Monopolizers of the Soil: The Commons as a Source of Public Trust Responsibilities

Abstract

In the seventeenth century, public resources were essential to the survival of the English poor. The common law, stretching back to Magna Carta and the Forest Charter, provided them with usufructuary rights to the commons. Those rights were violated by the enclosure movement, which received royal assent beginning with Charles I’s absolutist reign in 1625. As a result, the common people joined with Parliament to overthrow Charles I. After the Interregnum, Matthew Hale wrote De Jure Maris, a treatise foundational to the public trust doctrine in America and the doctrine’s expansion abroad. Hale lived through the Civil War which resulted from the king’s abuse of his prerogatives, and his treatise was written during an effluvium of ideas about the obligations that a sovereign incurs incidental to their rule. Two of the most radical groups to espouse reciprocal rule were the Levellers and the Diggers. Their ideas were also among the most popular expressions of anti-monopoly sentiment during Hale’s lifetime. Hale’s works became the foundation for the public trust doctrine in America when American jurists relied on his treatise beginning with Arnold v. Mundy in the early 19th century. The public trust doctrine should therefore include in its pedigree these populist groups and their ideas about stewardship of common resources and the duty to prevent their alienation for private gain that influenced Hale.