Spooner vs. Liberty
by Carl Watner
(This article first appeared in THE LIBERTARIAN FORUM, Volume 7, No. 3, March 1975) 
 

   Recently our Editor has published an essay entitled "Justice and Property Rights." The main theme of his article is first, to demonstrate that libertarians must have a means, independent of the State, to determine the rightness or wrongness of property holdings, and secondly, to furnish us with such a theory of proprietary justice. His program is based on two fundamental premises: "(a) the absolute property right of each individual in his own person, his own body; this may be called the right of self-ownership; and (b) the absolute right in material property of the person who first finds an unused material resource and then in some way occupies or transforms that resource by the use of his personal energy. This might be called the homestead principle. . ."[1] These same premises, in one form or another, were bandied about by the 19th Century native American individualist anarchists. Since today's libertarians are more or less their direct descendants, it will be enlightening to examine their disputes about the homesteading and self-ownership axioms.  

   Probably the two most famous of the American anarchists of the last half of the 19th Century were Benjamin Tucker and Lysander Spooner. Fortunately for US, Spooner's writings have been preserved and reprinted. Although Tucker was not a book writer, his thought has been carried down to us through his writings in his periodical LIBERTY (1881- 1908). As we will see, some of their ideas are yet in accord with our contemporary libertarian thought. Although Murray Rothbard has seen fit to criticize Spooner and Tucker in his essay, "The Spooner-Tucker Doctrine from the Point of View of an Economist," in fact, much of Spooner's thinking on land titles was actually in accord with the program Dr. Rothbard advocates.[2]

   

   Spooner defended unlimited private land ownership and grounded his support of this theory on the homesteading axiom: "The right of property in material wealth is acquired, . . .in one of these two ways, viz.: first, by simply taking possession of natural wealth, or the productions of nature; and, secondly by the artificial production of other wealth. . . The natural wealth of the world belongs to those who first take possession of it. . . There is no limit, fixed by the law of nature, to the amount of property one may acquire simply by taking possession of natural wealth, not already possessed, except the limit fixed by (a person's) power or ability to take such possession, without doing violence to the person or property of others."[3] Spooner would have definitely agreed with Rothbard, that ". .once a piece of land passes justly into Mr. A's ownership, he cannot be said to truly own that land unless he can conveyor sell the title to Mr . B, and to prevent B from exercising his title simply because he doesn't choose to use it himself but rather rents it out vo1untarily to Mr. C, is an invasion of B's freedom of contract and of his right to his justly-acquired private property."[4]  

   Spooner had expressed his ideas on land ownership in his LAW OF INTELLECTUAL PROPERTY (1855) and in his pamphlet, REVOLUTION: A REPLY TO 'DUNRAVEN' (1880). Tucker took him to task in LIBERTY: "I call Spooner's work on 'Intellectual Property' positively foolish because it is fundamentally foolish, --because, that is to say, its discussion of the acquisition of property starts with a basic proposition that must be looked upon by all consistent Anarchists as obvious nonsense. I quote this basic proposition. 'The natural wealth of the world belongs to those who first take possession of it. . . So much natural wealth, remaining unpossessed, as anyone can take possession of first, becomes absolutely his property.' "[5] Tucker charged Spooner with being a defender of unlimited land ownership since Spooner's proposition would allow that ". . .a man may go to a piece of vacant land and fence it off; that he may then go to a second piece and fence that off; then to a third, and fence that off; then to a fourth, a fifth, a hundredth, a thousandth, fencing them all off; that, unable to fence off himself as many as he wishes, he may hire other men to do fencing for him; and that then he may stand back and bar all other men from using these lands, or admit them as tenants at such rental as he may choose to exact."[6] In these circumstances, Tucker asked: "What becomes of the Anarchistic doctrine of occupancy and use as the basis and limit of land ownership'?”[7] 

   Tucker was a great critic of the land ownership system existing in the 19th Century. Absentee land ownership presented a serious problem in Ireland. Due to the agitation of the "No-Rent Movement" and the Irish Land League and the publicity of the ideas of Henry George, the subject of land ownership was very much a topic of public concern. Tucker believed that the occupancy and use theory of land holding solved the problem of justice in land ownership. The essence of the theory was that only actual users or possessors of the land (i.e., the Irish tenants) could be considered its owners. Occupancy and use as the basis for land ownership would free for use all land not actually being occupied by its owners. Thus landlords would cease to exist, as would all renting or leasing of real property, since the absentee landlord could claim no title or control over his unoccupied property. Spooner was quite critical of this doctrine: in fact he labeled it communism. The premise of any argument denying property rights in any form is communism. ". . .There is, therefore, no middle ground between absolute communism, on the one hand, which holds that a man has a right to lay his hands on any thing, which has no other man's hands upon it, no matter who may have been the producer; and the principle of individual property, on the other hand, which says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor, whether he retains them in his actual possession or not.”[8]

   

   Tucker believed that "a man cannot be allowed, merely by putting labor, to the limit of his capacity and beyond the limit of his personal use, into material of which there is a limited supply and the use of which is essential to the existence of other men, to withhold that material from other men's uses; and any contract based upon or involving such withholding is as lacking in sanctity or legitimacy as a contract to deliver stolen goods."[9] Under Tucker's theory, if "a man exerts himself by erecting a building on land which afterward, by the principle of occupancy and use, rightfully becomes another's, he must, upon demand of the subsequent occupant, remove from this land, the results of his self-exertion, or, failing to do so, sacrifice his property rights therein. The man who persists in storing his property on another's premises is an invader and it is his crime that alienates control of this property. He is 'fined one house,' not for 'building a house and then letting another man live in it,' but for invading the premises of another."[10] Thus Tucker admitted that homesteading, in the form of original possession or self-exertion furnished no basis for a continuing claim to land ownership, after the homesteader left the land. To further illustrate his differences with Spooner, Tucker related a conversation that he had with Spooner concerning the rightfulness of the Irish rebellion against absentee landlords: "Mr. Spooner bases his opposition to Irish and English landlords on the sole ground that they or their ancestors took their lands by the sword from the original holders. This he plainly stated, -- so plainly that I took issue with Mr.. Spooner on this point when he asked me to read the manuscript (REVOLUTION) before its publication, I then asked him whether if Dunraven (the absentee landlord) or his ancestors had found unoccupied the very lands that he now holds, and had fenced them off, he would have any objection to raise against Dunraven's title and to leasing of these lands. He declared emphatically that he would not. Whereupon I protested that his pamphlet, powerful as it was within its scope, did not go to the bottom of the land question."[11] 

   Much of Tucker's concern with the land problem was based on his apprehension of the monopoly problem. He is well known for his four-pronged attack on monopolies: land, banking, tariff, and copyright and patent. Tucker feared that the right of contract would be carried to an illogical extreme: ". . . It would be possible (under a regime of unfettered freedom of contract in land) for an individual to acquire, and hold simultaneously, virtual titles to innumerable parcels of land, by the merest show of labor performed thereon; . . . (and) . . . we should be forced to consider . . . the virtual ownership of nearly the entire earth by a small fraction of its inhabitants …"[12] Analogous to his position on land ownership, Tucker also attacked the literary monopolization of ideas based on copyright Spooner was a consistent defender of property in all forms and claimed for inventors and authors a perpetual copyright in their work. It is plain that neither could agree until their theories of ownership were harmonized, and both either adopted or rejected the homesteading principle.  

   The question over land ownership and the homesteading principle was not the only controversy carried on in the pages of LIBERTY. Equally interesting is the letter and editorial writing concerning the self-ownership axiom which took place under the guise of discussing the rights of parents and children. Originally the question began as whether parents should he legally responsible for abuse and neglect of their children. Tuckers initial conclusion was that we must not interfere to prevent neglect of the child, but only to repress positive invasion.  

   However, Tucker, having reconsidered his opinion, resolved that ". . . the change then which my opinion has undergone consists simply in the substitution of certainty for doubt as to the non-invasive character of parental cruelty -- a substitution which involves the conclusion that parental cruelty is not to be prohibited. . ."[13] Tucker's opinion is grounded on the fact that he views the child as the property of the mother . Children, in Tucker's estimation, belong in the category of things to be owned, rather than as being owners of themselves. However he does note that the "child differs from all other parts of that category (of things to be owned) in the fact that there is steadily developing within him the power of self-emancipation, which at a certain point enables him to become an owner instead of remaining part of the owned."[14]  Tucker saw ". . . no clearer property title in the world than that of the mother to the fruit of her womb, unless she has otherwise disposed of it by contract. Certainly the mother's title to the child while it remains in her womb will not be denied by any Anarchist. To deny this would be to deny the right of the mother to commit suicide during pregnancy, and I never knew an Anarchist to deny the right of suicide. If, then, the child is the mother's while in the womb, by what consideration does title to it become vested in another than the mother on its emergence from the womb pending the day of its emancipation?"[15]  

   Tucker clearly refused to invoke the self-ownership axiom towards children, at least until they had reached the age of being able to contract and provide for themselves. In the meantime, he recognized the right of the mother to throw her property into the fire. "I answer that it is highly probable that I would interfere in such a case (as a mother throwing her infant into the flames). My interference no more invalidates the mother's property right in the child than if I prevent the owner of a Titian painting from destroying it. If I interfere in either case, it is only as an invader and I would have to be prepared to suffer the consequences."[16] According to his logic "the outsider who uses force upon the child invades, not the child, but its mother, and may be rightfully punished for doing so. The mother who uses force upon her child invades nobody. . . To be consistent, I must convict a man of murder in the first degree who kills a father in the act of killing his child."[17]

   

   One of Tucker's critics realized that Tucker could not be attacked until the concept of contract as the ethical basis of anarchism was overthrown. Said this critic, "I do not accept contract as the ethical basis of Anarchism in the first place, and, in the second, do not regard children as the property of anybody. . . I base my anarchism on Natural Right. . . Perhaps no Anarchist will deny the right of the mother to commit suicide during pregnancy, but I do deny it after the embryo becomes a human being. The mother has a right to kill herself, but no one else."[18] "In my category of the owners and the owned I state it thus: Each being owns himself = No human being owns another ."[19] Of course, we recognize this as a reformulation of the self-ownership axiom.  

   For Tucker, rights only begin as a social convention. Rights are liberties created by mutual agreement and contract. He defended his concept of self-emancipation by stating that “any child capable of declaring to the association's (an anarchistic enforcement agency) officers its desire for release from its owner that it may thereafter either care for itself or entrust itself to the care of persons more agreeable to it thereby proves the presence in its mind of the idea of contract. . . From the moment that a child makes a deliberate declaration of this character it should cease to be property and should pass into the category of owners."[20] Tucker refused to see any alternative to his own position. "If we take the other course and admitting, that the child has the possibilities of the man, declare that therefore it cannot be property, then we must also for the same reason, say that the ovum in the woman's body is not her property, . . ." and thus being made to conceive when she is raped, she thereby loses her right to commit suicide.[21] Tucker failed to realize that no human "being has a right to live, unbidden, as a parasite within or upon some person's body[22]  He refused to view the fetus as a possible invader of the mother's body, since it was already her property to do with as she pleased. Consequently any invasive treatment of the child was not wrong since it was the mother's property.  

   The foregoing narrative of these two disputes, between Spooner and Tucker over land ownership, and between Tucker and his critics concerning property rights in children, should hold our strong interest. Here is one reason why a theory of justice in all forms of property is necessary. If libertarians cannot settle on such a theory of justice, a libertarian society will be disrupted by such disputes.  Similarly if no such theory of justice is arrived at, it will be impossible for libertarians to consistently attack our present governmental system. 

   

Footnotes 

1- Murray N. Rothbard, EGALITARIANISM AS A REVOLT AGAINST NATURE AND OTHER ESSAYS, p. 58.

2 - Ibid., p. 128.

3 - Lysander Spooner, THE LAW OF INTELLECTUAL PROPERTY, pp. 21-22.

4 - Rothbard, op. cit., p. 128.

5 - LIBERTY (March 21, 1891) Whole No. 180, p. 4.

6 - Ibid.

7 - Ibid.

8 - Spooner, op. cit., p. 88.

9 - LIBERTY (January 25. 1896) Whole No.331, p. 4.

10 - Ibid.

11 - LIBERTY (April 18, 1891) Whole No. 182, p. 6.

12 - LIBERTY (February 1897) Whole No. 350, p. 4.

13 - LIBERTY (August 24, 1895) Whole No. 320, p. 4.

14 - LIBERTY (June 29, 1895) Whole No.316, p. 3.

15 - LIBERTY (August 24, 1895) Whole No.320, p. 4.

16 - LIBERTY (September 7, 1895) Whole No.321, p. 1.

17 - LIBERTY (September 21, 1895) Whole No.322, pp. 5, 8.

18 - J. Wm. Lloyd, LIBERTY (September 21, 1895) Whole No.322, p. 6.

19 - LIBERTY (November 2, 1895) Whole No.325, p. 7.

20 - LIBERTY (November 2, 1895) Whole No.325, p. 5.

21 - LIBERTY (December 14., 1895) Whole No.328, p. 5.

22 - Murray N. Rothbard, FOR A NEW LIBERTY, p. 121.