Against the Tide: Connecticut Oystering, Hybrid Property, and the Survival of the Commons
abstract. Property theorists hypothesize a trend of evolution toward efficiency and conventionally hold formal privatization out as the logical endpoint of this trend. Oystering, in particular, has often been cited as a context in which privatization is highly efficient. Nonetheless, in the nineteenth century, public ownership of Connecticut’s valuable oyster grounds persisted throughout decades of economic and technological change. The history of Connecticut’s hybrid regime in oyster grounds, which variably applied enclosure and common ownership to otherwise similarly situated areas, shows that such regimes can emerge and thrive for both economic and political reasons.
author. Yale Law School, J.D. expected 2015. Thanks to Claire Priest, Sheila Jasanoff, Courtney Dixon, Allison Grossman, Molly Wasser, and the staff of the G.W. Blunt White Library at Mystic Seaport. I am especially grateful to Conrad Scott and the Yale Law Journal Notes Committee for their thoughtful comments, and to Robert Ellickson for his encouragement and expert guidance.
At the turn of the twentieth century, Connecticut was known for its oysters, and the men who harvested them were of two basic types. Henry Rowe was a prominent example of the first. Rowe was a prosperous business owner and a leader of Connecticut’s major oyster cultivators. His firm raised oysters on thousands of acres of seabed, to which Rowe possessed legal title. He used the latest cultivation techniques, and his employees piloted handsome steamers on the grounds he owned—each steamer capable of taking up hundreds of bushels of oysters a day.1
Captain Bob was a typical example of the second sort of oysterman.2 Unlike Rowe, Captain Bob went to sea in a sail-powered sloop, the Broadbill, with only a few hired hands to help him haul in the dredges. Nor was Captain Bob an owner of the seabed. Instead, he worked the public grounds off Bridgeport, where hundreds of small boats like his competed to gather wild oysters. At the end of the day, if conditions were favorable, he might have forty bushels to show for his labor.
Henry Rowe and Captain Bob were both important players in a booming business. During the late 1800s, diners from California to the British Isles enjoyed Connecticut oysters on the half shell, and business and government leaders across America looked to Connecticut’s industry as a model for their own.3 At the core of this industry was an unusual property rights regime. Connecticut oystering simultaneously encompassed both a regulated commons for natural oyster grounds (that is, Captain Bob’s turf) and a private property regime for other areas of the seabed (where Rowe reigned). These radically different legal sub-regimes coexisted more or less peacefully through decades of profound technological and economic change, ferocious public controversy, and repeated attempts at simplification.4
This history is especially surprising in light of the conventional account of the development of property rights. In this account, law evolves toward efficiency, and in turn, valuable resources are subjected to private ownership in order to maximize production and minimize waste.5 Indeed, the law and economics literature has specifically cited oystering as evidence for the proposition that privatization promotes efficiency.6 According to the conventional account, then, one might have expected comprehensive enclosure of oyster grounds from an early date. Connecticut’s stable and productive bifurcated system of property in oyster grounds, under which common ownership persisted for decades, seems to contradict this narrative.
In this Note, I explain Connecticut’s somewhat puzzling two-tiered property regime. Drawing extensively on primary source material, I demonstrate that this regime enabled the use of efficient modern technologies while simultaneously preserving an open-access resource cherished and depended upon by multitudes. Moreover, I show that dividing the Long Island Sound into private and public territories generated productive biological and trade interactions across territorial boundaries, mitigating the efficiency losses associated with the partial preservation of the commons. Because of these economic and political advantages, the hybrid regime survived and thrived.
My historical findings have several theoretical implications. In offering the first in-depth account of Connecticut’s oyster property system and its origins, I join the many writers who have shown that reality often contradicts the conventional tale of evolution toward efficient formal privatization and that alternative property systems often prove viable because they fulfill important societal needs—economic and otherwise. My account also demonstrates that these viable alternative property systems include hybrid regimes—that is, regimes that impose different property rules at different points in space or time. There have been few studies of such hybrid regimes from any perspective.7 In addition to expanding this small literature with a novel historical study, I make two contributions to our theoretical understanding of hybrid regimes. First, I show that regimes that are hybrid across geographic space, like Connecticut’s, can give rise to efficiency-improving interactions among constituent territories subject to different property rules. Second, and more fundamentally, in contrast to existing studies of hybrid regimes—which heavily emphasize economic efficiency—I demonstrate that hybrid regimes can emerge and thrive because of their political functions.
This Note is organized in four Parts. Part I reviews the literature on the emergence of property rights, on alternatives to formal privatization, and on hybrid property systems, and it more fully situates this Note within these bodies of literature. Part II briefly provides context on the oyster and its cultivation. Part III looks back to the history of Connecticut oystering and shows that, although relevant law initially developed in apparent harmony with the typical tale of evolution toward efficiency, by the late nineteenth century Connecticut had chosen a different path—and succeeded nonetheless. Part IV explains this apparent anomaly with reference to both economic and political dynamics.
Harold Demsetz’s cost-benefit framework is the classic, if contested, starting point for theorists of the emergence and maintenance of property rights. Demsetz famously argued that property rights tend to change according to “the emergence of new or different beneficial and harmful effects” produced by those rights.8 In brief, when changes in the circumstances of economic production make it more profitable to society as a whole to establish a new property regime, such a regime will tend to emerge, whether through legislation, judicial decisions, or the evolution of social mores.9
Demsetz’s framework has commonly been used to explain the gradual and seemingly universal advent of private property.10 On this account, resources that are increasing in value are more likely to be subjected to private property regimes that help those who produce or safeguard those resources to fully capture the resulting benefits.11 The shift to private property can be expected to occur as long as the resulting efficiency gains outweigh the costs entailed in establishing and maintaining private property, such as the basic costs of exclusion (fences, guards, and so on) and the extra vigilance needed to deter interlopers from absconding with rising-value resources.12 Even critics of the cost-benefit paradigm have acknowledged that, in the real world, enclosure tends to follow rises in value, apparently vindicating Demsetz.13 As Saul Levmore has observed, “the conventional story about the evolution or maturation of property rights . . . . emphasizes that, with increases in value and economic activity, property rights become secure, strong, well defined though malleable and divisible, and increasingly private.”14
Demsetz’s framework allows us to predict in broad strokes when private property may emerge, but is less helpful in exploring the mechanisms of private property’s emergence.15 Nor does Demsetz clearly explain why efficiency-promoting revisions to property law, such as privatization, often fail to occur.16 Later writers have attempted to fill in these gaps, with many calling particular attention to the complex political dynamics that tend to emerge around valuable resources.17 In addition to the classic drivers of relative resource prices and technological developments, political power and legitimacy affect efforts to alter property regimes.18 To quote Gary Libecap: “The key for understanding . . . variation in property rights institutions is recognizing that the property rights that are devised to reduce the wastes of the common pool simultaneously define a distribution of wealth and political power.”19 Property reform debates “activate” both those who stand to gain from change and those who risk losses, in degrees proportional to each side’s interest in changing the status quo.20 These groups’ strength, in turn, may depend on factors internal to the group that have little to do with the economic costs and benefits of enclosure. For example, Libecap emphasizes that the relative size, internal heterogeneity, and resources of interest groups, as well as the roles they play in the status quo, all contribute to determining property outcomes. Current owners of resources are also more likely to have developed strategic political ties and an understanding of the “rules of the game” that will aid them in lobbying against reform.21
Similarly, factors apart from economic cost and benefit shape the political context within which interest groups battle.22 When competing interest groups are numerous and heterogeneous, negotiation is difficult, and the status quo is more likely to persist.23 When information concerning the value of parties’ positions under current and proposed regimes is hard to procure, compromise solutions may be similarly unattainable.24 Meanwhile, the electorate to which interest groups appeal may be unfamiliar with, or reflexively distrustful of, novel property rights systems. Longstanding arrangements may have developed ideological or sentimental value over time, which, in turn, may reduce the perceived legitimacy of new systems and of the authorities attempting to impose them.25 In these ways, even efficiency-promoting revisions to property rights can entail substantial process and bargaining, causing social conflict and making these revisions unlikely—especially when the potential efficiency gains are likely to be modest.26 When these political “costs” are factored into the efficiency equation, preserving or tinkering with the status quo of non-enclosure may be the best approach—even if theoretical economic efficiency gains are abandoned in the process.
Even when political conditions allow for change, the most efficient regime in a particular situation may bear little resemblance to the formal, well-defined set of property rights familiar to the Western legal tradition. Informal systems that preserve some or all of the elements of common ownership may benefit from subtle efficiencies despite their lack of formal order. Robert Ellickson has argued that bottom-up, somewhat ad hoc property systems can reproduce most or all of the benefits of formal property law with a minimum of economic investment, procedure, and social disruption.27 Ellickson’s study explored the complex of norms governing rangeland in Shasta County, California. He concluded that these norms applied more or less universally within the county and supplanted the formal laws that ostensibly governed the rangeland.28 Ellickson concluded from his study that similarly powerful norms tend to emerge to govern “workaday affairs” within “close-knit” groups, and that such norms maximize group welfare.29
Informal governance, like formal regulation, can “privatize” resources at various scales. For example, the “lobster gangs” chronicled by James Acheson are a classic example of informal privatization at a small group level.30 These “gangs” of lobstermen exclude all but a few from each lobster ground by implementing a host of unwritten rules through sabotage, secrecy, deception, selective mutual aid, and kinship ties.31 In contrast, Fikret Berkes has described a largely informally maintained fishery regime in Alanya, Turkey, in which relatively open access (all local fishermen are allowed to fish) is paired with a complex allocation scheme for prime locations within the fishery.32 Drawing on case studies such as Berkes’s, Elinor Ostrom has enumerated sociopolitical conditions under which communities can effectively protect and sustain valuable resources while maintaining such open systems.33 She argues that the community enjoying access to the commons must be, among other traits, well-defined and self-governed, so that it is able to define rights, exclude outsiders, and monitor and discipline insiders as needed.34
Demsetz’s critics have demonstrated that valuable resources are not inevitably privatized, and they have identified conditions that can make privatization less than optimal. Beyond theoretical arguments, they have produced many case studies of alternative property rights arrangements in the real world, from Turkish fishing villages to California ranching communities.35 Michael Heller has even extended the project to oysters themselves. In a brief study of the Chesapeake Bay’s famed “oyster wars,” Heller, drawing on Carol Rose’s concept of the “limited commons,” argues that Chesapeake oysters historically were subject to an intricate, dynamic legal regime incorporating common and private rights as well as formal and informal means of enforcement.36 In fact, Heller claims, “every oyster culture interpolates among . . . ideal type regimes and creates something new and distinct,” undermining neat tales of progression from open access to formal privatization.37
Many of the critiques of such tales share a methodological simplification, in which a non-Demsetzian property regime is described in relative isolation and portrayed as applying the same set of rules to all relevant instances of a resource. For example, Ellickson explores the functioning of a norm-based property regime governing rangeland in Shasta County, and Berkes analyzes the management of village fishing waters through collective, informal regulation. Heller’s account of the Chesapeake’s polyphonous “oyster culture” appears to take a further step by acknowledging the interpolation of multiple forms of regulation within a single, resource-specific property regime. However, Heller does not explore whether the Chesapeake system applied the same set of (jumbled, non-Demsetzian) rules uniformly, or whether the Chesapeake system treated apparently similar resources differently depending on their particular attributes.
In many settings, of course, similar resources are often subjected to different property rules depending on temporality or geography. Land is the most obvious example. Geographically distinct parcels may be regulated differently. For example, a residential plot replete with “No Trespassing” signs may stand between a public park and a golf course open only to members of the local country club. Furthermore, the same parcel may take on a different legal character with the passage of time: for example, public parks often become no-trespassing zones after dark, whether through law or less formal means of exclusion.38
Although these everyday instances of property hybridity may seem unremarkable, hybridity can substantially improve the efficiency and stability of property regimes. Henry Smith, one of the only scholars to consider hybrid regimes in any depth, has observed that the interaction of different property rules across time can promote important social goods.39 Smith coined the term “semicommons” to describe a regime in which a resource is sometimes common and sometimes private, and in which “both common and private uses are important and impact significantly on each other.”40 Smith illustrated the semicommons concept through the apparently inefficient but surprisingly durable medieval open-field system. Under this regime, land was held and farmed privately most of the time, but at certain times the private right to exclude was suspended to allow for grazing by the village’s collective herd across all parcels.41 The hybridity of the open-field system allowed villagers to engage in multiple kinds of production and enabled valuable interaction between productive activities.42 For example, the herd left manure on the land, providing a valuable input to private grain-growing later in the year.43 At the same time, informal institutions restrained the negative consequences of (occasional) common ownership.44 In these ways, temporal hybridity promoted economic efficiency.
Smith’s work on the semicommons provides several fundamental insights about hybrid property regimes. First, regimes defined by hybridity can and do emerge and persist in the real world. Second, by enabling and facilitating coexistence among, and interaction between, multiple forms of production requiring different property arrangements, hybrid regimes can provide important benefits. Third, hybrid regimes benefit from regulation, whether formal or informal, to prevent individuals from exploiting hybridity to their benefit but to the community’s detriment.
The rest of this Note extends Smith’s insights by documenting and analyzing an unusually vivid historical instance of hybrid property regulation. During the late nineteenth century, Connecticut developed a hybrid property regime, encompassing both common and private territory, to govern the rich oyster grounds of the Long Island Sound. Hybridity was the defining feature of this regime in its legal structure, its political history, and its day-to-day functioning. For this reason, Connecticut’s historic oyster-ground property regime is an ideal case study on the origins and functions of hybrid property systems.
In exploring Connecticut’s hybrid property system, this Note both adds to and expands upon Smith’s work. The literature on hybrid regimes is not extensive. By documenting another real-world instance of hybrid property regulation and its functions, this Note further develops that literature and substantiates Smith’s insights.
Moreover, this Note adds to current understanding of the semicommons in two important ways. First, I analyze a property regime that is hybrid over geographic space, rather than hybrid over time. A central point of Smith’s analysis is that a semicommons regime can benefit from efficiency-boosting interactions among the sub-regimes that comprise it. Smith’s essay focused on interaction among property sub-regimes, each of which applies to resources within the semicommons at different times—that is, sub-regimes that are spatially but not temporally coincident. On the other hand, I demonstrate that similar positive interactions can emerge if each sub-regime applies only to certain resources within the semicommons, but all operate at the same point in time—that is, if sub-regimes are temporally but not spatially coincident.45 Few scholars have studied spatially hybrid property regimes in depth. To be sure, various articles have noted the obvious fact that such regimes exist,46 and a few have considered the efficiency benefits that such regimes may offer by pairing particular resources with particular property rules.47 Nevertheless, these accounts do not explain the functions that the interaction of public and private property across space serves, and in turn, they do not fully explain how and when mixed regimes can serve as durable solutions to the struggle for rights to valuable resources. This Note aims to help fill this gap.
Second, and more fundamentally, I demonstrate that hybrid property regulation can promote political concord as well as economic efficiency, and that they can survive for that reason. In his article, Smith focused on the economic benefits of temporal hybridity, and explicitly adopted (if only for the sake of analysis) the simplified Demsetzian account of property rights, in which efficient arrangements tend to emerge.48 Similarly, those scholars who have studied spatially hybrid systems in depth explain them in terms of economic efficiency.49 At the same time, scholars recognize that politics also shape the development (or lack thereof) of novel property regimes.50 This Note is the first to address explicitly the political functions of property hybridity. I trace the roots of Connecticut’s hybrid regime to longstanding political conflict and demonstrate that it survived both because of its subtle efficiency virtues and because it embodied a distributional and symbolic compromise between warring elements of Connecticut’s polity.
The Eastern oyster (Crassostrea virginica) naturally grows and reproduces in estuaries and other coastal waters, and it can form extensive accumulations where conditions are favorable.51 These accumulations are often referred to as “natural beds.”52 The Connecticut coast, with its many shallow estuaries, inlets, and bays, provides excellent habitat for oysters and once possessed innumerable natural beds.53
The oyster begins its life as a minute egg, known as “spawn.”54 Spawn are produced by oyster beds in innumerable quantities; after floating freely in the ocean, some ultimately adhere to stationary material, such as sand, natural debris, or the shells of other oysters.55 This material is generically called “cultch.” Once immobile, the spawn is called “spat” or “set,” the latter term also being used to describe the total natural production of viable spat in a given year.56
Spat and mature oysters face a host of dangers. Oysters are sensitive to variations in salinity, temperature, and food supply in the surrounding water.57 They may also be smothered when storms and currents stir up sediment from the seabed.58 They are susceptible to diseases, parasites, and water pollution.59 Finally, oysters are consumed by a wide array of predators. In nineteenth-century Connecticut, the native starfish (Asterias sp.) was the most significant oyster predator.60
For most of history, oysters were a wild resource and were gathered wherever they could be found. Some oyster grounds are shallow enough to be exposed at low tide, allowing for harvest by hand.61 Where beds are submerged, boats are used. The typical oyster vessel in nineteenth-century Connecticut was a small, fast, shallow-draft sailboat called a “sharpie.”62 Oysters were gathered from submerged bottoms with rakes, tongs, and most importantly, dredges.63 Sailboats and hand tools were used exclusively in the Connecticut oyster fishery until the adoption of steam power in the 1870s.64 Steam power allowed oystermen to use heavier and more capacious dredges, to harvest more oysters with fewer workers, and to work in deeper waters and in windless conditions.65
Wild oysters are unpredictably available and may be depleted by overfishing. To avoid these risks, Connecticut oystermen began growing their own oysters around the turn of the nineteenth century.66 Planting, an early technique, involved bringing young oysters, called “seed,” from elsewhere and depositing them on the seabed to mature.67 Later, Connecticut oystermen learned that if they provided a suitable substrate in an area otherwise favorable to oyster growth, then they could “catch” and cultivate free-floating spat produced by other oysters.68 Although the ancient Romans and Chinese used this technique, it apparently was not employed in Connecticut until the 1860s or so.69 The ideal substrate was oyster shell. Connecticut cultivators deposited vast quantities of shells on previously barren stretches of seabed throughout the later decades of the nineteenth century.70
Initially, cultivation was practiced in the shallow coastal waters where oysters had always been found. These waters became crowded, however, as the industry grew and private ownership of underwater land emerged.71 Planters and cultivators therefore turned to deeper plots and, eventually, Long Island Sound, where vast stretches of empty seabed lay under fathoms of water.72 New Haven oystermen first attempted cultivation in the Sound in the 1870s.73 The technique quickly caught on, hugely increasing the output of the Connecticut oyster fishery.74 Natural bed oystermen, sometimes referred to as “natural growthers” or simply “growthers,” continued to harvest wild oysters during this period.75
The early history of oyster regulation in Connecticut more or less squares with the classical Demsetzian narrative, in which rising resource values trigger new restrictions on property ownership.
Initially, oysters’ natural abundance made regulation unnecessary. Connecticut’s waters had always provided ample oysters. Native Americans harvested wild oysters from the shallows in and around present-day New Haven and left extensive shell middens throughout the area.76 Oysters were a significant source of food for early European settlers, and they soon became economically important as well. New Haven’s first oyster dealers were plying their trade in the seventeenth century,77 and these dealers were supplied by professional oystermen who lived close to the harbor or the nearby Quinnipiac River.78 By 1800, oysters were being exported inland as far as Montreal.79 An 1824 report in the East Haven Register estimated local yearly production at 60,000-100,000 bushels.80
As the oyster trade developed, wild oysters became scarce, and the law shifted in turn. In 1762, New Haven, whose beds had been under pressure since the early 1700s,81 forbade residents from harvesting during the spawning season and banned the removal of cultch from the natural beds in the harbor.82 In 1766, the New Haven town meeting extended the off-season through September and outlawed dredging altogether, believing it to harm the beds.83 Meanwhile, in 1784, the Connecticut legislature passed a law enabling towns to broadly regulate oystering within their waters.84 Twenty-four coastal towns subsequently enacted seasonal restrictions and catch limits. Under these ordinances, oystermen were limited to two bushels a day and could only harvest within their own towns.85
The two-bushel limit and the locality requirement were widely flouted.86 The seasonal restriction apparently held up better, and by the early 1800s had been extended in New Haven until the end of October.87 Yet even though the seasonal restriction was obeyed, this restriction did not appreciably slow depletion of the beds. In an 1880 reminiscence of oystering earlier in the century, one author vividly depicted the race to harvest wild oysters during the legal season, beginning at midnight on November 1:
No eye could see the great face of the church-clock on the hill, but lanterns glimmered upon a hundred watch-dials, and then were set down, as only a coveted minute remained. . . . [T]he great bell struck a deep-toned peal. It was like an electric shock. Backs bent to oars, and paddles churned the water. From opposite banks navies of boats leaped out and advanced toward one another. . . . Before the twelve blows upon the loud bell had ceased their reverberations, the oyster-beds had been reached, tongs were scraping the long-rested bottom, and the season’s campaign upon the Quinepiac [sic] had begun. In a few hours the crowd upon some beds would be such that the boats were pressed close together. They were all compelled to move along as one, for none could resist the pressure of the multitude. The more thickly covered beds were quickly cleaned of their bivalves. . . . A week of this sort of attack. . . usually sufficed so thoroughly to clean the bottom, that subsequent raking was of small account. . . . It was not long . . . before the old-fashioned large oysters, “as big as a shoe-horne,” were all gone, and most of those caught were too small for market.88
Even as the natural beds continued to decline, demand for oysters was booming, driven in large part by population growth.89 Connecticut oystermen turned to planting and cultivation to fill the gap. Planting began in New Haven harbor around 1800. Planters used seed oysters both from local beds and from further afield, including the Housatonic River, New York, Delaware Bay, and, by sometime between 1817 and 1830, the vast natural beds of the Chesapeake Bay.90 Fueled by imported Chesapeake seed and the advent of rail transport, the New Haven oyster industry expanded greatly from the 1830s to the 1850s.91 Levi Rowe & Co., one of the city’s leading firms, sold 150,000 gallons of opened oysters in 1856 alone.92 A fleet of at least eighty boats was employed in transporting seed from southern waters.93 Hundreds worked in shucking and packing,94 and Fair Haven developed a thriving manufacturing sector secondary to the fishery, producing goods such as barrels, cans, tubs, pails, and oyster-shell lime.95
As planting entered its boom years, full-fledged cultivation (that is, catching spat, rather than planting seed) was just beginning to emerge. Various oystermen experimented with cultivation using shells in the 1850s and 1860s;96 however, the practice became dominant only after further technological developments in the 1870s.97 Cultivation and planting both differed from wild harvesting in that they required long-term investment on the part of producers, raising the possibility of free-riding. An industrious oysterman might plant a few acres of seabed and return years later to harvest the mature oysters, only to find them harvested in the meantime by an unscrupulous competitor. Underwater land was deemed public property both at common law and in popular opinion, and in turn, planters had little ability to exclude others from planted grounds.98
Consonant with Demsetz’s narrative, the law soon shifted to enable oystermen to capture the profits of cultivation. In 1845, the Connecticut legislature authorized town committees to allow oystermen to stake out areas of the seabed and plant them with imported oysters, and imposed penalties for trespassing upon staked-out grounds.99 In 1855, with the southern trade flourishing, the legislature provided further security for planters by allowing the town committees to grant perpetual titles in the seabed to individuals.100 The 1855 statute restricted individual ownership to two acres, but one could evade this restriction by gathering together the grants of friends, relations, and even strangers.101
Oyster entrepreneurs quickly claimed and enclosed a great deal of land. Tracts were marked off with poles or branches sunk into the seabed.102 In 1862, a French envoy visited New Haven and described its harbor: “As far as the eye can see, the bay is covered with myriads of branches, waving in the wind, or swayed by the force of the currents. It looks as if a forest were submerged, the tops of the trees only rising above the surface of the water.”103
The early enclosure regime had rough edges. Grants often described the tracts at issue in loose terms; the seabed was poorly surveyed; and procedures for designating and transferring land were irregular and inconsistent.104 Moreover, many oystermen staked out and claimed ground without legal sanction, in ignorance or otherwise.105 Disputes were common, especially when land granted through the town committees was already in use or had been staked out under previous laws. Ingersoll writes:
Cultivators of all grades found many and many instances in which their staked-out ground was reappropriated, or the oysters, upon which they had spent a great deal of time and money, were taken by their neighbors even, who angrily resented any imputation of stealing. . . . Having put some oysters on a piece of ground and found them to do well, a man would put in a claim for a grant of that piece, and feel greatly abused because it had previously been designated to some man who knew that the only proper or safe way was to get legal possession of the ground first, and make a trial afterwards.106
In 1864 and 1865, the legislature banned the practice of staking out plots without committee consent, mandated the recording of designations and transfers, and allowed towns to tax the beds, thereby providing some modicum of additional certainty.107
Concurrently, the legislature enacted new controls on the natural beds in an attempt to stem their continuing decline. These included a statewide off-season from March 1 to November 21, a ban on nighttime oystering on the public beds, and a total ban on the harvest of oysters by nonresidents of Connecticut.108 Oystermen continued to gather tens of thousands of bushels from natural beds throughout this period, although due to intensive harvesting, the oysters taken up were too small to sell for consumption.109 Instead, they were used as seed on other grounds.110 An 1867 article commented that “[a] good many of the native oysters are also taken out of the Quinnepiack [sic] and planted on the planting grounds. These are said to make the best oysters in the country.”111
The law was changing, but the state of the art was changing faster, and by the late nineteenth century, the need for wholesale legal change was clear. This Part describes the stresses that affected the Connecticut oyster industry in the 1870s and 1880s, and details the legislature’s response. I show that the oyster reforms of 1881 halted the trend toward full privatization of the oyster grounds. Nonetheless, the property regime these reforms established survived and even flourished in the following years.
In 1874, Peter Decker, a Norwalk oysterman, set out to sea in a steam-powered oyster sloop—the first of its kind.112 Decker’s fellow oystermen were quick to realize the advantages of the new technology, and several were operating from purpose-built steamers by the late 1870s.113 Steam-powered oystering was incredibly efficient. “It must rather disturb those who have only the ordinary implements used in catching oysters,” one journalist commented, “to see the rapidity with which these steam monsters rake up the bivalves and deposit them on ship-board.”114 The New York Times observed that oystermen with steamers were able “to secure the lion’s share of seed from the public beds.”115
Steam power allowed oystermen to venture into deeper water. In 1874, Henry Rowe, a prominent New Haven cultivator, obtained a tract under thirty-five feet of water in the Long Island Sound and successfully cultivated a crop of oysters on it.116 Rowe’s success shattered the long-held belief that the Sound’s deep and turbulent waters were unsuitable for cultivation.117 The coastal towns were soon granting land far offshore.118 Steam was essential as cultivators pushed into faraway deep-water tracts, where the use of hand tools was infeasible.119
With steam power and deep-water cultivation, Connecticut’s oyster production expanded as never before. Observers in other states looked on with some awe. “[T]he only noteworthy increase [in oyster production] is upon the Connecticut shore,” the New York Sun reported in 1881. “Six or seven years ago the oyster cultivators of New Haven, Fair Haven, and Norwalk were in the habit of going over . . . to buy two-year-old oysters from the beds ‘off Fire Island way,’ for their planting. Now the process is reversed.”120
It soon became clear that Connecticut’s success could continue only if its legislators caught up to reality. Existing law hindered efficient, modern oystering in several respects. First, and most obviously, many of Connecticut’s most fertile waters were still exempt from enclosure. The early development of private property rights did not mean the end of the natural beds, which were expressly excluded from staking out and from private ownership in the laws of 1845 and 1855 and which continued to be reserved for the public under subsequent legislation.121
Second, even where private property in oyster grounds existed, the law mandated operation at an inefficient scale. In order to defray the expense of building and operating steamers, growers had to expand their holdings.122 However, the law limited individuals to two acres each.123 To avoid ruin, oystermen transacted around the law. In 1875, for example, Henry Rowe assembled fifty-eight co-claimants in order to acquire an 128-acre tract in the New Haven harbor channel.124 Such tricks were costly, and by the late 1870s, many were calling for the two-acre limit to be abandoned altogether. The Sea World commented: “It is universally shown that the ‘two acre law’ is useless except as a vexation. No cultivator can really do anything with two acres alone. About as well attempt to navigate a steamboat in a washtub.”125 Another editorial predicted that “[t]en years may show that even fifty acres is too small a piece.”126
Third, because no registry existed, the 1870s oyster boom spawned even more property disputes. Oystermen frequently staked out land deeded to others, and towns deeded lands already granted by their neighbors.127 The two-acre requirement contributed to the confusion, since assembled plots were inevitably irregular in shape.128 Disputes over town boundaries proliferated, both between oystermen fighting over tracts and between towns seeking to tax the increasingly valuable seabed.129 These disputes implicated the ability of towns to grant oyster land in certain areas as well as the validity of titles already granted. During the late 1870s, the Connecticut legislature enacted a flurry of piecemeal legislation aimed at resolving these issues.130 But as cultivators pushed further out into the Sound, where town jurisdiction was uncertain and state regulation nonexistent, disputes seemed sure to multiply.131
Fourth, legislators had yet to decide how to accommodate steam power within existing regulation. In 1879, the Connecticut legislature passed a law that limited steam dredging on the natural beds to two days per week, but the law did not address the use of steam on private beds.132 This seems to have satisfied no one, and lobbying continued apace. Along with other large-scale cultivators, Rowe pushed for open access for steamers.133 His opponents turned out in force at the legislature, arguing in a public hearing that steam dredging injured the oyster beds—a point that the proponents of steam strenuously disputed.134 Meanwhile, a Norwalk Sentinel correspondent opined that
[t]here is no business in the state that the members are so unfamiliar with as the oyster interest. Some of the back country members have an idea that there is literally millions in it. They think the state should get enough out of it . . . to pay its whole expenses. They believe the town commmitties [sic] are robbers and that oystermeu [sic] generally are not far behind them.135
Out of this chaotic situation emerged another half-measure: banning steam outright on certain public beds and explicitly allowing it on private grounds in New Haven harbor for a limited period.136
In April 1881, the Connecticut legislature—still besieged by clashing lobbyists and polemicists,137 and spurred on by a state commission’s critical report on the condition of Connecticut’s oyster laws—lurched into more comprehensive action.138 The legislature passed a set of reforms embodying a wide-ranging compromise between the major oyster growers and the “sail men.” The core of this compromise was a hybrid property regime. Under this regime, the towns retained jurisdiction north of a line drawn close to the coast, but were still banned from granting natural beds. South of the line, a board of three state commissioners was empowered to grant perpetual franchises to Connecticut residents, with no limit on grant size—but only in “such undesignated grounds . . . as are not and for ten years have not been natural clam or oyster beds.”139 The legislature also passed bills that allowed steamers on private grounds but banned them from all other grounds.140 A newly created state oyster commission was directed to comprehensively map oyster grounds and grants within both state and town jurisdictions, and procedures were set forth for resolving the location and extent of natural beds within town waters.141
At first glance, the reforms of 1881 collectively seem like another halting step toward efficient law. In allowing steam-powered oystering and creating well-administered private property rights in the seabed, these reforms introduced regulatory innovations that allowed oystermen to capture the higher profits and productivity that could come from modern technologies and full enclosure. True, the 1881 reforms left many of Connecticut’s oyster grounds out of this legal revolution. Following Demsetz, it would be reasonable to imagine that this anomaly would soon be corrected. After all, the legislature had demonstrated its willingness to make fundamental legal changes in order to facilitate efficient production, and the natural beds were apparently not efficient.
Indeed, the natural beds exhibited many of the signs of degradation typical of open-access resources.142 The Sea World noted in 1880 that “[t]he oysters on well known natural beds are kept used up too closely to grow to any valuable size, except for seed. If a new bed is discovered it is soon cleaned and brought to the condition of the older ones.”143 Other sources suggest that the natural beds were also badly infested with starfish.144 The state commissioners described this problem as a classic tragedy of the commons:
The natural or public beds are not so carefully and thoroughly worked as the private beds are, and no systematic efforts are made to destroy the star-fish . . . .
. . . In the free scramble for the oysters, [the natural growthers] have no thought but “to keep what they get and catch what they can,” and it would be lost time to them to dredge for stars while others dredge for oysters. . . .
Commissioners . . . would not give the impression that . . . the natural-bed oystermen as a class are any worse than the same number of men in any other occupation. The Commissioners have found them, with few exceptions, honest, industrious and well disposed. No one can be reasonably blamed for omitting to do that which is the joint duty of all—for failing to coöperate where coöperation is impossible.145
According to some observers at the time, the inefficiency of natural bed production was also evident in the market. One wrote that although “[t]here are still a few individuals of the old school who are toiling along in the manner their fathers did . . . these parties are small in number and steadily decreasing. The old methods cannot compete in the market . . . .”146
But in spite of its apparent inefficiency and contrary to the typical narrative, the natural bed system—and the hybrid property regime that enshrined it in law—lasted well into the twentieth century. Years after the 1881 reforms, the Baltimore Sun reported that “[w]hile there are many differences of opinion . . . the general feeling is one of satisfaction with the present law.”147 The state’s cartographical and adjudicatory efforts over the following years maintained a large amount of territory as “natural bed,” and in some cases, the state commission even revoked grounds previously granted to cultivators (including Henry Rowe) and declared them public.148 Natural growthers continued to fight, both before the state commission and in court, to sustain and expand the area open to the public, and they sometimes prevailed.149 Here, apparently, was an inefficient property regime that stubbornly resisted evolving with the times.
The previous Parts have demonstrated that a simple narrative of evolution toward efficiency partially explains Connecticut oyster law and its history. The universal right to unrestricted oystering was first restricted when increasing demand and limited natural supply caused depletion, thereby raising the costs of open access. Later, the property regime shifted toward enclosure, as (1) booming demand and the advent of rail increased the value of the resource, and (2) new technologies (first planting, then cultivation, and finally capital-intensive deepwater cultivation) rendered private ownership, with the long-term investment and economies of scale it enabled, uniquely beneficial. Other legal reforms increased the efficiency of the property system and the benefits of private ownership by simplifying and partially centralizing its administration, removing scale restrictions, and more clearly establishing boundaries. Finally, the introduction of efficient steam power prompted additional changes in the form of legislation that protected the right to use steam.
The natural bed system is an anomaly within this narrative. Under this system, valuable beds were subjected to a common property system that reduced output and promoted waste. Yet, despite its disadvantages, this system persisted for decades.
In this Part, I seek to explain this anomaly. I demonstrate that the history of Connecticut’s spatially hybrid property regime partially undermines efficiency-oriented theories of the emergence of property law. Section A describes the subtle but important efficiencies that emerged from interactions between the territories within the hybrid regime. Section B shows that, to the limited extent that the hybrid regime was economically inefficient, its political virtues made up for the loss.
Although the natural bed regime seems at first glance to have been quite wasteful, and although it little resembled the privatized oyster regimes conventionally portrayed as most efficient, this regime benefited from two mechanisms that cabined the costs of common ownership and relatively open access.150 First, robust informal controls reduced exploitation of the natural beds. By establishing private property in some areas and formally ratifying the natural bed commons in others, Connecticut’s legislature likely strengthened these controls. Second, by allowing for multiple forms of production simultaneously, the hybrid regime facilitated interspatial interactions that supported the productivity of the natural beds. Together, these mechanisms eliminated many of the efficiency losses caused by common ownership of the natural beds and thereby lessened pressure for full enclosure.151
Several extralegal mechanisms reduced the inefficiencies of public ownership of the natural beds.152 Although the natural beds were legally open to all Connecticut residents, it seems that oystermen tended to stay within their “turf,” and in practice, the natural growthers of the late 1800s had their own ways of excluding outsiders.153 Informal exclusion was an early feature of Connecticut oystering. For example, in his 1880 account of oystering earlier in the century, Ernest Ingersoll recalled that residents of the “back country” would descend on New Haven at the beginning of the season, hoping to harvest personal stocks of oysters for the winter ahead, and that “these rustics always met with a riotous welcome from the town boys . . . . They were very likely to find their boats, if not carefully watched, stolen and hidden before they had a chance to launch them, or even temporarily disabled.”154 Another source relates:
Many pranks were played by the Fair Haven men upon their unwelcome competitors from the surrounding town . . . . On one morning when the [seasonal restriction] was off, Hezekiah Bradley’s canoe was found standing on end in an apple tree, up on the hill where the Shore Line railroad now runs . . . .
At another time a large fleet of visiting boats . . . were prevented from participating in the grand rush by the sudden disappearance of every rope and anchor in the fleet, and the owners of the boats on visiting the local stores to purchase new rope, found that their opponents had been there before them, and their money could not purchase any rope in Fair Haven.155
Similar measures persisted after the reforms of 1881. In 1890, after several lean years, the natural beds at the mouth of the Housatonic experienced an abundant set, attracting oystermen from further afield. The Hartford Daily Courant reported what happened next:
The invasion of the grounds by the outsiders seemed to the small local fishermen little short of robbery. As the beds were natural beds the other parties had legal right of access to them, however, and the small fishermen could only protest and set forth their grievances. This they did, until all of the offending parties but one—Lorenzo Smith of New Haven—agreed to keep off the grounds.
Smith refused to enter into any compact, and as a result sometime between Saturday night and Sunday morning a fine sharpie of his was set afloat and her sails cut.156
Once on the water, oystermen excluded others from their preferred grounds through secrecy, using triangulation and their own memories to “enclose” particularly rich areas within the natural beds. The New York Tribune explained:
The water out in the Sound all looks alike, and once an oysterman strikes a fertile spot for dredging he does not like to leave it till he has it worked out. It is impossible to mark the spot by buoys, for they would point out to the other oystermen the location of the paying bed. So the crafty oysterman strikes upon the ranges [a method of triangulation] to fix his find.157
Although these and other informal exclusion measures predated the hybrid regime, it is likely that this regime’s limited establishment of private property actually strengthened them. As Daniel Fitzpatrick has recently written, attempts to supplant informal, non-state property regimes with formal, state-enforced private property rights often prompt devolution to open access.158 The formal regime may lack enforcement capacity sufficient to exclude those with competing claims under the old regime, but, at the same time, pressure from advocates of the formal regime, as well as rising resource values, may degrade the social and institutional underpinnings of the old regime.159 By alleviating the pressure of potential enclosure from the natural beds, and by defining a territory in which their traditional governance system could continue unchallenged, Connecticut’s hybrid system likely preserved the legitimacy and stability of informal governance. The hybrid system may in turn have significantly limited efficiency losses from the natural beds.
Connecticut’s natural beds were subject to relatively few formal controls, but the situation on the water was far from anarchic. Rather, robust informal controls existed to restrict and define access rights. Connecticut’s hybrid regime, like the common property regimes chronicled by Ostrom and Ellickson, thereby achieved a measure of efficiency in the natural beds without imposing formal privatization on them. Moreover, in relieving political and economic pressure on those beds by establishing separate, privatized areas, the hybrid regime reinforced the social foundations that, as Ostrom and Ellickson have emphasized,160 are needed for informal controls to persist. Connecticut’s experience therefore suggests that hybrid property regimes can both benefit from and augment common property institutions.
In addition to preserving and strengthening the natural beds’ informal regulations, Connecticut’s hybrid regime enabled productive economic and biological interactions between privatized and public production territories—that is, interactions over space, as opposed to the intertemporal interactions emphasized by Smith in his study of the open-field semicommons.161 These interspatial interactions further reduced the efficiency consequences of preserving the natural beds.
First, the oyster’s peculiar reproductive biology gave rise to a helpful biological interaction between the natural and cultivated beds.162 As discussed above, oysters reproduce by producing spawn, which drift on the current and eventually settle as spat.163 Oyster growing therefore generated a significant positive externality, in that an oyster in one place could produce spat in another place. This externality was especially beneficial to the natural beds. One observer wrote in 1879 that “[i]t is found, in oyster cultivation, that what one man does for the improvement of his own grounds, and the protection of his own crops, greatly helps all the other oyster beds in the vicinity. Thus oyster cultivation helps to increase and enlarge so-called ‘natural beds.’”164 And in 1892, the Baltimore Sun reported:
The great Stratford [Bridgeport] bed, which is one of the best in Connecticut, is surrounded on the east, south and west for many miles by cultivated farms. . . . The spat floating from all these farms in all directions greatly benefits this natural bed, just as such accretions have benefited all the natural beds of Connecticut.165
Although the natural beds were overharvested, the intensive cultivation of oysters on surrounding private grounds constantly replenished them. In this way, the natural beds’ situation within a bifurcated system created a margin of error, helping those beds withstand less-than-efficient harvesting practices.166
Second, public and private oyster grounds interacted commercially through the sale of natural bed seed to cultivators. As noted above, the natural beds’ oysters were small due to overharvesting and therefore could not be sold to the public. However, they could be transplanted onto private beds, where they would mature to salable size. Indeed, transplantation of natural bed seed, along with full-fledged cultivation (that is, oyster-growing using shells to attract spat) and the use of seed from private beds, largely replaced the planting of Southern oysters by the late 1800s.167 By the late 1880s, seed from outside Connecticut provided less than ten percent of the state’s total oyster harvest.168
Unlike Chesapeake seed, local seed was cheap and convenient.169 It transplanted well, and local growers generally preferred it to seed from further afield.170 A few sources suggest that, among all local seed, natural bed seed was particularly desirable.171 In any case, the evidence demonstrates that natural growthers sold great quantities of seed to nearby cultivators, as well as out-of-state oyster growers, into the twentieth century.172 The Baltimore Sun noted that Connecticut’s split system “afford[ed] [growthers] an unlimited market for all the seed they can gather.”173 In 1904, a bountiful oystering year, the New York Times reported:
Th[e] prolific set will mean much to the oystermen of the Long Island shore, who depend so largely for their seed oysters on the set on this coast and in the Rhode Island waters. How much they will have to buy will depend largely on the set that has been made in the great natural bed off Bridgeport . . . . It is from these freebooters of the Sound [i.e., the natural growthers] that the Long Island growers will buy seed in great quantities, and at low prices . . . .174
“Buy boats” anchored near the natural beds and took on oysters from the natural growthers, who queued in their sloops alongside the buy boats.175 Other natural bed oystermen delivered directly to oyster houses along the shore.176 Seed buyers bid against one another, and some oyster houses had exclusive contracts with particular oystermen.177 In large part through this commercial interaction between private and public oyster grounds, the natural beds’ small oysters, which would otherwise have been a degraded, valueless resource, became a sought-after commodity, and in turn, the natural beds continued to provide hundreds of jobs.178 As late as 1904, the New York Tribune could report on the Bridgeport bed as follows:
[T]here is a fleet of at least two hundred boats working each day that the weather permits. There are men working on the beds this fall who have worked there every year for a quarter of a century, and there are mere boys doing their first “stunt” on the beds, but they are all making “big money.”179
The subtle efficiencies of the hybrid regime alleviated economic pressure that might otherwise have weighed on Connecticut’s legislators. At the same time, those legislators faced tremendous political pressure to preserve the public natural beds to some extent. The early conditions of the Connecticut oyster industry entailed relatively open access to certain preexisting beds—that is, the natural beds—with limited government regulation. Over the decades and centuries, Connecticut oystermen became accustomed to this state of affairs.180 By the nineteenth century, the natural bed regime had become a “people’s right”181 and the basis for a social and economic system involving hundreds of capital-poor oystermen, who were understandably attached to the status quo.182
In turn, revoking the natural beds’ protection altogether was a politically daunting proposition. Because of the open-access nature of the resource, a large number of parties had interests in the beds, giving anti-enclosure forces political clout.183 Indeed, although many growthers were part-timers,184 their sheer numbers ensured that any threat to the public beds would attract significant interest and allowed the growthers to compete politically with the well-connected, highly organized large cultivators.185
Moreover, the fate of the public beds was a highly salient and symbolic issue for the general public. Over the centuries, Connecticut’s voters had grown fond of open access—so much so that in 1884, after the legal regime was more or less settled, Henry Rowe was still denouncing “the prejudices of those whose fathers and grandfathers used to go down to the shore and go oystering and put a bushel or two in the cellar.”186
The general ideological currents of the time reinforced this “prejudice.” Much of the Connecticut public of the late 1800s was anxious about economic instability and scarcity, wary of monopolies, and inclined to support the humble but independent working man.187 Especially toward the turn of the century, local newspapers frequently reported on schemes to form “oyster combines” and oyster ground monopolies,188 and monopolization concerns were prominent in the debates leading up to the reforms of 1881.189 These concerns were especially sensitive in the context of public-bed oystering—an activity tied in the public mind to small enterprise, personal liberty, and social mobility.190 An 1883 article captures the prevailing vision of the public beds during this time:
Here high and low, rich and poor may plant at leisure and catch at pleasure all the oysters needed, with no private owners to dictate or stilted rules of a commission to restrict. On these beds the casual oysterman can rise in his majesty and assert with none to dispute, “I am monarch of all I survey.”191
Indeed, oystering had always been associated with the humble. For example, the poor and infirm were exempted from New Haven’s 1762 regulations on harvesting from the natural beds.192 A typical article from the late 1800s discussed “the hundreds of sturdy oystermen who own little sloops, and make a living by hard work spent on the natural oyster beds along the Sound.”193 Some of these “sturdy oystermen” used seed from the natural beds to transition into part-time or full-time cultivation.194
These ideological factors combined with the natural growthers’ impressive numbers to create tremendous political pressure in favor of open access, regardless of the economic gains to be had from privatization. Contemporary accounts suggest that legislators felt this pressure acutely. For example, major players in the state Republican Party, including a U.S. congressman and an ex-governor, descended on Hartford during debates over oyster policy to make sure that their comrades did not disappoint the growthers’ lobby.195 An observer remarked that “all over the House, it was secretly and industriously circulated that ‘the party’ would suffer; that the oystermen . . . would all go back on the ticket . . . .”196 In 1891, the New York Times, in a report on the formation of the Natural Growers’ Association, claimed that the new group was “destined in all probability to hold the balance of power . . . . The vote of the men employed on the oyster boats along the Connecticut shore is always considered at election time.”197
The growthers seem to have been at least as politically potent, if not more so, at the local level. A packed town meeting in Guilford adopted a resolution denouncing “the recent legislation under which private individuals and corporations have obtained exclusive and permanent control of vast areas of natural clam and oyster grounds, viz[.], the rivers, coves and bays along the coast of this State . . . .”198 Guilford’s meeting was apparently unexceptional. “It is apparent,” wrote one observer, “that oyster growers have had to fight their way to a standing in nearly all the towns. . . . As the case now is, a little excitement aroused may induce a town meeting to pass resolutions which will practically kill all the oyster business in that town.”199
A hybrid system was a particularly deft response to this political pressure. Resisting any major change to the property rights status quo governing certain long-familiar grounds, Connecticut’s legislators preserved the unique symbolic values and social mobility opportunities associated with formally open access to the natural bed and thereby avoided massive political fallout. At the same time, they sacrificed the more marginal political gains from similarly maintaining the public status of deepwater and cultivated beds, which historically had not been cultivated and therefore were not linked to attentive, entrenched communities of users and voters. The State of Connecticut, by subjecting these beds to an entirely different set of property rules that provided sufficient protection for investment, was able to reap the economic rewards of modern oyster production to a considerable extent, all the while reassuring voters of their right to the oyster grounds they knew and loved.
Connecticut’s experience thus reinforces the conclusions of those theorists, such as Libecap, who have augmented efficiency-oriented theories of the origins of property with accounts of how politics can divert the evolution of property rights away from theoretical maximum efficiency. Yet Connecticut’s experience also shows that those subject to political pressure can and do act to minimize the economic distortion that political pressure can generate, and that spatially hybrid property regimes can serve as useful tools in this regard. Such regimes can defuse political tensions that relate to specific geographic areas (such as Connecticut’s natural beds). Perhaps more importantly, however, a spatially hybrid property regime is an overarching compromise that still allows for relatively pure sub-regimes to exist within it. Such an arrangement may prove particularly effective where competing political and economic demands require such purity. As an example, Connecticut’s legislators established a substantial zone of relatively unfettered access, satisfying those whose visions of freedom and equality demanded nothing less. At the same time, the legislature subjected large tracts to complete enclosure, providing cultivators with the high degree of certainty needed for intensive investment. By establishing a system of coexisting extremes in this way, Connecticut was able to meet the demands of both sides to a much greater extent than a spatially uniform compromise might have done.
The golden years eventually drew to an end. Over the initial decades of the twentieth century, pollution, pests, hurricanes, and bad spawning conditions laid waste to the Connecticut oyster industry.200 But while the industry thrived, it was a major economic force and a national model. Its bifurcated property regime embodied a contested but durable compromise among diverse interests and sectors of society, enabling prosperous and sufficiently peaceful coexistence for several decades.
The Connecticut oyster industry of the 1800s may be gone, but its history has much to tell us about property rights and their emergence. To an extent, the form and development of the industry’s property system provide general support for Demsetz’s cost-benefit argument. From early protections for planters of Chesapeake seed to the steam-friendly perpetual franchise regime of the 1881 reforms, Connecticut’s property laws evolved to enable the greater economic benefits that changing technologies and markets made possible. Yet this wave of legal change only advanced so far. From its eventual dissipation and the dogged survival of the imperfectly efficient, eminently traditional natural bed regime, we can draw two broad conclusions about property law.
First, many forms of property regulation other than formal privatization can promote economic efficiency, including internally heterogeneous, or hybrid, property systems, as Connecticut’s experience demonstrates. Specifically, the history of Connecticut oystering shows that spatially heterogeneous regimes encompassing both common access and privatization can sustain informal institutions that mitigate costs and foster efficiency-enhancing internal interactions.
Second, efficiency-focused explanations of the emergence of property rights and the existence of hybrid property systems are fundamentally incomplete. Property hybridity can emerge and survive not only when it is economically optimal but also when it fulfills political imperatives. Connecticut’s natural beds were a resource with particular ideological and political resonance, and this resonance was amplified in the economically and socially tumultuous years of the late 1800s. The history of Connecticut’s regime of hybrid property in oyster grounds is one of lawmakers who struggled to reconcile this unique political resonance with the promise of efficient production. It proves both that efficient privatization does not inevitably triumph in property law and that ultimately no single regime may triumph.
In sum, Connecticut’s historic oyster property regime demonstrates that spatially hybrid property regimes can have both economic and political virtues.201 Moreover, the specific functions of Connecticut’s spatially hybrid regime, and the specific needs it fulfilled for that state’s oystermen, entrepreneurs, and voters, reflect circumstances in which hybrid regimes may be more likely to emerge and persist in the real world. For example, Connecticut’s experience suggests that, where common access to certain areas is highly politically salient, legislators may be more likely to preserve common access intact within those areas and push privatization further elsewhere rather than bringing all areas under a regime that embodies both open access and private property features. Similarly, where a high degree of certainty is required to encourage investment, legislators may provide it through privatization in certain areas and push common access elsewhere. Legislators may also be more likely to strike such a spatial compromise when common-access areas produce a usable output for enclosed areas despite overexploitation, thereby mitigating the economic costs of partial non-enclosure. Finally, legislators may be more likely to choose a hybrid regime when that regime is able to preserve or even strengthen existing informal governance mechanisms in open-access areas.
This Note has broadly discussed the potential economic and political virtues of spatially hybrid regimes, and it has identified some basic conditions that may help them emerge and persist. Studies of other hybrid regimes could further substantiate the intuitions developed here, in addition to identifying other factors that may determine when such regimes will develop. Having emerged simultaneously as part of a single, broad compromise among competing interests, the case of Connecticut’s coexisting private and public oyster grounds constitutes a vivid and discrete historical example of a hybrid regime. Nonetheless, regimes that spatially intersperse common and private property exist all around us. For example, federal and state policymakers are increasingly embracing marine spatial planning, in which sub-areas of the ocean are defined and subjected to different property rules (for example, rules that allow or forbid private leasing for energy production) as a politically and economically expedient alternative to traditional, more spatially uniform maritime regulation.202 Or consider the archipelago of sub-territories within federally owned and administered lands, many of which allow for a substantial degree of private control and exploitation.203
To be sure, these modern regimes are more sprawling and sophisticated than the system that governed Henry Rowe and Captain Bob. But, just like Connecticut’s regime, these modern regimes use hybridity in an effort to attain a reasonable balance among citizens’ diverse goals, values, and ways of life. The history of Connecticut oystering shows that hybrid property regimes can succeed in this fundamental task, and that they can serve as stable, productive solutions to the never-ending struggle for property rights.
Detail from an 1889 map of Connecticut oyster grounds, showing natural beds and rectilinear private tracts off the coast of Bridgeport and Stratford. The famous Bridgeport natural bed is the trapezoidal area at top center. Courtesy Mystic Seaport, G.W. Blunt White Library.