The 19th-century individualist anarchist Benjamin Tucker called Lysander Spooner our Nestor, a Greek name denoting wisdom. The 20th-century libertarian Murray Rothbard referred to Spooner as the last of the great natural rights theorists … the last of the Old Guard believers in natural rights.
Natural-rights or natural-law theory, as espoused by Spooner, is based on the idea that justice and just laws are inherent in nature in the nature of man and of reality. Thus, rights can be discovered and they can be codified through documents such as the Constitution. Rights cannot be created by man or by human agencies such as government. Rather they emerge through reason and in the process of resolving social conflicts. For example, the idea of self-ownership that every person has a natural jurisdiction over his own body emerged as a resolution to the conflict over slavery in America.
The modern reader knows Spooner from the reprints of his work. Many of them include a photograph that reflects a sense of the inner man. The photo echoes a description Tucker once offered of his mentor. He wrote,
… A visitor at the Boston Athenaeum Library … might have noticed … the stooping figure of an aged man, bending over a desk piled high with dusty volumes of history, jurisprudence, political science, and constitutional law…. Had the old man chanced to raise his head for a moment, the visitor would have seen, framed in long and snowy hair and beard, one of the finest, kindliest, sweetest, strongest, grandest faces that ever gladdened the eyes of man.
Lysander Spooner was born in rural Massachusetts on January 19, 1808, and named after Lysander of Sparta, the admiral who destroyed the Athenian fleet during the Peloponnesian War. The first 25 years of his life were spent on his family farm and gave little hint of the later Spooner, whom many considered a radical among radicals. But his family contained seeds of radicalism. Spooner later described them as ardent abolitionists, meaning they advocated the immediate cessation of slavery.
At 25, Spooner went to work in the office of the Registrar of Deeds in Worcester, a nearby town. There, a growing passion for legal theory led him to the law offices of John Davis and Charles Allen,both of whom were well-respected and influential jurists in Massachusetts. They became his mentors.
Three years later, Spooner launched his first attack on an unjust law. Massachusetts required would-be lawyers who had college degrees to study in a law office for three years before applying to the bar. Those without a degree had to study for five years. Spooner considered the discrepancy to constitute an unjust discrimination against the well-educated poor, of whom he was a member. Thus, he opened an unlicensed practice and successfully petitioned the General Court to repeal the offending statute.
Tucker later commented on Spooners first encounter with statute law:
… Already the details and formalities and absurdities and quackeries …seemed but so much cobweb which he must brush away in order to obtain a closer view of those fundamental veracities and realities which he called the principles of natural justice….
Spooners Massachusetts law practice did not flourish, possibly because some people in the community were alienated by his deism. That is to say: without denying the existence of God, Spooner rejected the supernatural and authoritarian aspects of religion. Moreover, he openly attacked the clergy and some Church teachings. His pamphlet The Deists Immortality, and an Essay on Mans Accountability for His Belief (1834) states,
If a man read the narratives of the miracles said to have been performed by Jesus, and his mind be perfectly convinced that the evidence is insufficient to sustain the truth of such incredible facts, his moral sense does not require him to go farther it acquits him in refusing his assent.
This theme ran consistently through Spooners work: Questionauthority; decide for yourself.
Spooner next set up practice in Ohio but as the historian James J. Martin observed, The career of Spooner the jurist is far less important than that of Spooner the critic of the Constitution and legislative processes. Thus, his writings, not his legal career, are a proper focus.
Spooner and economics
From Ohio, Spooner continued to write deist tracts and also published his first constitutional analysis of an issue. The pamphlet Constitutional Law, Relative to Credit, Currency, and Banking (1843) opens, The Constitution of the United States, (Art. 1, Sec. 10,) declares that No State shall pass any law impairing the obligation of contracts. It continues by examining the restrictions placed on currency and banking and demonstrating those acts to be unconstitutional. They are also against natural law. To issue bills of credit, that is, promissory notes, is a natural right.
The economic Panic of 1837 undoubtedly directed Spooners interest toward financial matters, if only because it caused him to lose everything. Returning to the family farm, he must have pondered how the economy could collapse so quickly. A later pamphlet, Poverty: Its Illegal Causes and Legal Cure (Part First, 1846), offered his vision of a perfect economic arrangement within society, an arrangement that could be achieved through what he called seven economical propositions.
First and fundamentally: Every man should own the fruits of his own labor.
Second: To own these fruits, each man should be his own employer, or work directly for himself.
Third: To do so, he must have materials, or capital, upon which to bestow his labor.
Fourth: A man without capital should be free to obtain it on credit through contract at whatever rates are offered.
Fifth: To obtain a viable rate of interest, It is necessary that free banking be allowed.
Sixth: Credit should be based on what a man has that is, his property and not on what he has not that is, his future earnings, thus allowing him to pay a debt in full when it came due.
Seventh: Creditors should have liens upon the property of their debtors.
To modern ears, Spooners economic theories sound antiquated and flawed. Perhaps this is because he wrote prior to modern developments such as large-scale industry. And, indeed, it is Spooners works on political theory and jurisprudence that have survived the test of time. Nevertheless, it is necessary to briefly explore an area to which Spooner himself directed so much attention economic theory.
His approach to economics rested on two beliefs: people have an absolute claim to their own labor; and, people have a right to contract freely without government interference. He opposed government monopolies on all forms of business, especially with respect to the issuing of currency.
Why was the right to issue private currency of primary importance to Spooner? Part of the reason was, as stated in Poverty, he believed private currency and unregulated banking were necessary conditions for working people to emerge from poverty. Even low interest rates, if they were fixed by law, acted to deny some laborers the ability to pursue credit.
For example, if a laborer had only risky capital to pledge against a loan, then low rates prohibited him from paying the higher rate required to offset the risk. Thus, any control on credit and interest rates even measures sold to the public as labor friendly actually worked to the workers disadvantage. In other words, to put credit under the control of a banking elite killed the ability of the poor to rise economically.
Money and banking
Another reason Spooner stressed economic theory is the historical context in which he lived. Decades after the Panic of 1837, he witnessed the Union the Northern States pass a series of laws intended to finance the Civil War it was waging against the South (1861–1865). Through the Legal Tender Acts, Congress required everyone to accept its bills as legal tender despite their declining value in the marketplace relative to gold. Through the National Banking Act of 1863, Congress guaranteed the notes of authorized bankers and legally protected them from liability for debt. A national tax of 10 percent for all money not authorized by Congress was also established. Through such measures, Spooner believed that Congress held a de facto and unlawful monopoly over the most important industry to the American economy banking.
He also believed that that monopoly infringed on the right of individual persons to contract in at least two ways. First, private individuals were prevented from issuing private money to those who wished to accept it. Second, bankers were freed from personal liability through the act of incorporation.
Spooner did not view banks as collective entities or impersonal mechanisms. Instead, he believed that the specific men who ran the banks should be held personally responsible and legally liable for their policies. In his work A New Banking System (1873), Spooner explains,
The National system so called … is, in truth, only a private system; a mere privilege conferred upon a few, to enable them to control prices, property, and labor; and thus swindle, plunder, and oppress all the rest of the people.
As early as 1843, in Constitutional Law, Relative to Credit, Currency, and Banking, Spooner advocated the issuance of private currency as the right of every person. He considered the popular argument that government was actually ensuring people access to money by prohibiting private competition to be as absurd as saying that government provided people with food by refusing to allow individuals to grow their own vegetables.
Spooners economic theories were meant to provide a practical blueprint for working people to achieve economic independence and prosperity. Thus, his tracts address the real and pressing problems he saw around him. For example, the work entitled A New Banking System is subtitled The Needful Capital for Rebuilding the Burnt District, a reference to a fire that had devastated part of Boston.
Spooner and mail delivery
Spooners personal business ventures were also practical, while, at the same time, expressing a defiance of government regulation. In 1844, he founded the American Letter Mail Company to deliver mail from Boston to New York and, later, to Philadelphia and Baltimore as well. At that time, the federal government was trying to establish and enforce a monopoly on the delivery of all mail other than newspapers. But private mail companies were persistent; they carried bags of mail on boats or stagecoaches, which they delivered far faster than the government and for a fraction of the price. Companies like Spooners even printed their own private stamps.
True to form, Spooner issued a pamphlet contesting the governments right to a monopoly on any aspect of the mail. The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails (1844) opened, The Constitution of the United States (Art. 1. Sec. 8.) declares that the Congress shall have power to establish post-offices and post roads. But the authority to establish something, Spooner argued, was quite different from the authority to prohibit others from doing the same. The Constitution granted no exclusivity to the national government.
The federal government responded by cutting the price of its postage almost in half. A congressional act also levied heavy fines on private mail delivery. Tucker explained,
… As the carrying of each letter constituted a separate offence, the government was able to shower prosecutions on him [Spooner] and crush him out in a few months by loading him with legal expenses.
The American Letter Mail Company was driven out of business.
Nevertheless, Spooner derived clear satisfaction from having pressured the government into lowering the cost of a stamp. His pamphlet Who Caused the Reduction of Postage? Ought He to Be Paid? (1850) states of himself, Mr. Spooner has been the principal, and by far the most efficient agent in effecting the reduction of postage. Many agreed with Tucker when he dubbed Spooner the father of cheap postage in America.
Spooner and slavery
After the collapse of his company, Spooner once again retired to the family farm, where he quickly became immersed in the issue of slavery, which had emerged as the great moral issue of the day.
Spooners first work on slavery, The Unconstitutionality of Slavery, Part First, appeared in 1845 with Part Second following in 1846. The pamphlet caused an immediate stir within the abolitionist movement and brought Spooner into prominence as a radical reformer. The leading abolitionist, William Lloyd Garrison, had long argued that the Constitution should be discarded as a pro-slavery document. Indeed, the masthead of Garrisons anti-slavery periodical, The Liberator, declared the Constitution to be a covenant with death, an agreement with hell.
By contrast, Spooner defended the Constitution. He argued along legal lines that slavery contradicted the fundamental principles of the Constitution, which extended the protection of rights to all persons. He wrote,
The first rule, in the interpretation of the constitution, as of all other laws and contracts, is, that the intention of the instrument must prevail.
And the intention of the Constitution made it an anti-slavery document. In so arguing, Spooner did not take a more moderate political position than Garrison. Arguably, he was more radical. For example, the first edition of Unconstitutionality defended the right of slaves to use guns in defense of their own lives and liberties.
Defending the Constitution placed Spooner firmly on one side of a debate raging within abolitionism, and it won him financial support from the philanthropist Gerrit Smith. Non-Garrisonian abolitionists wanted to preserve the Constitution and to use political means in order to challenge slavery.
Thus, Spooners writings became campaign material for the Liberty Party, which had been formed in 1840 from the memberships of the American and foreign anti-slavery societies.
Spooners arguments made such a deep impression within anti-slavery ranks that Garrisonian abolitionists scrambled to answer them. Wendell Phillips attempted to refute Unconstitutionality with a pamphlet entitled Review of Lysander Spooners Essay The Unconstitutionality of Slavery (1847). Nevertheless, anti-slavery activists, including the famed black orator Frederick Douglass, defected to political abolitionism largely because of Spooners influence.
Spooners work drew attention partly because of its unusual approach. Abolitionists commonly appealed to the Bible, which he eschewed. Slavery advocates commonly pointed to the law, especially to the Constitution, and Spooner not only met them on their own ground, he bested them.
Spooners other anti-slavery writings include A Defence for Fugitive Slaves (1850), A Plan for the Abolition of Slavery (1858), To the Non-Slaveholders of the South (1858), and Address of the Free Constitutionalists to the People of the United States (1860). Through these writings, his evolution towards anarchism becomes clear. To some, it seemed clear from the beginning. For example, in responding to Unconstitutionality, Phillips had remarked, Mr. Spooners idea is practical no-governmentism. It leaves every one to do what is right in his own eyes. (One term for an anarchist in those days was a no-government man.)
The evolution can be seen from the writing of Unconstitutionality, in which Spooner defends the right of slaves to armed resistance against oppressors, to A Defence for Fugitive Slaves, in which he extends that argument to all individuals. In the latter, he states,
This right of the people, therefore, to resist usurpation, on the part of the government, is a strictly constitutional right. And the exercise of the right is neither rebellion against the constitution, nor revolution it is a maintenance of the constitution itself, by keeping the government within the constitution. It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power….
Thus, the right of an individual or of a people to reject government and to rebel against it is recognized by the Constitution itself.
Who decides whether natural rights or the Constitution have been breached by the government? Spooner maintained,
If an indictment be found, the jury who try that indictment, are judges of the law, as well as the fact. If they think the law unconstitutional, or even have any reasonable doubt of its constitutionality, they are bound to hold the defendants justified in resisting its execution.
The right of people to defend themselves against the usurpation of government was the central theme of Spooners next major work, An Essay on the Trial by Jury (1852), which some consider his masterpiece. Benjamin Tucker stated the gist of Trial by Jury: No man should be punished for an offence unless by the unanimous verdict and sentence of twelve men chosen by lot from the whole body of citizens to judge not only the facts but the law, the justice of the law, and the extent of the penalty; and The gradual encroachment of judges upon the rights of juries renders the latter practically worthless in the machinery of justice.
Spooner believed that a jury should judge the justice of laws as well as the facts of cases and then base its verdict on either judgment. Juries should also determine the extent of punishment or penalties. If a guilty verdict required unanimity from 12 randomly chosen people, then the jury system would be more likely to serve as an effective brake upon unjust laws because it was unlikely that 12 disinterested people would agree to act unjustly against a stranger or neighbor.
Spooners Trial by Jury allows a minority of one to veto the verdict of the majority. Although this may seem like minority rule, the minority can only negate law, not enact it. The single juror can only prevent a guilty verdict, not enforce one. Thus, the single juror is able to prevent legal damage, not inflict it.
The prospect of a jurors veto particularly appealed to Spooner, who had written on the unconstitutionality of laws regarding slavery, the mail, currency, and capital punishment. On these matters, public opinion often differed significantly from the law. Thus, the jury could constitute a much-needed court of conscience that expressed the common sense and decency of the ordinary person. Of course, judges would never support the transfer of power from their hands into those of the people. Accordingly, Spooner turned his focus away from authorities and toward the common man.
He also turned away from a single-minded focus on the Constitution. Instead, he looked at the broader tradition of codified natural law into which the Constitution fell as merely one example. He turned to the common law. In doing so, he searched for a form of justice not based on authority but on universal truths.
Thus Trial by Jury draws heavily on the Magna Carta, an early 13th-century document signed by King John, which acted as a charter of liberties through which the English nobility protected itself against the power of the Crown. The document is widely viewed as a milestone in the evolution of human liberty. One of the protections established by the Magna Carta was trial by jury. Spooner stated,
That the trial by jury is all that has been claimed for it … is proved both by the history and the language of the Great Charter of English Liberties, to which we are to look for a true definition of the trial by jury, and of which the guaranty for that trial is the vital, and most memorable, part. Slavery and the Civil War
As with economic theory, Spooners approach to justice extended beyond analysis into practice. In October 1859, the abolitionist John Brown and several followers seized the U.S. Armory and Arsenal at Harpers Ferry and were captured after a gun battle in which people were killed. Spooner suggested that supporters of Brown kidnap the governor of Virginia and trade him for the imprisoned abolitionist. The unrealized plan not only expressed Spooners contempt for politicians but also his lack of confidence that the judicial system would render justice. Brown was hanged.
In 1861, the Civil War erupted. Spooners hatred of slavery did not lead him to join with most abolitionists, who supported the North. Even William Lloyd Garrison abandoned his pacifist views. Garrison later became critical of Lincolns clear desire to preserve the Union at almost any cost; he believed the focus should be on abolishing slavery. By contrast, Spooner never thought the war was being fought for freedom or justice.
In a later essay, No Treason No. 1 (1867), Spooner commented,
On the part of the North, the war was carried on, not to liberate slaves, but by a government that had always perverted and violated the Constitution, to keep the slaves in bondage; and was still willing to do so, if the slaveholders could be thereby induced to stay in the Union.
Spooner also offered an economic analysis of the war in which he argued that Northern business interests supported the conflict in order to control Southern markets.
No Treason which competes with Trial by Jury as Spooners magnum opus undoubtedly sprang from the soul-searching that was occasioned by the Civil War. The world as Spooner knew it had been turned on its head. The historian Joseph Stromberg observes that Spooner grew up in a largely free society whose constituent republics were united on the basis of consent. By the time he died in 1887, he had seen the central state strengthened by fire and sword, 1861–1865, and the union shifted to a basis of naked force.
The naked force did not end with the war. The reconstruction of the South crushed individual rights and stifled dissent. To Spooner, the war and its aftermath constituted the crushing of the very idea of government by consent.
Government by consent means that every person who pays taxes or provides a service to the state must render his consent in order for the exchange to be just. Without such consent, the exchange is actually brute force that the government imposes upon the individual. Otherwise stated, if people pay taxes or offer a service because they fear the consequence of not doing so, then the state is no better than a robber who says, Your money or your life. Or, as Spooner phrased it, government becomes a mere conspiracy of the strong against the weak.
Consent and the Constitution
Until the Civil War, Spooner had labored to integrate the principles of the Constitution with those of natural law. No Treason abandoned that attempt. He now rejected the idea that anyone was obliged to respect the Constitution. Such an obligation arose only from consent that only free persons could render, and no one living person had consented to the Constitution.
The first No Treason subtitled The Suppression of the Rebellion Finally Disposes of the Pretence That the United States Government Rests on Consent was intended as the first of six pamphlets. But only two more appeared: No. II: The Constitution (1867), and No. VI: The Constitution of No Authority (1870). In introducing VI, Spooner noted that Nos. III, IV, and V did not exist but he did not explain their absence.
The brief Introductory to the series ends with a pointed observation. Before the war, there had been some grounds for claiming that in theory, at least government rested on the principle of consent. But nothing of that kind, Spooner wrote, can be said now.
He claimed that, because of the war, the principle on which the government and the Constitution rested was the principle on which the war was carried on by the North, namely, that men may rightfully be compelled to submit to, and support, a government that they do not want:
If that principle be not the principle of the Constitution, the fact should be known. If it be the principle of the Constitution, the Constitution itself should be at once overthrown.
Thus, the series aimed at nothing less than overthrowing the moral and legal authority of the Constitution.
No Treason No. 1 asks what government by consent implies. Spooner first analyzes the most common form of consent on which governments rest: that is, the consent of the strong or the majority through which power is imposed on the weak or the minority. He raises several objections to this process, the most basic one being,
A mans natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, … or by millions, calling themselves a government.
The principle that the majority have a right to rule merely divides government into two bodies of men masters and slaves and, so, cements constant conflict into society.
Why was the series entitled No Treason? No. II repeats the only definition of that word offered by the Constitution: Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Spooner concludes that the definition should be interpreted like all other criminal laws, in the sense most favorable to liberty and justice. He examines the words true and legitimate meaning in our mother tongue. Treason means a breach of allegiance that necessarily implies treachery, deceit, breach of faith. Without these, there can be no treason.
The so-called crime of treason makes sense only if the accused lives within a governments claimed jurisdiction and only if he has rendered allegiance to be governed. If not, then the charge is specious because it is impossible to breach a loyalty that has never been given. Moreover, Spooner argues that the government properly assumes the burden of proving that consent has been rendered and is still in effect: that is, not withdrawn or expired. He observes, Even those who actually voted for the adoption of the Constitution, did not pledge their faith for any specific time; since no specific time was named … during which the association should continue.
No Treason No. VI is subtitled The Constitution of No Authority. It opens, The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. But the current Constitution does not even purport to fit that description. It purports, at most, to be only a contract between persons living eighty years ago. Spooner concludes,
If, then, those who established the Constitution, had no power to bind … their posterity, the question arises, whether their posterity have bound themselves? If they have done so, they can have done so in only one or both of these two ways, viz. by voting, and paying taxes.
Spooner now explains why voting cannot collectively bind the people or even a particular individual to the Constitution. A rough listing of the points in his argument is as follows:
- The act of voting can bind only those who vote.
- Most people do not vote in any given election; many people never vote. Therefore, they have not consented.
- To be binding, a vote must be perfectly voluntary yet a very large number vote in self-defense.
- Taxation is compulsory and many vote only to prevent their money from being used against them.
- Votes for unsuccessful candidates cannot be binding.
- A secret vote provides no legal evidence by which to bind any particular voter to the Constitution.
Of voting Spooner concludes, So far, therefore, as voting is concerned, the Constitution, legally speaking, has no supporters at all. Of taxes, he observes, The payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the Constitution. Therefore, he concluded,
Inasmuch as 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 an 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, … it is unfit to exist.
Spooner completes his journey from defending the Constitution to dismissing it.
Spooners legacy was preserved largely by younger radicals of the day who viewed him as a mentor, especially Benjamin Tucker. Upon Spooners death, Tucker purchased his printed pamphlets and unpublished manuscripts from the estate. Thereafter, he offered the pamphlets for sale in his periodical Liberty (1881–1908) and donated the proceeds to the Spooner Publication Fund that he established to print and promote his Nestors manuscripts.
Tuckers influence on Spooner and his legacy cannot be overstated. He set the context that allowed Spooners ideas to be preserved. Prior to the 1870s, radical individualism did not exist as a movement. While he was a student at M.I.T. in the early 1870s, Tucker acted as a focal point around which a group of radicals including such veterans as Spooner, Josiah Warren, William B. Greene, and Ezra Heywood gathered. Tuckers first periodical appeared in 1877; The Radical Review lasted through four issues and included three essays by Spooner. A full-blown movement emerged with the publication of Tuckers second periodical, Liberty.
More than any other outside influence, Spooner set the original anti-statist tone for Liberty. During the periodicals first years, Tucker published Spooners classic but lengthy work on natural rights, A Letter to Grover Cleveland, on His False, Absurd, Self-contradictory, and Ridiculous Inaugural Address, in 19 installments.
Liberty also ran original pieces by Spooner, sometimes under a pseudonym, sometimes under his own name, for example, his short essay entitled A Letter to Thomas F. Bayard: Challenging His Right And That of All the Other So-Called Senators and Representatives in Congress To Exercise Any Legislative Power Whatever over the People of the United States. Tuckers occasional co-editor, Victor Yarros, prepared what he called an abridgement and rearrangement of Trial by Jury, which ran in serialized form under the title Free Political Institutions: Their Nature, Essence, and Maintenance.
Spooners life revolved around the political pounding out theory and its implementation and there seemed to be little room left for the personal. He never married and his personal life is something of a mystery or a blank. Consider the issue of women. Politically, Spooner was a sort of early feminist; he argued that the rights of women derive from the same source as the rights of a man a shared humanity and are identical to those of a man. But, personally, he seemed to display little interaction with or interest in women; perhaps an early romance and engagement that ended badly had made him a confirmed bachelor. Whatever the reason, Spooner had no children. He accumulated no wealth other than devoted friends and the ideas that were his constant companions.
Tucker, who was present, described his mentors final moments: He died at one oclock in the afternoon of Saturday, May 14,  in his little room … surrounded by trunks and chests bursting with the books, manuscripts, and pamphlets which he had gathered about him in his active pamphleteers warfare over half a century long. Spooner was 79 years old.
In his loving obituary entitled Our Nestor Taken From Us (Liberty, May 28, 1887), Tucker wrote that the name Lysander Spooner would be henceforth memorable among men. His prediction has not come to pass in a wide sense. But neither have Spooners name and work been forgotten. Recent years have seen a revival of interest in Spooner, including publication of The Lysander Spooner Reader and the flowering of websites dedicated to reprinting his work.
In the excellent biographical essay that opens The Collected Works of Lysander Spooner (1971), Charles Shively observes of Spooner,
In our time, both his example and his ideas concerning the absolute inadequacy of force and of government remain relevant. The liberation movements of our day are particularly concerned to end coercion and dominance…. In place of these slave-master relationships, there is a search for forms of cooperation among equals. In this search Spooner was a pioneer and a prophet.
February 11, 2006