FROM ENGLISH LAW TO NATURAL LAW TO RADICAL INDIVIDUALISM

Spooner’s lifetime saw many important changes in American life. Born in Massachusetts in 1808, he 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.¹ The whole time, however, it was maintained by those in authority that nothing substantial had really changed. As Joseph Sobran likes to say, this is apparently what it means to have "a living Constitution." Having early turned a critical eye on government, Spooner had become a critic of the Constitution even as that document underwent some of its major sea-changes.

Spooner read law in the 1830s under the old apprentice system in which an aspiring lawyer worked for established jurists while learning the law. It has been argued that the old way produced better lawyers than the modern system of formal law schools overseen by organized lawyers’ cartels in each state.² As it was, Spooner had to wage a campaign against a state law which anticipated the "professionalization" of law by requiring three additional years’ study. He won but betook himself to Ohio to practice law.

Spooner opened up a private postal business in 1844. Congress put him out of business, by statute, in 1845. Spooner was learning quite a lot about government. He drew some conclusions in his essay, Poverty: Its Illegal Causes and Legal Cure (1846):

"Nearly all the positive legislation that has ever been passed in this country, either on the part of the general or state governments, touching men’s rights to labor, or their rights to the fruits of their labor… has been merely an attempt to substitute arbitrary for natural laws; to abolish men’s natural rights of labor, property, and contract, and in their place establish monopolies and privileges; to create extremes in both wealth and poverty; to obliterate the eternal laws of justice and right and set up the naked will of avarice and power; in short, to rob one portion of mankind of their labor, or the fruits of their labor, and give the plunder to the other portion."³

These were the words of a consistent "bourgeois" individualist, not a call for socialist upheaval. Spooner’s views resembled those of Jacksonian radicals like William Leggett and echoed the social-welfare analysis of French laissez faire liberals, whose analysis of politics as legitimized "plunder" and "spoliation" provided a theory of "class struggle" radically opposed to Marxism. While some of the pure economic analysis in Spooner’s works may be faulty,⁴ the larger framework is not.

THE CONSTITUTION, SLAVERY, AND THE CONSTITUTION RECONSIDERED

As someone who cared more about freedom than any other value, Spooner allied himself with the abolitionist movement. He increasingly came to define law as "an intelligible principle of right" deriving from natural law. This led him to a number of disputes with prominent abolitionist leaders like William Lloyd Garrison, who was denouncing the Constitution as a covenant with death and hell which deserved instant repudiation.

Against the Garrisonians, Spooner sought to show that slavery contradicted both English law and natural law in The Unconstitutionality of Slavery (in two parts, 1845 and 1846). This rather eccentric argument apparently persuaded few people. Following his chosen path of working out the radical implications of the grounds of English law, Spooner published in 1852 his Trial By Jury. Reviewing the history of the jury system, he concluded that all statute law claiming to improve upon or overthrow the common law was ipso facto invalid. Further: "If the real trial by jury had been preserved in the courts of the United States – that is, if we had had legal juries, and the jurors had known their rights, – it is hardly probable that one-tenth of the past legislation of Congress would have ever been enacted, or at least, that, if enacted, it could never have been enforced."⁵

SPOONER’S POST-CONSTITUTIONAL VIEWS

Having done his damnedest to reconcile English law and the US Constitution with natural law, Spooner threw over the whole undertaking in No Treason: The Constitution of No Authority (1870).⁶ By then, the world had seen how the last great hope of mankind – that is, the Yankee government – had responded to the secession of a number of the constituent states making up the federation over which that government presided. Applying with unwavering consistency the principle of "methodological individualism" to the realm of the law, Spooner held that only real individuals or their properly appointed agents could act, make contracts, and take on binding legal obligations and duties.

None of these conditions held with the US Constitution. At best, it was a signed agreement between the men who wrote it (and perhaps those who ratified it). By now, they were all dead, and the Constitution, therefore, bound no one but merely served as the basis of ongoing political imposture and fraud. The crushing of Southern independence underscored this reality.

I shall not ask everyone to take this strong medicine, much less believe it. Some of us, after all, harbor a certain sentimental attachment to the old document and cringe every time the Nine Delphi deconstruct and reinvent it. No matter. Spooner’s radical consistency is wonderful to behold, even for those chary of buying into it. We can leave the matter to his readers, for now.

GOVERNMENT, DEBT, AND WAR

Seeing that governments are not the agents (certified in writing) of actual rights-bearing persons and that they do not conduct themselves as hired protectors or genuine insurance agencies, Spooner naturally asks Who is it, exactly, that governments do protect? His conclusion is a Rothbardian one – or, since Spooner came first, one can say that Rothbard extended the Spoonerian argument – namely, that governments protect themselves, that is, those persons who comprise them, and those interests allied with those persons. I hope Dan Rather mentions that on the evening news sometime. It would be a big scoop for whichever network airs it first.

Spooner had been such a radical abolitionist that he busied himself with schemes to make "private war" against the slaveholders of the South. Yet, when the war came, he joined that minority of abolitionists who did not support it.⁷ Spooner’s lack of trust in government had so far matured that he felt morally bound to oppose organized state war, whatever its alleged purposes.

In any case, Spooner did not accept that the war had been fought "to free the slaves." He saw that as an after-the-fact apology brought in later to justify mass slaughter and centralized tyranny. He would have agreed with Jeffrey Rogers Hummel that the war was about two things: Emancipating Slaves, Enslaving Free Men (1997).

Spooner stressed how the government-allied bankers had made a hateful war possible: "This business of lending blood money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, amongst human beings. It is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen."⁸

The bankers had never complained about slavery in the South – they had indeed been its great supporters – but secession presented them with a dilemma. They backed Lincoln’s war "for a purely pecuniary consideration, to wit, a control of the markets in the South, in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the North."⁹ The result was a monstrous neo-mercantilist system resting on national debt and tariffs three or four times higher than they had been before the war, justified by a partial freedom for the former slaves, a freedom which could have been gained by other means.

Spooner, the veteran abolitionist and radical common lawyer, would not join in the great Northern celebration of a bloody and costly victory. All the overblown oratory about having "saved the union" came down to this: "they have subjugated, and maintained their power over, an unwilling people…. as if there could be said to be any Union, glorious or inglorious, that was not voluntary."¹⁰ The war had been fought to establish an absolute sovereignty of the central government (not that of the people) over what it claimed as its constituent elements – and every inch of territory and every person within those.

CONQUEST BEGINS AT HOME

It is critical to realize that the territory and people which a state offers to "protect and defend" from other bodies of the same general character have, as Jeffrey Hummel has pointed out, already been conquered by that state. Here we have the Law and the Prophets. If the state is powerful enough, it will try extending its sway over "its" region and, then, when megalomania sets in, over the great globe itself. At that point it makes little difference whether the state in question permits the sheep and cannon fodder a voice in choosing their masters or not. The permanent bureaucracies glide along their path either way – and the military is above all else a monstrous bureaucracy (a point many conservatives have a hard time grasping) – and the sheep hang on for the ride. Besides, as Spooner put it, the secret ballot establishes an electoral "conspiracy" whereby some people, under cover of anonymity, vote to plunder their fellows.

Spooner knew these things and it is in this way that his writings on law and government are "about" foreign policy. Politics does not stop at the water’s edge; it continues there. Spooner’s critique, which will strike some folk as extreme and cynical, bespeaks an exceptional willingness to face what Nietzsche calls "the awful news" (although Nietzsche may have had something else in mind). It is owing to the efforts of the modern libertarian movement that Spooner is known at all these days – in his homeland and abroad as well.¹¹ My thanks to the reader who suggested that I discuss Spooner in this space. I hope the results are not too disappointing.

And as far as ransacking English law for radical implications goes, we can’t leave it all to Bo Gritz and his associates.

Notes