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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 Hale’s 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 the anti-monopoly sentiment that common law contained a guarantee that public resources would be guarded for the benefit of all during which was articulated during Hale’s lifetime. American jurists, beginning with Arnold v. Mundy in the early 19th century, reached back to Hale’s treatise to define the public trust doctrine. Given the cases before them, they could have just as easily relied on the populist theories of the law percolating around Hale’s tenure on the bench. Indeed, the public trust doctrine should include populist groups and their ideas about stewardship of common resources and the duty of governments to prevent their alienation for private gain in its pedigree. Broadening the intellectual background of the public trust doctrine beyond what self-interested elites like Hale thought it to be also broadens the state’s duties beyond the tidelands.

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