In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare. Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day recognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on governmental and private use of those resources. As propounded by Professor Sax and the many adherents to his argument, an expansive public trust doctrine will restore the wisdom of antiquity while serving as a powerful tool for the protection and preservation of natural resources and the environment.
The only problem for these ambitions for the public trust doctrine is that they rely on a mythological history of the doctrine. There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint on alienation of state owned waters and lands is belied by a history of pervasive private ownership in both Rome and England. Magna Charta had little or nothing to do with such public rights, nor is there significant support in Bracton, Hale or Blackstone for the imagined doctrine. The one concept of English law on which the modern public trust doctrine relies – the prima facie rule pursuant to which title to submerged lands is presumed to be in the Crown absent a showing to the contrary – was a 16th century fabrication that did not take hold in England until late in the 19th century, well after American law had developed on its own. Ironically, the invented prima facie rule served to feather the nest of the Crown, not to protect the rights of the public. American law would serve the same government self-dealing many centuries later in Phillips Petroleum v. Mississippi, though in the name of the public good.
American public trust law, still today, is founded on a New Jersey decision that misunderstood the Roman and English history and contradicted the contemporary law and practice of that state. That decision was overruled less than three decades later and only eight years after the United States Supreme Court had embraced its public trust theories in a title dispute to which it had no relevance. A half century later the Supreme Court revived the public trust concept, along with the mistaken history, in a case that has been badly misconstrued both legally and sociologically. Professors Kearney and Merrill have set the record straight on the economic and political history, but the legal significance of Illinois Central continues to be misunderstood, notwithstanding the Court’s clear explanation of Illinois Central’s narrow holding only three decades later in Appleby v. City of New York.
Relying on both original and secondary sources, this paper sets the historical record straight. While the courts will do what they choose, those with expansive ideas about the public trust doctrine should be discomfited by the conclusions reached. Presumably they and their academic enablers have persistent reference to the history of Roman and English law because they understand that precedent is important in a rule of law system. If their claims for precedent are incorrect, as demonstrated in this paper, they must look to other justifications for a doctrine that threatens the property rights of millions of individuals while recognizing in the courts expansive powers to invalidate the democratic choices of the elected representatives of the people.
- public trust doctrine,
- jus publicum,
- res communes
Available at: http://works.bepress.com/james_huffman/1/