[cross-posted at Austro-Athenian Empire]

Benjamin Tucker famously held that property in real estate depends on continued personal occupancy, so that when a landlord undertakes to rent out a plot of land or a building to a tenant, the “landlord” actually surrenders ownership to the “tenant,” who – despite whatever contract she may have signed – has no obligation, enforceable or otherwise, either to keep paying rent or to return the property at the expiration of the lease.

I think Tucker’s view on this subject is mistaken, but debating its merits is not my present concern. (For a defense of Tucker’s position, see Kevin Carson’s critique of absentee landlordism; for the contrary view, see my forthcoming reply to Carson in the next issue, 20.1, of the JLS.) Rather, for purposes of this post I want to ask a historical question: what was Lysander Spooner’s position on this issue?

It’s often assumed that it must have been similar to Tucker’s; in Egalitarianism as a Revolt Against Nature, for example, Rothbard treats the abolition of rent as part of the “Spooner-Tucker doctrine.” But while Spooner and Tucker were certainly aligned on many issues, they had some important disagreements as well – most notably on intellectual property (Spooner was pro, Tucker con) and on the ethical foundations of libertarianism (Spooner favoured natural law while Tucker favoured Stirnerite egoism). So it’s by no means a foregone conclusion that Spooner and Tucker must have agreed about rent.

Perhaps it’s assumed that Spooner and Tucker were both anti-rent because they both supported the Irish movement to resist paying rent to landlords. But in Spooner’s 1880 Revolution: The Only Remedy for the Oppressed Classes of Ireland, the only reason Spooner gives for impugning the property title of landlords in Ireland is not that the landlords have failed to maintain personal occupancy, but rather that their holdings “were originally taken by the sword” from the native cultivators – an argument perfectly consistent with Lockean/Rothbardian views on rent.

I can’t claim to have scoured every inch of Spooner’s texts for remarks on this issue, but what I have found convinces me that Spooner’s position on rent was in fact the Lockean/Rothbardian one and not the Tuckerite one at all.

• The earliest mention I’ve come across is in Spooner’s 1839 legal brief Spooner vs. M’Connell, in which he asserts the Federal government’s property right over “wild lands” within its territory, adding that the United States “may lease those lands ... so long as they retain the title in themselves ....” Here occupancy and title are clearly understood as separable. But this early passage is not a reliable guide to Spooner’s mature views, since it plainly conflicts with Spooner’s declaration in his 1886 Letter to Grover Cleveland that “[t]he government has no more right to claim the ownership of wilderness lands, than it has to claim the ownership of the sunshine, the water, or the atmosphere.”



• But we also find Spooner remarking, in his 1846 Poverty: Its Illegal Causes and Legal Cure, that “there is no more extortion in loaning capital to the best bidder, than in selling a horse, or renting a house to the best bidder” – which hardly sounds as though Spooner sees anything inherently problematic about rent.



• The clearest evidence of Spooner’s disagreement with Tucker on rent, however, comes from his 1855 Law of Intellectual Property. While that work is devoted specifically to the question of property in ideas, in order to address that specific question Spooner finds it necessary to develop a general theory of property rights as such, and in so doing he tells us:
  
  

  There is no limit, fixed by the law of nature, to the amount of property one may acquire by simply taking possession of natural wealth, not already possessed .... [H]e holds the land in order to hold the labor which he has put into it, or upon it. And the land is his, so long as the labor he has expended upon it remains in a condition to be valuable for the uses for which it was expended; because it is not to be supposed that a man has abandoned the fruits of his labor so long as they remain in a state to be practically useful to him. ...
  
  The principle of property is, that the owner of a thing has absolute dominion over it, whether he have it in actual possession or not, and whether he himself wish to use it or not; that no one has a right to take possession of it, or use it, without his consent; and that he has a perfect right to withhold both the possession and use of it from others, from no other motive than to induce them, or make it necessary for them, to buy it, or rent it, and pay him an equivalent for it, or for its use. ... The right of property, therefore, is a right of absolute dominion over a commodity, whether the owner wish to retain it in his own actual possession and use, or not. It is a right to forbid others to use it, without his consent. If it were not so, men could never sell, rent, or give away those commodities, which they do not themselves wish to keep or use – but would lose their right of property in them – that is, their right of dominion over them – the moment they suspended their personal possession and use of them.
  
  It is because a man has this right of absolute dominion over the fruits of his labor, and can forbid other men to use them without his consent, whether he himself retain his actual possession and use of them or not, that nearly all men are engaged in the production of commodities, which they themselves have no use for, and cannot retain any actual possession of, and which they produce solely for purposes of sale, or rent. In fact, there is no article of corporeal property whatever, exterior to one's person, which owners are in the habit of keeping in such actual and constant possession or use, as would be necessary in order to secure it to themselves, if the right of property, originally derived from labor, did not remain in the absence of possession.

  I think this is as clear a statement as one could ask for that in Spooner’s eyes ownership, while initially acquired by labour and occupancy, does not depend for its continuation on the continuation of such labour and occupancy, but may legitimately be rented out with no loss of the original owner’s just title. Perhaps it was not solely for its defense of copyrights and patents, then, that Tucker described Spooner’s Law of Intellectual Property as “the only positively silly work which ever came from Mr. Spooner’s pen.”



• Nor should we suppose that Spooner’s 1855 endorsement of rent was later retracted during his association with Tucker; for just three years before his death, in his 1884 Letter to Scientists and Inventors, Spooner restates in condensed form the standpoint of his Law of Intellectual Property, and notes in passing that the originator of an idea “may either use it himself, or sell it, or lend it to others for use, the same as he might rightfully do with any material property.” (Emphasis mine.) Once again there’s no indication that title to “any material property” is lost when its owners withdraw from personally occupying it and “lend it to others for use.”

So there’s my brief for dehomogenising Spooner and Tucker on the land issue. Perhaps I should add by way of clarification that I don’t mean to be offering the fact that Spooner agrees with me against Tucker about rent as any sort of argument for the truth of my position! (That should be obvious, but I know from experience that if I don’t make it explicit some insightful reader is likely to send me an email saying “So Spooner agrees with you against Tucker; so what? That doesn’t prove that he’s right! You are such a moron.”)

In any case, I agree with Tucker against Spooner about intellectual property, so it’s not as though I can consistently exalt one above the other. In his Law of Intellectual Property Spooner tries to show that if you agree with him about land you’re thereby committed to agreeing with him about copyrights and patents also. Obviously I think his arguments on that point fail, for reasons I plan to address in a future post; my line of attack would be a development of the approach I sketch here and here. But as I said above, my concern in the present discussion is not to offer a theoretical defense of any particular view about property rights, but simply to make the historical, interpretive point that Spooner’s view on rent was not the same as Tucker’s. (Well, to the extent that there’s any polemical payoff I suppose it’s this: those anarcho-socialists who grant the title of “anarchist” to Tucker and Spooner but deny it to Rothbard and other so-called “anarcho-capitalists” on the grounds inter alia of the latter’s disagreement with Tucker about land will find their position at least somewhat harder to maintain to the extent that the distance between the “saved” Spooner and the “damned” anarcho-capitalists is narrowed.)

Well, it’s 3:00 a.m. Tuesday, and my sleepless Sunday night is starting to reassert itself against the temporary reinvigoration from my Monday-afternoon nap, so I’m off to bed.