In “Abolition: An Acid Test,” Murray Rothbard criticized libertarians who defended slavery as part of their defense of property rights. Those libertarians had argued that slaves were classified as property and, therefore, abolishing slavery would be tantamount to expropriation of the slaveowners’ property. This was indeed one of the arguments put forward by slaveowners who claimed compensation from the British government when the British Empire abolished slavery.
Similarly, in the Amistad case, the owners of a Spanish slave ship argued that black people seized from their ship by US authorities were slaves and, therefore, their property. The US Supreme Court ruled that these black people were free, as they had been “illegally kidnapped from Africa,” and, therefore, were not slaves and could not be held on that basis. But US President Martin Van Buren had previously “stood ready to hand the blacks over to Spanish authorities,” partly “due to “diplomatic considerations.” If the people seized had been legally proved to be slaves, the property rights argument for their return to the owner would have been accorded more weight.
As Rothbard points out, the view that slavery can be defended by reference to theories of property rights lacks any moral foundation. Property rights emanate from self-ownership, so any attempt by one man to “own” another is itself a violation of the most basic principle of property rights. Rothbard explains:
For these libertarians indeed go to the grotesque length of upholding property rights at the expense of the human right of self-ownership of every person. Not only that: by taking this fetishistic position these pro-slavery libertarians negate the very concept, the very basis, of property right itself. For where does property right come from? It can only come from one basic and ultimate source—and that is not the pronouncement of the State that Mr. A belongs to Mr. B. That source is the property right of every man in his own body, his right of self-ownership. From this right of self-ownership is derived his right to whatever previously unowned and unused resources a man can find and transform by the use of his labor energy. But if every man has a property right in his own person, this immediately negates any grotesquely proclaimed “property right” in other people.
However, Rothbard’s robust defense of the moral and ethical foundations of property rights does not resolve all the complexities that arise in relation to the abolitionist arguments. Two further questions arise that merit deeper reflection. First, whether it is justified to wage war on those who violate property rights, or indeed those who violate the human rights of others. Second, whether land worked on by slaves becomes the property of the slaves or the slaves’ heirs in title. Declaring legal rights to exist is only half the task: working out the appropriate response or remedy when rights are violated is quite another.
Some Practical Problems
Slavery is a violation of the principle of self-ownership and, therefore, militant abolitionists in the nineteenth century thought the appropriate response would be to wage war against slaveowners. Presumably this would entail waging war against any slaveowner whether that might be in Mississippi, Kentucky, Delaware or New Jersey—all of which were states with slavery. To be consistent with their principles, militant abolitionists would have had to wage war against slaveowners wherever they might be found. In War Letters, Andrew Carroll includes a letter from one such abolitionist, who argued that war is justified in the cause of abolition. In the letter writer’s view, slavery causes the death of slaves and, therefore, launching a war against slaveowners is not an act of aggression, but an act of “defense” for which he proclaimed himself willing to lay down his life. In his article “The Anti-War Abolitionists,” Sheldon Richman observes that some abolitionists favored military solutions to eradicate slavery. They “favored violent slave uprisings, if necessary, and praised John Brown’s methods of terror.”
The problem with this worldview should be obvious. If domestic terrorism and waging war on slaveowners is “defense,” would it follow that waging war on anyone around the world who is violating human rights is also a justified war of “defense”? That this could be a template for open and endless war was one of the concerns of the anti-war abolitionists. Richman observes that the Northern “Copperheads,” who were against any violent resolution to the question of slavery, were supported in their anti-war stance by some abolitionists who were against any war between the free states and the cotton states. Richman explains that:
The Copperheads, however, were not the only opponents of the War and its militarization of American society. Other groups and individuals coupled a disgust for state warfare with abolitionist passion. In general, while wishing to see the horror of chattel slavery ended at once, they recognized that state warfare, total or limited, would bring horrors of its own. They were confident that abolitionist ends could be attained by other than military means.
Indeed, some abolitionists thought the peaceful breakup of the United States was the best solution to the slavery question. Richman adds that: “In 1844, at the urging of the great abolitionist leader William Lloyd Garrison and others, the American Anti-Slavery Society passed a resolution calling for dissolution of the United States,” their aim being that by letting the South go “slavery ceases to pollute our soil.” Richman also cites the journalist Horace Greeley, who wrote that,
If the cotton states shall decide that they can do better out of the Union than in it, we insist on letting them go in peace… We hope never to live in a republic whereof one section is pinned to the residue by bayonets.
Abraham Lincoln was, however, not prepared to let the cotton states, with their lucrative tariffs, go in peace. He repeatedly expressed that he had no particular commitment for or against the abolition of slavery. His priority was to keep the Union together by peace or by war if necessary.
A further question that arises is what is to be done after emancipation of slaves. Slavery being a crime against property rights, the question of punishment and retribution must be faced. Rothbard thought that general principles of homesteading would apply. He argued that, “On the libertarian homesteading principle, the plantations [in the South] should have reverted to the ownership of the slaves, those who were forced to work them, and not have remained in the hands of their criminal masters.”
In this context, Rothbard uses the term “criminal” to mean violation of the right to self-ownership, as he argues in the Ethics of Liberty that any violation of property rights is a crime in libertarian law. He expounds on the question of compensation for slavery in the Ethics of Liberty:
A vital part of such necessary compensation would have been to grant the plantation lands not to the slavemaster, who scarcely had valid title to any property, but to the slaves themselves, whose labor, on our “homesteading” principle, was mixed with the soil to develop the plantations. In short, at the very least, elementary libertarian justice required not only the immediate freeing of the slaves, but also the immediate turning over to the slaves, again without compensation to the masters, of the plantation lands on which they had worked and sweated.
However, this statement of libertarian justice does not comprehensively address all aspects of the Lockean homesteading principle. Lockean homesteading does not simply state that anyone who works on a resource becomes its owner. It is, rather, a theory of first acquisition or just acquisition of title. Indeed, in his critique of the pro-slavery libertarians, Rothbard explains that self-ownership gives rise to the “right to whatever previously unowned and unused resources a man can find and transform by the use of his labor energy.” It would be wrong to suppose that all plantations on which slaves worked were previously “unowned and unused,” as seems to be presumed by Rothbard’s phrase “reverted to the ownership of the slaves.”
If libertarian principles required that forced or unpaid labor should automatically vest ownership of the land in the laborer, all cases of uncompensated labor would automatically vest title to the property in the laborer. For example, workers who—for whatever reason—are not paid for their labor would be entitled to claim ownership of the resource on which they had labored.
There are analogous situations in the English common law, under principles of equity, where expending time and effort on a farm or a business, under a legitimate expectation of acquiring an ownership interest in it (based, for example, on principles of detrimental reliance) may be deemed, in some circumstances, to give rise to equitable interest or “true ownership” despite not holding the legal title. However, as a detailed analysis of acquisition of title shows, this is a heavily fact-dependent outcome and cannot be taken as an assertion that all property belongs to those who labor on it. The same is true of libertarian principles, where justice depends not simply on the exposition of theories but also on the pertinent facts of the case.
