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Lysander Spooner, Part 1

by Wendy McElroy
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: Question authority; 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 (18611865). 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. NonGarrisonian 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.

Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).
This article was originally published in the October 2005 edition of Freedom Daily.