Common Land Ideology in US History
"What is less well-known is the Charter of the Forest, which was agreed to two years later by the regent for Henry III, King John having died in 1216. With the Charter, ‘management of common resources moves from the king’s arbitrary rule’, says Carolyn Harris, a Canadian scholar of the Magna Carta, ‘to the common good’. The Charter granted what are called subsistence rights, the right that ‘[e]very free man may henceforth without being prosecuted make in his wood or in land he has in the forest a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour’. Included was the permission to graze animals and gather the food and fuel that one needed to live.
These rights went over to America intact and informed that country’s founding fathers as they developed their own system of laws, with a greater emphasis on the rights of commoners to own enough land to live independently. (That this land belonged to the native people who already lived there didn’t factor much into their reasoning.) For Thomas Jefferson, according to law professor Eric T Freyfogle in his 2003 book The Land We Share, ‘[t]he right of property chiefly had to do with a man’s ability to acquire land for subsistence living, at little or no cost: It was a right of opportunity, a right to gain land, not a right to hoard it or to resist public demands that owners act responsibly.’
Benjamin Franklin, too, believed that any property not required for subsistence was ‘the property of the public, who by their laws, have created it, and who may therefore by other laws dispose of it, whenever the welfare of the public shall demand such disposition’. The point was for an individual or family to gain the means for an independent life, not to grow rich from land ownership or to take the resources of the commons out of the public realm. This idea extended to limiting trespassing laws. Hunting on another’s unenclosed land was perfectly legal, as was – in keeping with the Charter of the Forest – foraging.
The land itself, not just the resources it contained, was part of the commons. Consider the implications of this thinking for our times: if access to the means for self-sustenance were truly the right of all, if both public resources and public land could never be taken away or sold, then how much power could the wealthy, a government, or corporations have over everyday human lives?
The idea of the commons isn’t exclusive to English and American history." (https://aeon.co/essays/is-it-time-to-upend-the-idea-that-land-is-private-property?)
- Book: Owning the Earth