the Individualist has a perfect right to interfere.He can voluntarily associate himself with the child in a mutual defence organization. . . . No title to guardianship by a claimant parent ought to be admitted when the alleged guardianship is inimical to the minor.Beyond this point if it is unsafe to take one step.Neglect can be better remedied by upholding liberty for anyone directly to supply the wants of the neglected.It cannot be safely dealt with by attempts of a third party to force someone, supposed to be responsible, to undertake the duty.[71]

Tucker then quoted from the lament of the Personal Rights editor, J. H. Levy, who noted that Fisher’s argument was not, in fact, individualistic but rather anarchistic.Tucker, himself, had earlier written in favor of “The assumption is that we must not interfere to prevent neglect, but only to repress positive invasion.”[72] Tucker still maintained that “no person, parent or not, may be rightfully compelled to support any helpless being, of whatever age or circumstance, unless he had made that being helpless by some invasive act.”[73]

Subsequently, Tucker revised his position and logic on the question of parental responsibility and eventually concluded that the mother must own her children until the day that they reach maturity and self-emancipation.”[74]His final statement of his position was found in his editorial “L’Enfant Terrible”:

I can see 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. . . . 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 he prohibited, since third parties have not to consider the danger of disaster to organisms [children] that are outside the limits of social protection.[75]

In the same issue of Liberty, J. Greevz Fisher had a letter published in which he expressed his opposition to Tucker’s conception of “children as chattels.”Fisher pointed out that “the supposition of the chatteldom of the child, if based upon the utility, excellence and propriety of parental control, surely implies, among its benefits an advantage to the child.”Thus during the whole period of parental control, the parent is not an owner at all, but rather a “trustee”, in the legal jargon Fisher used.Fisher and other critics of Tucker’s position pointed out that if the mother were owner of the child, she could kill her child, “as a man may kill a horse,” or even throw her baby into the fire.[76]

Fisher was only one of several English individualists who claimed that the child was a self-owner who during its early years fell under the guardianship of its mother or parents.William Gilmour, the Scottish individualist, thought “guardianship, not ownership, is the real question at issue.”[77]John Badcock, in his letter “On the Status of the Child,” maintained that parents are the natural guardians of their children.”But,” he claimed, “guardian is not synonymous with owner, and, while guardianship is necessary for the child,–varying in quantity with the child’s development,–ownership is quite an intrusion, as it is in all slavery.”[78]Tucker expressed his opposition to the concept of guardianship or trusteeship. “I disclaim, however, any share in the belief which Mr. Badcock supposes me to hold in common with him that parents are the natural guardians of their offspring.I do not see why he supposes me to believe this, for not only is guardianship, as he says, not synonymous with ownership, but it is flatly contradictory of it. . . . Guardianship implies responsibility.In ownership there is no such responsibility. As I maintain that the mother is the owner of her child, of course I deny that she is guardian of her child.”[79]

John Badcock, Jr. was the author of Slaves to Duty, a lecture which he delivered in London in 1894.Although he and Tucker disagreed on the children issue, they held nearly identical ethical theories resting on egoism as illustrated by Tucker’s report of Badcock’s lecture.

In this lecture Mr. Badcock lays the spook of duty most effectively. He takes up, one by one, the various kinds of duties–political, social, marital, filial, etc.–discusses them as to their merits and demerits, and demonstrates that the subordination of self on the part of the individual to their requirements prevents him from appreciating the full value of existence and realizing the promises it originally holds out. In the place of duty Mr. Badcock puts–nothing, “as superstitions never want replacing,” but simply counsels people to study where their true and lasting interests lie and to turn all their energies to the furtherance of these regardless of codes, moral and political.[80]

Badcock and his English individualist friends displayed their contempt for society when they founded the Legitimation League in 1892 or 1893.J. H. Levy, J. Greevz Fisher, Donisthorpe, Badcock, along with Gladys and Oswald Dawson were all originally involved with the League.Its stated purpose was “to create machinery for acknowledging offspring born out of wedlock, and to secure for them equal rights with legitimate children.”[81]In 1893, Fisher published a pamphlet entitled “Illegitimate Children: An Inquiry into their Personal Rights and a Plea for the Abolition of Illegitimacy.”Wordsworth Donisthorpe published a review of this pamphlet in Liberty in 1894.[82] In 1897, according to Liberty, the League took on “A New Departure” as described by William Gilmour: “The Legitimation League, of London, which has had a somewhat passive existence since its formation four years ago, has now entered upon a ‘new crusade’. . .viz., the advocacy of the principle of sexual freedom, or freedom in sexual relationships.”Gilmour reported that Fisher and Donisthorpe had left the league, but that “Oswald Dawson, George Bedorough, Louie Bedorough, Seymour, Badcock, Rockell, and Wastall are still within its ranks.”[83]Henry Seymour became editor of its journal, The Adult: A Journal for the Advancement of Freedom in Sexual Relationships, which had a short-lived existence during the late 1890’s.[84]

Seymour had an interesting career as an anarchist, and fortunately a record of his early years in the movement has been preserved.His introduction to Tucker and Liberty was partly coincidental:

I chanced to meet Dr. Willard Knowleton Dyer and Sarah E. Holmes, who were travelling through Europe and temporarily staying at this resort [where Seymour had opened a “Science Library of advanced literature”]. They were enthusiastic in introducing the Boston Liberty, edited by Benj. R. Tucker, to my notice.Here was solid stuff, I thought, and not long elapsed before 1 was one of Liberty’s agents, and some time after published an English edition of Tucker’s translation of Bakunin’s God and the State.I remember, also, at this time, I happened across an old copy of Edmund Burke’s Vindication of Natural Society, which I sent to Tucker who promptly reprinted this gem as a classic introduction to the study of Anarchism.[85]

Seymour then recounts how he began publishing The Anarchist in March 1885.”It set forth my own profession of faith,–almost identical with that of Liberty–and contained original contributions by such notable writers as Henry Appleton, George Bernard Shaw, and Elisee Reclus, with whom I had made contacts.”[86]Eventually an English Anarchist Circle was formed among the many native and foreign anarchists in London, the most prominent of them being Peter Kropotkin. “The circle could not be squared,” wrote Seymour, and due to the differing temperaments and philosophic outlooks, the group disbanded. Seymour continued to publish The Anarchist and then The Revolutionary Review, until he went bankrupt.Seymour had wide connections in English anarchist circles and “had good relations with Malatesta, Tochatti (editor of the London Liberty), A. Tarn (editor of the Herald of Anarchy), Robert Harding, the passive-resistance Anarchist; and also met Lucy Parsons, Emma Goldman, Josephine Tilton, Lillian Harman, Sebastian Faure, Louise Michel, Bernard Lazare, Benj. R. Tucker and Mrs. Tucker with their bright little daughter, Oriole, when they severally came to London on various occasions.”[87]

Another aspect of the individualist anarchist movement in London during the last decades of the nineteenth century and the first decade of the twentieth was the Personal Rights Association.The extensive discussions between its secretary, J. H. Levy, and Auberon Herbert over compulsory taxation have already been examined.The Personal Rights Association has an interesting background and stems almost directly from the activities of a late Victorian reformer, Josephine Butler.A critic has described her as “the single individual most responsible for the spread of syphilis in Europe and perhaps the Josephine Butler was largely responsible for sparking the campaigns in England which led to the repeal of the Contagious Disease Acts.In 1864, the first of three Contagious Disease laws was passed by Parliament which made provisions for the surgical examination of prostitutes and for their confinement in “lock” hospitals if found diseased.The Act was limited to areas around eleven military garrisons and naval stations.The second Act of 1866 required prostitutes in these army towns to submit to medical examinations at least once every twelve months.A consolidating act was passed in 1868.In short the Contagious Disease Acts attempted to introduce in England the continental methods of regulating prostitution.[89]

Two distinct schools existed within the movement opposed to the Contagious Disease Acts. “For the policy, condemned by both alike, of regulating vice primarily in the interest of the physical health of vicious men, one desired to substitute the measures of vigorous suppression directed against men and women alike, while the other was chiefly concerned to protect poor and friendless women from being blackmailed and harassed by the police in the name of public decency, and was for leaving all forms of vice which did not involve force or fraud to be combatted by voluntary and non-coercive agencies.”[90]Josephine Butler’s organized activities against the Contagious Disease Acts began in 1869 or 1870, with the formation of the Ladies National Association for Repeal of the Contagious Disease Acts.Mrs. Butler was not a suppressionist, but rather believed in voluntary efforts to deal with the problem. In March 1871, she was on the organizing committee of The Vigilance Association for the Defence of Personal Rights and for the Amendment of the Law Wherein It Is Injurious to Women.[91]The membership of this latter organization reflects its origins in the Contagious Disease Acts controversy as well as in its overall anti-statist inclinations. For example, “while the radicals of the organization were caught up in the attempt to abolish state regulation of prostitution, they had also become exercised by a remarkably similar issue, compulsory vaccination.”[92]During the years 1881 to 1886, The Vigilance Association restyled itself and its purposes.J. H. Levy, who had been connected with the organization since 1878, was largely responsible for these changes.[93]

Under Levy’s leadership, the group became even more anti-statist.Beginning about 1881 such individualists as Donisthorpe, Herbert, and W. C. Crofts became involved in the organization.As the campaign for the repeal of the Contagious Disease Acts approached success (repeal was passed by Parliament in 1886), the two groups within The Vigilance Association (the coercive suppressionists and the non-coercive persuasionists) splintered. The suppressionists formed their own new organization called The National Vigilance Association for the Repression of Vice and Public Immorality. The persuasionists, claiming that the new group had “filched from us our good name,” changed the name of the original Vigilance Association to The Personal Rights Association.[94] Its organ, successively titled The Personal Rights Journal, Personal Rights, and lastly The Individualist, was published for over thirty years by Levy.[95] Through this medium, Levy “worked on the frontiers of liberal individualism in pursuit of the full application of the classical ideal of perfect equality before the law.”He “also worked in the neglected areas of personal rights, pioneering in lunacy law reform, participating in the anti-vivisection campaign and thereby extending liberal individualism. . . to its ultimate limits: the world of the helpless and the animal kingdom.”[96]

At least two supporters of the Personal Rights Association were involved in other anti-statist organizations.Wordsworth Donisthorpe was one of the two co-founders of the State Resistance Union (1880), which was the predecessor of the Liberty and Property Defence League (1882). Donisthorpe edited his own individualist journal, Jus, from January 1885 until March 1888.[97]Eventually Donisthorpe resigned from the Liberty and Property Defence League, because he was not satisfied with its limited activities.[98]Donisthorpe’s cousin, W. C. Crofts, remained administrator and secretary of the League until his death in 1894.Both he and Crofts tried to keep liberty, rather than property, to the fore, but it seemed to Donisthorpe that the League was more interested in defending the privileges of property.[99]

“Among the individualists an exotic variety of organizations” abounded.[100] Similarly there existed a wide range of opinions among those calling themselves individualists or individualist anarchists.Despite the differences between Tucker and the group of English individualists we have examined in this paper, all of them could probably subscribe to Tucker’s eloquent summation of his own creed, entitled “Woes of An Anarchist,” written in response to Wordsworth Donisthorpe’s essay of 1890: “there are some troubles from which mankind can never escape. . . . They [the anarchists] have never claimed that liberty will bring perfection; they simply say that its results are vastly preferable to those that follow from authority. . . . As a choice of blessings, liberty is the greater; as a choice of evils, liberty is the smaller. Then liberty always says the Anarchist:No use of force except against the invader.”[101]

NOTES

*This essay will also appear in Benjamin R. Tucker and the Champions of Liberty: A Centenary Anthology, ed. Michael E. Coughlin, Mark Sullivan, and Charles Hamilton (St. Paul, Minn.: Michael E. Coughlin, forthcoming, 1983). Copyright 1983 by Carl Watner.

1. Properly speaking, J. C. Spence should not be included in this group.His name does not appear in Wendy McElroy, comp., Liberty, 1881-1908: A Comprehensive Index (St. Paul: Michael E. Coughlin, 1982). He was a follower of Herbert’s Voluntaryist movement and wrote a very libertarian analysis of the land question entitled Property in Land: A Defence of Individual Ownership (London: Liberty and Property Defence League, 1897).According to Edward Jay Bristow (“The Defense of Liberty and Property in Britain, 1880-1914,” [Ph.D. diss., Yale University, 1970], p. 180). Spence was a prominent naval architect.William Gilmour is not listed here, since he was originally a Scottish anarchist, but he did contribute to Liberty and is briefly referred to in later parts of this essay.Little is known of Porter aside from his involvement in The Free Currency Propaganda.His contributions to Liberty are listed in McElroy’s Liberty. 1881-1908.

2. Bristow, “Defense of Liberty and Property,” p. 180.

3. Ibid.

4. Murray N. Rothbard, ‘The Spooner-Tucker Doctrine: An Economist’s View,” in Egalitarianism as a Revolt Against Nature and Other Essays(Washington, D.C.: Libertarian Review Press, 1974), p. 133.

5. S. E. Parker, “Introduction,” to John Badcock, Jr., Slaves to Duty (Colorado Springs, Colo.: Ralph Myles, 1972). p. 3.

6. Bristow, “Defense of Liberty and Property,” p. 178.

7. Liberty 5 (March 10. 1988):2.

8. Taxation and Anarchism: A Discussion between the Hon. Auberon Herbert and J. H. Levy (London: The Personal Rights Association, 1912), pp. 63-64.

9. Ibid., p. 61.

10. Ibid., p. 62.This is also confirmed by Tucker’s evaluation of Herbert’s philosophy. (See Liberty 15 [December 1906]:16.)For a selective bibliography on Auberon Herbert, see Eric Mack, ed., The Right and Wrong of Compulsion by the Store and Other Essays (Indianapolis, IN: Liberty Classics, 1978), pp. 27-29.

11. Taxation and Anarchism, pp. vi-vii.

12. Ibid., pp. 2-3.

13. Ibid., p. 7.

14. Liberty 13 (July 1899):2

15. Taxation and Anarchism, p. 24.

16. Ibid., p. 29.

17. Ibid., p. 32.

18. Ibid., pp. 40.41.

19. Ibid., p. 52. Although it is not absolutely clear from the quotation, the implication is that Herbert believed there would be only one (central) defense agency operating in his ideal society.

20. Ibid.

21. Ibid.

22. Ibid., p. 53.

23. Ibid.

24. Twentieth-century individualist anarchists have begun to develop such standards. For example, see George H. Smith, “Justice Entrepreneurship in a Free Market,” Journal of Libertarian Studies 3 (Winter 1979): 405-26.

25. Taxation and Anarchism, p. 44.

26. Ibid., p. 45.

27. Ibid.

28. Ibid., p. 46.

29. See Rothbard’s comments in “The Spooner-Tucker Doctrine,” pp. 127-28.

30. Rothbard, Power and Market (Menlo Park. Calif.: Institute for Humane Studies. 1970), p. 122.

31. Ibid., p. 123.

32. Ibid.

33. Quoted by Rothbard, “The Spooner-Tucker Doctrine,” p. 128, from Liberty 3 (October 24, 1885): 4.

34. Rothbard, “Will Rothbard’s Free-Market Justice Suffice?” Reason Magazine 5 (May 1973): 24-25.

35. Donisthorpe’s queries are in Liberty 7 (May 24, 1890): 6-7.Tucker’s answer is in ibid., pp. 5-6.

36. Liberty 7 (November 1, 1890):4.

37. Liberty 7 (December 27, 1890):3.

38. Liberty 7 (April 18, 1891):3.

39. Liberty 4 (July 30, 1887):4.

40. Taxation and Anarchism, pp. 64-66.

41. For a discussion of the occupation and use doctrine in Liberty, see Carl Watner, “A Question of Property,” The Dandelion, nos. 1, 2 (Spring and Summer 1977).

42. Liberty 7 (October 18, 1890):l.Also see Roland K. Wilson, The Province of the State (London: P. S. King and Son, 1911), p. 274.

43. Liberty 6 (August 10, 1889):5.

44. Liberty 7 (July 12, 1890):5.

45. Liberty 7 (November 15, 1890):4-5.

46. Liberty 7 (November 29, 1890):7.Herbert apparently did not rely an the homesteading principle.See Carl Watner, “Spooner vs. Liberty,”Libertarian Forum 7, no. 3 (March 1975): 5-7.

47. Liberty 14 (November 18, 1899):4.

48. Liberty 9 (June 24, 1893):3.

49.Liberty 3 (May 23, 1885):4.

50. Liberty 7 (October 18, 1890):4.Herbert’s only justification for interest was that it “is both moral and useful” (Liberty 7 [November 29, 1890]:4).

51. Rothbard, “The Spooner-Tucker Doctrine,” p. 133.

52. Liberty 8 (June 27, 1891):4.Also see comments, ibid., p. 3.

53. Liberty 8 (July 11, 1891):3.

54. Ibid., p. 4.

55. Far the rest of the letters in this series, see Liberty 8 (August 15, 1891):3, and 8 (August 22. 1891): 2-3.

56. For the original Fisher letter, see Liberty 9 (April 22, 1893):l.For Bilgram’s reply, see Liberty 9 (March 10, 1894):11.

57. Liberty 10 (May 19, 1894):8.

58. Liberty 10 (July 28, 1894):8.

59. Liberty 10 (November 17, 1894):4.

60. Ibid., p. 5.

61. Liberty 10 (March 9, 1895):s.Also see letters in Liberty 10 (January 12, 1895):4-5

62. Liberty 9 (May 5, 1894):ll.

63. Liberty 10 (September 8. 1894):9.

64. Liberty 12 (July 11, 1896):7.

65. Liberty 12 (October 1896):6.Note the similarity to Rothbard: “Thus, a system of free banking, such as envisioned by Spooner and Tucker, far from leading to an indefinite increase of the supply of money and a disappearance of interest, would lead to a far ‘harder’ and more restricted money supply” (“The Spooner-Tucker Doctrine,” p. 133).

66. Liberty 12 (January 1897):5-6, and 13 (April 1897):7.

67. Liberty 14 (September 1899):6-8.

68. Liberty 14 (November 1899):7.

69. Ibid., p. 9.

70. Liberty 10 (May 4, 1895):5.

71. Ibid.

72. Ibid. This is Levy’s formulation of Tucker’s attitude. See Liberty 9 (September 3,1892):l.

73. Liberty 10 (May 4. 1895):8.

74. Liberty 11 (June 29, 1895):4.

75. Liberty 11 (August 24, 1895):4.

76. Ibid., p. 6; and 11 (September 7, 1895):l.

77. Liberty 11 (August 24, 1895):7.

78. Liberty 11 (September 21. 1895):7. Badcock also stated disapprovingly that “if ownership rights are granted, . . .these rights would be salable, and a class of child-slaves and slave-markets would follow as a matter of course” (ibid.).For libertarian advocacy of the sale of guardianship rights, see Rothbard, “Kid Lib,” Egalitarianism as a Revolt, p. 93.

79. Liberty 11 (October 25, 1895):4.

80. Liberty 10 (November 17, 1894):4. Reprinted in Badcock, Slaves to Duty.

81. Liberty 9 (June 17, 1893):3.

82. Liberty 9 (May 5, 1894):8-9.

83. Liberty 13 (May 1897):7.

84. Bristow, “Defense of Liberty and Property,” p. 181. According to Bristow, “The resigning members-Donisthorpe and the Voluntaryist J. C. Spence and Greevz Fisher–held essentially the same view on the sex question as the anarchist rump: monogamous relationships easily terminated and unregulated by the state” (ibid).

85. Henry Seymour, “The Genesis of Anarchism in England,” in Joseph Ishill, ed., Free Vistas (Berkley Heights, N.J.: The Oriole Press, 1937). 2121.

86. Ibid., p. 122. Tucker did not consider Seymour a true individualist anarchist at the start of Seymour’s anarchist career. See Liberty 4 (May 1, 1886):4, and 4 (June 19, 1886):l.

87. Seymour. “The Genesis of Anarchism,” p. 128.Albert Tarn made several contributions to Liberty. See entry under “Tarn” in McElroy, Liberty,1881-1908.Some of the more interesting contributions are in Liberty 6 (March 16, 1889):l; 9 (June 24, 1893):l; and 12 (June 27, L896):7.

88. Glen Petrie, A Singular Iniquity: The Campaigns of Josephine Butler (New York: Viking Press, 1971), p. 94, quoting from Lujo Bassermann, The Oldest Profession (1967).

89. Ibid., “Prologue,” pp. 11-21.

90. Wilson, Province of the State, p. 273.

91. Bristow, “Defense of Liberty and Property,” pp. 61, 67.

92. Ibid., pp. 68-69.

93. Ibid., p. 75. Bristow adds, “As a founder of the Dialectical Society, Professor of Logic and Economics at Birkbeck College and the City of London College, colleague of Mill’s on the council of the Land Tenure Reform Association, and contributor to Bradlaugh’s National Reformer, Levy was a well-known figure in metropolitan and radical circles”(ibid.).

94. Ibid., p. 78.

95. Wilson, Province of the State, p. 273.The Individualist survived under the editorship of Henry Meulen.It was published continuously until his death in 1978.

96. Bristow, “Defense of Liberty and Property,” p. 61. Two of Levy’s pamphlets were titled: “Vivisection and Moral Evolution,” (no date) and “Our Duty to the Animal World.” (1913). In Vivisection and Personal Rights (London: P. S. King, 1902), Levy equates animal rights and personal rights: “This question of animals rights cannot be evaded by the Personal Rights Association; for they are inseparable from personal rights.If animals have no rights which it is our duty, as a political body, to defend, then every prosecution for cruelty to animals is an aggression on personal rights.We must, therefore, either condemn every effort of the State to prevent torture of any sentient being outside of the human race, or we must acknowledge that rights to not belong exclusively to our own sweet selves” (p. 15).Also see the concern of John Badcock in suppressing cruelty to animals inLiberty 11 (August 10, 1895):7-8.

97. Norbert C. Soldon, “Laissez-Faire on the Defensive: The Story of the Liberty and Property Defence League, 1882-1914,” (Ph.D. diss., University of Delaware, 19691, p. 253. Also see idem, “Laissez-Faire as Dogma: The Liberty and Property Defence League, 1882-1914,” in Kenneth D. Brown, ed., Essays in Anti-Labour History (Hamden, Conn.: Archon Books, 1974). pp. 208-21.

98. See Donisthorpe’s comments in Liberty 6 (November 23, 1889):l; and Bristow, “The Liberty and Property Defence League and Individualism,” Historical Journal 18 (1 975):773.

99. See Donisthorpe’s obituary of William Carr Crofts in Personal Rights, reprinted in Liberty 10 (March 9, 1895):7.

100. Bristow, “Defense of Liberty and Property,” p. 179.

101. Liberty 6 (January 25, 1890):4.

CARL WATNER

Baltimore, Maryland

In a letter to the New York Tribune on December 4, 1898, Benjamin Tucker (1854-1939) described himself as an Anarchist. “I was the first American–I may say the first Anglo-Saxon–to start (in 1881) an avowedly Anarchistic newspaper printed in the English language. I am still the editor, publisher, and proprietor of that paper. It is everywhere regarded as the pioneer and principal organ of modern individualist Anarchism. I either am, or have been, the publisher of the chief Anarchistic works in the English language. I am the author of the most widely-accepted English text-book of Anarchism. I have enjoyed the friendship, had the benefit of the instruction, and. have carefully studied the works, of those Americans from whom the Anarchists have largely derived their beliefs–Josiah Warren, Stephen Pearl Andrews, Lysander Spooner, and Colonel William B. Greene. I am the translator into English of some of the principal works of P. J. Proudhon, who was the first writer in any language to declare himself an Anarchist. I am acquainted, perhaps better than any other man, with the English-speaking Anarchists of the United States. It will be admitted then, I hope, that I speak by the card.” (359-3)*

Tucker’s Anarchist credentials were impeccable as he plainly stated. In August 1881, he started a “little fortnightly journal called Liberty. Its purpose was to contribute to the solution of the social problems by carrying to a logical conclusion the battle against authority . . . “[1]. This journal appeared more or less continuously under the guidance of Tucker, first in Boston, and then in New York, until 1908 when Tucker’s bookstore and composing room were destroyed by fire. In the words of Paul Avrich, Liberty was simply “the best Anarchist paper in the English language”.

The 403 issues of Liberty which appeared have been reprinted and made available by the Greenwood Reprint Corporation. They are a great source of information both to the historian and the philosopher. Here we can analyze the history of the individualist Anarchist movement, its reaction to contemporary events of the late 19th and early 20th Centuries, as well as view the actual ideological content and doctrinal changes occurring in the movement. To study Liberty is to touch practically every social question. (132-5) “. . . Liberty carried translations and articles from many of the most seminal thinkers of both Europe and America.”[2] While its subscription list probably never exceeded 1000, it had a world-wide circulation and impact, considering that it sparked individualist Anarchist movements in Russia and Australia, among other places.

Tucker made it clear in his first issue that his “journal will be edited to suit its editor, not its readers. He hopes that what suits him will suit them; but, if not, it will make no difference. No subscriber, or body of subscribers, will be allowed to govern his course, dictate his policy, or prescribe his methods. Liberty is published for the very definite purpose of spreading certain ideas, and no claim will be admitted, on any pretext of freedom of speech, to waste its limited space in hindering the attainment of that object. We are not afraid of discussion, and shall do what we can to make room for short, serious, and well-considered objection to our views.” (1-1) “The purpose of Liberty, boiled down to its ultimate essence, is the abolition of authority . . . . Liberty denies the authority of anybody’s god to bind those who do not accept it through persuasion and natural selection. Liberty denies the authority of anybody’s State to bind those who do not lend voluntary allegiance to it. Liberty denies the authority of anybody’s ‘public opinion’, ‘social custom’, ‘consensus of the competent’, and every other fashionable or scholarly despot, to step between the individual and his free option in all things.” (2-2)

As the proprietor and editor of Liberty, Tucker was responsible for its opinions and editorial content. While realizing that he was never the sole owner of Anarchism, Tucker did dominate his paper, and accordingly came to influence the Anarchist movement. However, he well realized that anarchism existed before he did and would continue to exist after he passed away. “I can interpret it only for myself”, he wrote. (327-3) Although gentlemanly and shy in his personal relations, Tucker was the “plumb line of plumb liners” in his editorial role. He tolerated no deviation from the straight and true path of Anarchy as he understood it. His intention as editor was to “win first the attention, and then the admiration and assent, of the most thoughtful thousand people in the world, though at the same time it may for the moment shock, horrify, prejudice, madden, and alienate all others . . . . ” (367-1) E. 0.Brown elaborated this point: “I have seen much in Liberty that I agreed with, and much that 1 disagreed with, but 1 never saw any cant, hypocrisy, or insincerity in it, which makes it an almost unique publication.” (370-7)

Tucker’s outlook and optimism are illustrated by relating one item which he saw fit to include in his first issue. Headlined, “The Penalty of Treason to Liberty,” it related the story told by Ariosto, in which a fairy, by some mysterious law of her nature, was condemned to appear at certain seasons in the form of a foul and poisonous snake. Those who injured her in the period of her disguise were forever excluded from the blessings which she bestowed when in her power. To those who befriended her, in spite of her loathsome aspect, she afterwards granted all their wishes and made them happy in every way. “Such a spirit is liberty”, concluded Tucker. “At times, she takes the form of a hateful reptile. She ‘grovels’, she hisses, she stings. But woe to those who in disgust shall venture to crush her. And happy are those who, having dared to receive her in her degraded and frightful shape, shall at length be rewarded by her in the time of her beauty and glory.” (1-4)

In order to fully appreciate Tucker and Liberty, one must have an understanding of how he and his readers understood the word Anarchism. “Anarchism means no government, but it does not mean no laws and no coercion. This may seem paradoxical, but the paradox vanishes when the Anarchist definition of government is kept in view. Anarchists oppose government, not because they disbelieve in punishment of crime and resistance to aggression, but because they disbelieve in compulsory protection. Protection and taxation without consent is itself invasion; hence Anarchism favors a system of voluntary taxation and protection.” (212-2) Tucker was one of the very first individuals in the world to advocate the idea “that defense is a service, like any other service”, and that such a service could and should be provided by private agencies supported by voluntary patronage. (104-4)

This advocacy was in turn based on a certain definition of government, namely “government has been defined . . . as the subjection of the ‘non-invasive’ individual to a will not his own.” (156-4) The State (or government) is in its very nature a compulsory institution to which all are forced to belong to and which all are compelled to support. (26-2) Liberty’s supporters were the sternest enemies of invasion of person and property. “We make war upon the State as the chief invader of person and property, as the cause of substantially all the crime and misery that exist, as itself the most gigantic criminal extant.” (25-2)

The starting point of the entire Anarchistic philosophy was the absolute sovereignty of every individual. (28-2) The only way to respect the sovereignty of the individual would be to refrain from invasion of every person’s body and justly acquired property. Tucker realized that criminals and invaders of person and property would remain, even in the absence of formal governments, but “Liberty’s position [was] that, of the really serious and important acts of invasion of individual sovereignty, at least nine-tenths are committed by organized State governments or through privileges granted by them, and that the governmental idea, with the State as its principal embodiment, is the efficient cause of almost all of our social evils.” (86-4) Thus Anarchism was not only a protest against every form of human invasion (94-5), but in particular against the aggression of organized government.

Liberty’s advocacy of Anarchism had both a positive and negative side. The negative side was simply the call for the abolition of politics. (25-2) Liberty proposed to abolish government and substitute in its place voluntary arrangements. “We offer every possible method of voluntary social union by which men and women may act together for the furtherance of well-being.” (27-2) Tucker carried this doctrine to its fullest extent, as he was not hound by political or cultural or social mores. Tucker and his supporters differed from all other 19th Century radicals in their conception of cooperation. These Anarchists distinguished themselves even from the Individualists, who believed that “cooperation for defense and protection should be compulsory, whereas the Anarchist believed] that cooperation should never be compulsory, and that no compulsion should ever be exercised upon the non-invasive individual.” (260-2) Although Tucker was likely at times to call himself a socialist, he always emphasized the voluntary aspect of socialism. His disagreement with the communists and socialists of other schools revolved around their economics as well as their conception of cooperation. ” . . . [T]heir Communism is another State, while my voluntary cooperation is not a State at all. It is a very easy matter to tell who is an Anarchist and who is not. Do you believe in any form of imposition upon the human will by force?” (94-4)

From the beginning of Liberty, Tucker placed emphasis on the rights of the individual and individual sovereignty. This natural rights approach may have been influenced by Lysander Spooner who at the commencement of Liberty was still living and contributing articles to it. Reminiscent of Spooner’s outlook, was the statement in an 1882 issue that “there is but one single kind of ‘legal’ freedom; and that is simply the ‘natural’ freedom of each individual to do whatever he will with himself and his property, for his body here, and his soul hereafter, so long as he does not trespass upon the equal freedom of any other person.” (24-2) In still an earlier issue was enunciated the cardinal right of all individuals to do anything and everything which they may chose voluntarily to do so long as it is done at their own cost. (7-2)

“Th[e] question of rights and obligations was thoroughly threshed out in Liberty in the year 1887.” (198-2) Although Tucker maintained that he had not changed his fundamental pinions since he had begun Liberty, it is obvious that by the late 1880s his defense of Anarchism had changed from one asserting a natural rights justification to one asserting the Stirnerite version of egoism. (201-4) By early 1888, Tucker was no longer defending property as a right, but rather claimed it to be only a social convention. (117-5) Having abandoned natural right as the basis of Anarchism, Tucker replaced it with the concept of equal liberty as the touchstone of his Anarchism. “It is true . . . that Anarchism does not recognize the principle of human rights. But it recognizes human equality as a necessity of stable society.” (126-4) ” . . . [T]he only compulsion of individuals the propriety of which Anarchism recognizes is that which compels invasive individuals to refrain from overstepping the principle of equal liberty. Now, equal liberty itself being a social convention (for there are no natural rights), it is obvious that Anarchism recognizes the propriety of compelling individuals to regard ‘one’ social convention. . . . Anarchism protects equal liberty . . . , not because it is a social convention, but because it is equal liberty, -that is, because it is Anarchism itself.” (123-5)

Tucker expressed his changed attitude as follows: “From the start [of Liberty] I have known that self-interest is the mainspring of conduct and that the ego is supreme. I had not, however, carefully thought out or even considered the bearing of this philosophy upon the question of obligation. I took society for granted and assumed the desire of man for society, and it was from this standpoint that I had loosely talked of natural rights. But Stirner’s book [The Ego and His Own] caused me to ask myself: If the individual does not wish society, is he under any obligation to act socially? And I no sooner asked it than I answered it in the negative. At no time have I answered it in the affirmative. . . . I have since [I8861 seen that my use of the word right in those days was entirely improper, and this, coupled with a steadily-clearing perception of the logic of egoism, is the only change my ethical opinions have undergone since I started Liberty.” (201-4)

In later years, Tucker exemplified his position by questioning the moralists (those asserting the natural rights philosophy and opposing his egoistical justification of Anarchism): “Why is one man bound to refrain from injuring another? That is the question which the moralists must answer. I know plenty of reasons why it is expedient for one man to refrain from injuring another. Therefore I advise him to refrain. But if my reasons do not commend themselves to his judgement; if my view of expediency does not coincide with his,–what obligation is there upon him to refrain? . . . I see no reason, as far as moral obligation is concerned, why one [man] should not subordinate or destroy the other. But if each of these men can be made to see that the other’s free life is helpful to him, then they will agree not to invade each other; in other words, they will equalize their existences, or rights to existence by contract. . . Before contract is the right of might. Contract is the voluntary suspension of the right to might. The power secured by such suspension we may call the right of contract. These two rights–the right of might and the right of contract–are the only rights that ever have been or ever can be. So-called moral rights have no existence.” (261-3) Tucker demanded to know what obligation, apart from expediency, there is upon man to refrain from aggressing against mother. (265-1) His point was that the obligation to refrain from aggression was universal, without exception, or it was nothing. The problem as he saw it was to justify the imposition of this obligation upon the man who chose to forsake human society or enjoyed social unrest and insecurity. Thus Tucker concluded that there are no rights except mights. (194-1) “Rights begin only with convention. They are not the liberties that exist through natural power, but the liberties that are created by mutual guarantee.” (328-4)

Fearless logician that he was, Tucker was never afraid to endorse his reasoning, regardless of where it led him. It was only on egoistic and utilitarian grounds–i.e. grounds of expediency–that he believed in equal liberty. (3204) On several occasions during the later years of Liberty Tucker was forced to concur in certain deviations from his earlier Anarchistic position based on non-invasion and respect for individual sovereignty. Thus he claimed that a woman who threw her baby into the fire was acting non-invasively, (321-1) and that in certain instances coercion of the non-invader was justified. Reasoning from his egoistic framework, Tucker denied that the thing fundamentally desirable was the minimum of invasion. For him, “the ultimate end of human endeavor [was] the minimum of pain. We aim to decrease invasion only because, as a rule, invasion increases the total of pain (meaning, of course, pain suffered by the ego, whether directly or through sympathy with others). But it is precisely my contention that this rule, despite the immense importance which I place upon it, is not absolute; that, on the contrary, there are exceptional cases where invasion–that is, coercion of the non-invasive lessens the aggregate pain. Therefore coercion of the non-invasive, when justifiable at all, is to be justified on the ground that it secures, not a minimum of invasion, but a minimum of pain. . . . [T]o me [it is] axiomatic–that the ultimate end is the minimum of pain.” (324-4) Thus Tucker asserted that coercion and invasion were justifiable in the case of a burning city, which can only be saved by blowing up the houses on a strip of territory inhabited by non-invasive persons who refuse to consent to such disposition of their property. (324-4) (310-5) According to Tucker, necessity and only necessity may excuse the coercion of the innocent, (308-4) and he readily admitted that there were relations between men and the land and of men to each other, where he would for the moment trample ruthlessly upon all the principles by which successful society must as a general rule be guided. (304-3)

Tucker held “that emergencies are liable to arise in the lives of men and of societies when all principles except that of self-preservation must be thrown to the winds; that there are moments when the continuance of individual life and social relations depends on the promptness with which we violate the very rules of conduct that in ordinary and normal times contribute most vitally to our well-being.” (339-4) In defending his position, Tucker declared that a critic’s answer amounted “in its conclusion to a statement that no evil can be as disastrous as an act of invasion; that justice should be done though the heavens fall, for a precedent of injustice would lead to a worse disaster than the falling of the heavens; . . . ” and that further discussion was hopeless. (341-4)

One final example will suffice to show that for Tucker, there were occasions when justice was not the supreme consideration. (341-4) Another of his critics propounded the situation of a drowning man agreeing to forego all his worldly goods in return for being saved from drowning. The critic demanded to know if under Anarchistic ethics such an agreement was enforceable. Tucker’s position was that such a contract was not enforceable, even though its non-enforcement was a violation of Anarchistic principle. Tucker’s conclusion was that “there is no obligation upon outsiders to enforce any contract, even though it be just, and that, when individuals associate themselves for defensive purposes, they will decide at the start what classes of just contracts it is advisable to enforce.” (341-4) Such men will decline to enforce the just contract of a drowning man.

Turning from Tucker’s ethics and philosophy of Anarchism, which were always and obviously a central part of Liberty, let us examine a few other themes which were taken up in his journal. During his early editorial years, Tucker expressed great interest in the activities of the social revolutionaries, both abroad and in the United States. The Russian and European Anarchist movement received both support and publicity from Liberty [3] Tucker wrote at the time of the Anarchist trial in Lyons, France in early 1883, “Anarchy knows no frontiers; it is a gospel of human brotherhood that spans oceans.” (33-2) During the first three years of Liberty, Tucker was a follower of many Anarchists of inter-national fame, such as Elisee Reclus, Peter Kropotkin, Michael Bakunin, and others of lesser note. As time wore on, particularly after the Haymarket affair in 1886, Tucker came to restrict his support of these revolutionaries who practiced “propaganda by deed.” His objection was not only to their violent methods but also to their support of authoritarianism.

Tucker illustrated this discrimination in his eulogy on Karl Marx which appeared in 1883, after Marx’s death: “For Karl Marx, the ‘egalitaire’, we feel the profoundest respect; as for Karl Marx, the ‘authoritaire’, we must consider him an enemy. . . . Proudhon was years before Marx [in discussing the struggle of the classes and the privileges and monopolies of capital]. . . . The vital difference between Proudhon and Marx [was] to be found in their respective remedies which they proposed. Man would nationalize the productive and distributive forces; Proudhon would individualize and associate them. Marx would make the laborers political masters; Proudhon would abolish political mastership entirely. . . . Man believed in compulsory majority rule; Proudhon believed in the voluntary principle. In short, Marx was an ‘authoritaire’; Proudhon was a champion of Liberty.” (35-2)

Tucker displayed basically the same attitude towards the Haymarket martyrs. Nearly all the contemporary violence of the Anarchists was commented on in Liberty. This included the assassination of President Garfield by Guiteau, the attempted killing of Carnegie’s associate, Frick, by Alexander Berkman, as well as the deeds of the revolutionaries abroad, especially in France and Russia. Tucker was not opposed to the use of force, but it was foolish in his opinion to “resort to it before necessity compels, . . . as a general thing, when force becomes necessary, the wiser way is to use as much as possible as promptly as possible; and, until it becomes necessary, there cannot be too little force.” (85-1) He generally considered violence to be inexpedient and an inappropriate way of achieving his goals. He realized that the downfall of one government, unless accompanied by a corresponding change in the ideas among the populace, would only result in the substitution of another government in its place. His goal was the destruction of the governmental idea, which could only be accomplished through the use of persuasion and reason. In the opinion of Victor Yarros, another writer for Liberty, “The practical abolition of the State would be a very easy matter, if the State ‘idea’ were once abolished in the ‘minds’ of a considerable number of people.” (113-8)

Regardless of the poor publicity generated by the revolutionaries, Tucker refused to compromise on his use of the word Anarchism or on his overall philosophy. He wrote, that “we believe that the most manly and effectual method of dealing with the State is to demand its immediate and unconditional surrender as a usurper, and to flatly and openly challenge its assumed right to forestall and crush out the voluntary associative government and regulation of individuals by themselves in all things.” (16-2) Tucker believed that the Land League Movement in Ireland had been a glorious and significant social force, arising from the fact that it developed as the result of spontaneous, voluntary actions. (20-2) Furthermore, the “No Rent Manifesto” could have been a stepping stone towards to “No Tax Manifesto.” Had the mass of Irishmen not swallowed the idea that society is impossible without a State, they might have been successful. Passive resistance (ignoring the laws without causing direct harm to anyone) and resistance to taxation were Tucker’s two main methods of achieving Liberty in his own time. Although the distance (the eventual triumph of Liberty) might be great, the point for Tucker was that the journey had begun. (51-7)

Tucker could not be considered a utopian, even though he envisioned a stateless, non-monopolistic society. He clearly understood that Anarchism would not solve all of mankind’s troubles. “[T]here are some troubles from which mankind can never escape. . . . [The Anarchists] never have claimed that liberty will bring perfection; they simply say that its results are vastly preferable to those that follow authority. . . .As a choice of blessings, liberty is the greater; as a choice of evils, liberty is the smaller. Then liberty always, say the Anarchists. No use of force except against the invader; . . . . ” (154-4)

Children are probably always a problem in any society, and that was no less true of Liberty’s time and audience than for ours. The subject of children under Anarchy, and of parental-child responsibility aroused no serious controversy in Liberty until 1895. In 1890, Tucker had chosen to reprint a short, pithy article taken from Freethought, which apparently echoed his own sentiments at the time: that parents have a certain lien upon their children, at least as long as the children lean on them. (160-3) Later pronouncements emphasized that the child, like the adult, has no right to life at all, only the immunity from assault or invasion which all human beings are due. (235-2) In May 1895, Tucker reprinted the letter of an English Individualist, J. Greevz Fisher, which dealt with the question of parental responsibility for the support of the children. The conclusion of both Fisher and Tucker was that, “we must not interfere to prevent neglect, but only to repress positive invasion,” and that “no person, parent or not, may be rightfully compelled to support any helpless being, of whatever age or circumstance, unless he has made that being helpless by some invasive act.” (312-5&8)

Some months later, Tucker reconsidered his position and came to the conclusion that since the mother owns her children, parental invasion is not to be prohibited. Thus, as we have seen, a mother who throws her baby into the fire is not committing an aggression, since she is only handling her property in a way that she sees fit. Tucker maintained that the change which his opinion underwent consisted “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, since third parties have not to consider the danger to organisms that are outside the limits of social protection.” (320-5)

The debate about this issue continued for many numbers of Liberty and ended ultimately by Tucker converting all of his critics but one. J. William Lloyd broke with Tucker and Liberty over this issue and refused to associate any longer with those calling themselves Anarchists. Lloyd disputed Tucker’s contention that children were property, while he (Lloyd) maintained that “Each human being owns himself” and that “no human being owns another”. (325-7) According to Tucker, the mother who uses force upon her child invades no body at all. Tucker’s editorial point of view was not clouded by any preconceived notions or any sentimentality. He was quite willing to follow the consequence of his reasoning so long as he could find no flaws in his chain of logic. (322-5) As harsh or heartless as his doctrine may seem, he cautioned that he had the best interest of babies and children at heart as he believed that the observance of his principles would secure to children on the whole greater happiness than they can ever enjoy in any society neglectful of these principles. (320-5)

Another lively topic of interest, which resulted in lengthy discussion, concerned the Anarchistic acceptance of copyright and patents. In the early years of Liberty, when Tucker reviewed Spooner’s “A Letter to Scientists and Inventors, on the Science of Justice, and their Right of Perpetual Property in their Discoveries and Inventions,” Tucker had expressed his disapproval of Spooner’s thesis. He could conceive of nothing more unreasonable than granting to any one the right to monopolize a fact of nature. (47-1) Four years later, in 1888, Tucker commented on the position that Henry George had taken regarding patents and copy-right. The two agreed that patents had no validity but parted company over the legitimacy of copyright; George defending them and Tucker denying them on the basis that discovery can give no right of ownership. (128-4) Later when international copyright agreements became prominent political discussion, Liberty picked up this theme again. Tucker’s opinion was that copyright, in any form and under any limitation, was an injustice. According to Tucker, “there [was] no more justification for the claim of the discoverer of an idea to exclusive use of it than there would have been for a claim on the part of the man who first ‘struck oil’ to ownership of the entire oil region or petroleum product. . . . The central injustice of copyright and patent law is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today, although some other man or men might, and in many cases very probably would, have discovered it tomorrow.” (173-4) “[F]rom the justice and social necessity of property in concrete things we have erroneously assumed the justice and social necessity of property in abstract things,–that is,–of property in ideas,–with the result of nullifying to a large and lamentable extent that fortunate element in the nature of things, in this case not hypothetical, but real,–namely, the immeasurably fruitful possibility of the use of abstract things by any number of individuals in any number of places at precisely the same time, without in the slightest degree impairing the use thereof by any single individual.” (366-3) “The ‘raison d’être’ of property is found in the very fact that there is no such possibility,–in the fact that it is impossible in the nature of things for concrete objects to be used in different places at the same time.” (366-3)

Perhaps the most interesting part of this copyright-patent controversy was that one of Liberty’s subscribers offered a quotation from Spooner’s Law of Intellectual Property, which resulted in a great outburst from Tucker. The correspondent, A. H. Simpson, rightfully claimed that Spooner had linked together the argument for property in ideas to the justification for property in material objects and land. Tucker called Spooner’s work on Intellectual Property “positively foolish because it is fundamentally foolish,–because, that is to say, its discussion of the acquisition of the right 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 any one can take possession of first, becomes absolutely his property.’ In interpretation of this, Mr. Spooner defines taking possession of a thing as the bestowing of valuable labor upon it, such, for instance, in the case of land, as cutting down the trees or building a fence around it. What follows from this? Evidently 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 the 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 extract.Now, if this be true, what becomes of the Anarchistic doctrine of occupancy and use as the basis and limit of land ownership?” (180-4)

Tucker was alert enough to understand the implications of Spooner’s argument, and was quite independent enough to reject them. In fact, Tucker claimed that he had taken issue with Spooner on this very point, after he had read Spooner’s pamphlet on the Irish and English landlord question. “In that pamphlet [Revolution, a Reply to Lord Dunraven] 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 is plainly stated,–so plainly that I took issue with Mr. Spooner on this point when he had asked me to read the manuscript before its publication. I then asked him whether if Dunraven 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 to and 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.” (182-6)

As the foregoing comments indicate, Tucker solved the ‘land question’ with the doctrine of occupancy and use as the sole basis and limit of land ownership. This doctrine was based upon the teachings of Josiah Warren who advocated that natural wealth is not property at all and that neither the State nor the individual can set a price upon it without violating the first principle of commercial justice, that cost is the equitable limit of price. (28-2) The Anarchists of this school were definitely against the payment of rent by tenants (the actual occupiers of a given piece of land) to a landlord. Their case was intertwined with their advocacy of removing the restrictions from the business of banking as well as depriving property in land of legal sanction and title. (39-1) The doctrine of occupancy and use evolved from the mid-19th Century theories of land reformer George Henry Evans, who enunciated the principle that each man shall possess the ground he can use and no more. (126-5)

The basis of all the controversy among the Anarchists (and with other social reformers of their time, especially Henry George and the Single-Taxers) was essentially about determining the justness of land holding. Auberon Herbert, the English voluntary taxationist and a contributor to Liberty, insisted on treating the land question as if it were simply a problem of buying and selling, and loaning and borrowing. Tucker cited another English critic of Herbert, who noted, “When we come to the question of the ethical basis of property, Mr. Herbert refers us to ‘the open market’. But this is an evasion. The question is not whether we should be able to sell or acquire ‘in the open market’ anything which we rightfully possess, but how we come into rightful possession.” (172-7)

Mr. Tucker’s most relentless critic (although eventually a convert to the cause) of the occupancy and use doctrine was Stephen Byington. The Anarchistic doctrine of occupancy and use was always expounded in a general sort of way and never really dealt with serious details. The Anarchist doctrine consisted basically of the following provisions as outlined by Tucker: “Occupancy and use is the only title to land in which we will protect you; if you attempt to use land which another is occupying and using, we will protect him against you; if another attempts to use land to which you lay claim, but which you are not occupying and using, we will not interfere with him; but of such land as you occupy and use you are the sole master, and we will not ourselves take from you, or allow anyone else to take from you, whatever you may get out of such land.” (252-3) Tucker further informed Byington 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 use; and any contract based upon or involving such withholding is lacking in sanctity or legitimacy as a contract to deliver stolen goods.” (32’1-4) Byington pushed Tucker to answer what would happen to people desirous of renting a room or a building for only a short time, or what would happen to the ownership of buildings when occupiers and users of the land upon which they were built changed, or how vacationers would secure their premises while away? Tucker considered these questions matters of administrative detail, unworthy of discussion unless the attempt be to show that the theory of occupancy and use was unworkable. (331-4)

According to Tucker, the last user and occupier of a given piece of land would have to remove all of his personal property (unless specifically sold to the next occupier-user), otherwise he would lose control of it. “The man who persists in storing his property on another’s premises is an invader, and it ‘is’ his ‘crime’ that alienates control of his 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.” (331-4)

For Tucker and his band of 19th Century Anarchists there were four fundamental monopolies, i.e. four modes by which governments granted legal privileges to the few at the great expense to the many. These four monopolies were the land monopoly, the tariff monopoly, the banking monopoly, and the patent and copyright monopoly. All but the tariff question received prominent coverage in Liberty. The tariff question was very clear cut and there was little controversy among Anarchists on this point. They all believed in free trade without restriction. The question of the banking monopoly was not so simple, as the Anarchists differed among themselves, as well as with their opponents, on economic theory. Discussions were carried on about economic problems relating to money and banking, namely, the nature of capital and interest, the basis of the standard of value for money, and the significance of free banking theory to Anarchist doctrine.

In order to understand the Anarchist objection to government money, it is first necessary to distinguish between their political objections and their economic objections. Politically, they were against government compulsion and therefore were against governmental prohibition of any voluntary currency or arrangements that the people might make for and among themselves. The Anarchists rejected the Greenback movement primarily for this reason: “It is greenbackism that Libertyobjects to, for its first and fundamental principle . . . is that it shall be a criminal offense for any individual or association to issue currency for circulation, and that there shall be no money except that issued by the government. . . . Greenbackism is money monopoly in its most extreme form. Free money, on the other hand, means free trade carried into finance, unlimited competition in the business of ‘making money’, and as a result, the utter rout of inferior and usurious currencies by the virtues of the cheapest and the best.” (37-1) Again, politically speaking, the Anarchists objected to laws relating to interest or usury legislation. They continuously opposed “the claim that one has a moral right to take usury, but advocate no method of abolishing it save the removal of all restrictions preventing the free action of natural principles. To attempt to suppress usury by statute is outrageous because tyrannical, and foolish because ineffectual.” (6-1)

Most of Liberty’s adherents believed that the governmental limitations placed on the amount of currency issued and on the choice of media of exchange (generally being restricted to gold and silver) were the cause of financial depressions as well as the cause that interest was charged on loans of money. In a criticism of William Graham Sumner, a Liberty correspondent put forth the proposition that “Interest has no existence in Nature, but is solely due to monopoly, whose parent the State alone is.” (78-4) There were many other discussions in Liberty relating to the value of money and the nature of capital and interest, which generally reduced themselves to the claim that any increase in the supply of money (which would be the result of a regime of free banking) would confer a social benefit and would lead to the disappearance of interest.[4]

Although their economic arguments have not stood the test of time, the political objections to government money were and still are quite valid. Free banking and free money meant the utter absence of restriction upon the issue of all money not fraudulent (80-4) and this was considered to be a cardinal doctrine of Anarchism. (314-5) Tucker was a supporter of the concept of mutual banking, as outlined both by P. J. Proudhon, and his own friend and mentor, Colonel William B. Greene (author of Mutual Banking), by which the monetization of all marketable wealth was made possible. Tucker’s position was that free banking would lead to mutual banking, and that this could only come about through absolute free competition in banking. (314-5 and 69-4) It was Tucker’s belief that mutual banking would be the single greatest step that could possibly be taken in the direction of emancipating labor from poverty. No single liberty was as necessary as the liberty of banking. (314-5)

Liberty’s concern with social unrest and labor was evinced by its discussion of boycotts, unions and the strike. As early as 1886,Tucker elaborated that “any individual may place any condition he chooses, provided the condition be not in itself invasive, upon the doing or not doing of anything which he has a right to do or not do; but no individual can rightfully be a party to any bargain which makes a necessarily invasive condition incumbent upon any of the contracting parties. From which it follows that an individual may rightfully ‘extort’ money from another by ‘threatening’ him with certain consequences, provided those consequences are of such a nature that he can cause them without infringing upon anybody’s rights.” (85-1) On December 3, 1887, Liberty declared; “A man has a right to threaten what he has a right to execute. The boundary-line of justifiable boycott is fixed by the nature of the threat used.” (113-4) Tucker boasted that “prior to these declarations, so far as [he knew], the true foundation and limitation of the right to boycott had never been laid down.” (369-2) In this connection it is also interesting to note that Liberty not only questioned the law against blackmail, but also the laws against libel and slander. Victor Yarros, a close Tucker associate during many of the Liberty years, was “inclined to take the position that all speech ought to be free, and that there can be no invasive quality in mere speech.” (312-2) As a person does not own his own reputation, it merely being a measure of the view held of him by others, then, regardless of the truth or falsity of an alleged libel or slander, no speech, in and of itself, can be invasive. Therefore all libel and slander laws ought to be abolished. (312-2)

Continue Article….

CARL WATNER

Baltimore, Maryland

Liberty truly touched on nearly all of the pressing social questions of its era. Space was devoted to articles about free love, marriage and divorce, and sexual relations among men and women. Even the woman suffrage movement came under attack: “Women are human beings, and-consequently have all the natural rights that any human beings can have. They have just as good a right to ‘make laws’ as men have, and no better; AND THAT IS JUST NO RIGHT AT ALL.” (22-4) Mormon polygamy, pornography and postal censorship were also discussed. The Chinese immigration issue was mentioned at times. Freethought was always advocated and the tyranny and cultism of religion nearly always denounced. Tucker proudly reprinted in Liberty and his private press the English Anarchist classics, such as Spooner’s Natural Law, Letter to Thomas Bayard, and A Letter to Grover Cleveland, Auberon Herbert’s A Politician in Sight of Haven, Edmund Burke’s Vindication of Natural Society, Stephen Pearl Andrews’ Science of Society and his discussion of Love, Marriage, and Divorce, as well as quoting excerpts from such writers as Nietzsche, Proudhon, and Stirner. Tucker also made Liberty serve as a forum for publishing and publicizing what he called “advanced literature”, by which he meant “the literature which, in religion and morals, leads away from superstition, which, in politics, leads away from government, and which, in art, leads away from tradition”. (391-4)

Tucker was ambitious and promoted many literary ventures alongside his Anarchist journalism. He had agents in different parts of the world selling Liberty and his other literary wares. He had occasional foreign correspondents, such as Vilfredo Pareto, George Bernard Shaw, and John Henry Mackay, submit their evaluations of Anarchist developments to Liberty’sreaders. He maintained especially close contact with the English Individualist-Anarchist movement and carried on extensive correspondence with the main English figures, such as Auberon Herbert, Wordsworth Donisthorpe, John Badcock, J. H. Levy, and J. Greevz Fisher Other American associates and correspondents of Liberty, such as Henry Appleton, James L. Walker, Joseph Labadie, Victor Yarros, Stephen Byington, Alan and Florence Kelly, John Kelly, Gertrude Kelly, George and Emma Schumm, Francis Tandy, Henry Cohen, and J. Wm. Lloyd formed the often changing nuclei of Tucker’s circle.

Among Tucker’s other notable projects were the publication of Instead of a Book in 1893 and the publication of Liberty in German for a short time. He promoted the formation of an Anarchist Letter Writing Corps under the auspices of Byington and sold and printed sheets filled with Anarchist slogans. He published such books as Zola’s Modern Marriage, Eltzbacher’s Anarchism, and not coincidentally Stirner’s The Ego and His Own. The appearance of this later book was, in Tucker’s opinion, the most notable contribution on behalf of Anarchism that he had made in his 30-year career. (397-1) Stirner was one of the three great Anarchists in 19th century literature, according to Tucker; the other two being Proudhon and Ibsen. He constantly strived to call attention to all three both in Liberty and wider literary circles. (393-11) His New York bookstore eventually came to house a large collection of literature that made for “Egoism in Philosophy, Anarchism in Politics, and Iconoclasm in Art.” (399-2)

Yet for all his boldness and greatness, Tucker and Liberty still leave something to be desired. Did Tucker and his editorial columns in Liberty present a true and consistent version of Anarchy? Of course it is easy to criticize doctrine nearly a century old, but there is much in Tucker that is still valid, as well as much that is still as wrong as the day it was published. In spite of Tucker’s eventual deviations, his life-long emphasis on individual sovereignty and the non-invasive individual is well-founded.

As Libertarians and Anarchists today we might accept the philosophy of egoism that Tucker came to espouse (namely, that might makes right in the absence of mutual agreement). Tucker, himself, recognized the law of equal liberty as being the essence of Anarchism; but his own defense of this social convention seems circular, for it amounts to the statement that we are Anarchists because we are Anarchists. (123-5) Or else we might adopt an alternative defense of Anarchism, such as one which has been outlined by Murray Rothbard in his writings and which hinges on the twin axioms of self-ownership (the absolute right of each person to own his or her own mind and body) and homesteading (the absolute right of each person to own previously unused natural resources which they have in some way occupied or transformed). Tucker’s main challenge to the moralists was to demand to know why one is bound not to injure or invade another. What obligation exists, in the absence of any mutual agreement, to refrain from initiating violence? I think the answer is primarily logical and epistemological in nature. Invasion violates the axioms of self-ownership and homesteading. The invader clearly acts on the axiom that he controls his own life, yet in coercing others he plainly denies it. The resort to violence is a confession of imbecility. Invasion is anti-life and the invader, under the moralist’s theory, loses his own rights (to life and property) to the extent that he has committed an aggression. Thus to answer Tucker, the obligation to refrain from initiating violence is found in the real world around us. Anyone who acts so as to deny the validity of these axioms must sooner or later fail and suffer disaster. As Tucker himself wrote, early in his career, “It is better to suffer great inconveniences than the evils engendered by the violation of individual rights.” (37-4)

Of course, Tucker came to disagree with this position. He called that person who would enforce the drowning man’s contract a person “with justice on the brain, a man who would do justice though the heavens fall.” (344-4) We can only speculate as to whether his rule of expediency would succeed or not, but as applied to individual lives we can make a comparison, which however may be an unfair one. Tucker retired to Europe soon after the fire of 1908 and spent the next 30 years of his life mostly apart from the Anarchist movement. In fact we might say that while Liberty existed Anarchism blazed in glory, but when Tucker retired the flames soon returned to embers. By contrast, Lysander Spooner, definitely a moralist and natural right defender of Anarchism and therefore an opponent of Tucker’s, became steadily more radical and libertarian as he grew older. Each person must be left to judge the effect of historical circumstances on these two individuals, hut their differing philosophies of Anarchism must also be taken into consideration when viewing the outcome of their lives.

To evaluate Tucker in terms of current day libertarian thinking, we would have to say this: We concur with Tucker that no living person owes any other living person any thing in the absence of voluntary agreement; hut tile obligation to refrain from initiating violence is not a positive duty. It is a negative one. It is something which we should not do, not something we should do. We can stand by and see a man murdered or a woman raped (170-4); but we cannot claim that there are times when it is necessary for the Anarchist to become Archist, and to abandon the guiding rule of his life and to coerce the noninvasive individual. (307-3)

NOTES

*All parenthetical footnotes refer to Liberty by Whole Number (issue number) and then page number.

I. Benjamin R. Tucker, Instead of a Book (New York: Haskell House, 1969), p. ix.

2. William 0. Reichert, Partisans of Freedom (Bowling Green, OH: Bowling Green University Popular Press, 1976), p.146.

3. James J. Martin, Men Against the State (Colorado Springs, CO: Ralph Myles, 1970), p.220.

4. Murray N. Rothbard, “The Spooner-Tucker Doctrine: An Economist’s View,” in Egalitarianism as a Revolt Against Nature, and Other Essays(Washington, DC: Libertarian Review Press, 1974), pp.129-33.