The lost record of Pierson v. post, the famous fox case

Law and History Review

Volumn 27, Issue 1, 2009, Pages 149-178

  Fernandez, Angela ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 67649708208     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000001693     Document Type: Review

References (42)

1. See Edward H. Warren, Select Cases and Authorities on the Law of Property (Cambridge, [Mass.]: The Editor, 1915), 1-3. Earlier non-first page appearances include: William Sullivan Pattee, Illustrative Cases in Personalty (Philadelphia: T. & J. W. Johnson, 1893), 1:19-22 (in a section on animals ferae naturae) and John D. Lawson, Select Cases in the Law of Personal Property: with Analysis and References to Other Cases (Columbia, Mo.: E. W. Stephens, 1896), 164-67 (under "capturing wild animals")
2. Joseph William Singer, "Starting Property," Saint Louis University Law Journal 46 (2002): 565, 566
3. See also, Andrew P. Morriss, "Review of Jesse Dukeminier and James E. Krier, Property (4th Edition 1998)." Seattle University Law Review 22 (1999): 997, 998-99 (discussing the treatment of Pierson v. Post in this popular property casebook and referring to its treatment as "typical of the high quality of the casebook's supplemental material")
4. Peter T. Wendel, "Using Property to Teach Students How to 'Think Like a Lawyer': Whetting Their Appetites and Attitudes," St. Louis University Law Journal 46 (2002): 733, 735-36
5. See Barry Brown. "The Old Chestnut Explored: Thoughts about the Survival of Casner's Cases and Text on Property Long Past Its Prime," Seattle University Law Review 22 (1999): 947
6. See, e.g., Richard A. Epstein, "Possession as the Root of Title," Georgia Law Review 13 (1979): 1221; Carol M. Rose, "Possession as the Origin of Property," University of Chicago Law Review 52 (1985): 73; Charles Donahue, Jr., "Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N. Y.," in Studies in Roman Law: In Memory of A. Arthur Schiller, ed. Roger S. Bagnall and William V. Harris (Leiden: E. J. Brill, 1986), 39-63; Alan Watson, "Introduction to Law for Second Year Law Students," Journal of Legal Education 46 (1996): 430; James E. Krier, "Capture and Counteraction: Self-Help by Environmental Zealots," University of Richmond Law Review 30 (1996): 1039; Dhammika Dharmapala and Rohan Pitchford, "An Economic Analysis of 'Riding to Hounds': Pierson v. Post Revisited," Journal of Law, Economics & Organization 18 (2002): 39; Henry E. Smith, "The Language of Property: Form, Context, and Audience," Stanford Law Review 55 (2003): 1105. There are many more articles than this-pieces from the environmental law scholarship alone would constitute a small bibliography (these relate to "the rule of capture" and fugitive resources like oil and gas), as well as those relating to other animals like whales and wolves. There is also a noteworthy handful on baseballs and who owns them when they are hit into the stands
7. George Caines, New-York Term Reports: Or Cases Argued and Determined in the Supreme Court of that State [1803-1805] (New York: Printed for Isaac Riley, 1806), 3:175-82
8. See Andrea McDowell. "Legal Fictions in Pierson v. Post" Michigan Law Review 105 (2007): 735 (exploring a variety of nonsensical features in Livingston's dissent). Professor McDowell's work on the dissent, which 1 first heard at the American Society for Legal History Conference in Austin, Texas, October 2004, is what piqued my interest in the case
9. Transcript of the Judgment Roll in Pierson v. Post, www. historycooperative.org/Ihrindex.html. Quotes in the article with in-text citation to transcript, page numbers are to the diplomatic transcription located here
10. James Kent, Commentaries on American Law, vol. 2 (New York: O. Halsted, 1827). See Angela Fernandez, "Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State," forthcoming in Law and Social Inquiry 34.2 (Spring 2009)
11. See H. P. Hedges, "Pierson vs. Post," The Sag-Harbor Express, Thursday, 24 October 1895, front-page, from which all quotes are taken. Hedges's account was reproduced in an abbreviated form in James Truslow Adams. Memorials of Old Bridgehampton (Port Washington, Long Island. N.Y.: Ira J. Friedman, 1962, original copyright, 1916), 166-67, as well as William Donaldson Halsey, Sketches from Local History (Southampton, N.Y.: Yankee Peddler Book Company, 1966), 131
12. See Bethany Berger, "It's Not About the Fox: The Untold History of Pierson v. Post," Duke Law Journal 55 (2006): 1089, 1135
13. See Fernandez, "Pierson v. Post: A Great Debate."
14. See John H. Langbein, "Chancellor Kent and the History of Legal Literature," Columbia Law Review 93 (1993): 547; John Theodore Horton, James Kent: A Study in Conservatism, 1763-1847 (New York; London: D. Appleton-Century, 1939)
15. See also Alan Watson, "Chancellor Kent's Use of Foreign Law," in The Reception of Continental Ideas in the Common Law World, 1820-1920, ed. Mathias Reimann (Berlin: Duncker & Humbolt, 1993), 45-62; David W. Raack, '"To Preserve the Best Fruits': The Legal Thought of Chancellor James Kent," American Journal of Legal History 33 (1989): 320; Carl F. Stychin, "The Commentaries of Chancellor James Kent and the Development of an American Common Law," American Journal of Legal History 37 (1993): 440; Gregory Alexander, Commodity and Propriety: Competing Visions of Property in American Thought, 1776-1970 (Chicago & London: University of Chicago Press, 1997), 127-57; Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2005), 274-302
16. See Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005), 29-36, 74 (explaining how the taint of suspicious pleadings in Fletcher v. Peck, a collusive case made up for the purpose of obtaining a United States Supreme Court ruling, infected the course of Johnson v. M'Intosh)
17. See Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West, 1990), s.v. "writ" and "certiorari." See also James D. Folts, "Duely and Constantly Kept": History of the Supreme Court of Judicature, 1691-1847, and an Inventory of its Records (Albany, Utica, and Geneva Offices), 1797-1847 (Albany: New York State Court of Appeals & the New York State Archives and Records Administration, 1991), 21 (the writ of certiorari was used "to remove judgments in justice's civil courts directly to the Supreme Court for review... A party seeking review by certiorari was required to submit an affidavit stating the grounds for the writ. Based on the affidavit, the Supreme Court justice could allow the writ upon reasonable cause, 'either for error therein or some unfair practice of the justice'"). A PDF copy of this resource is available at http://www.courts.state.ny.us/history/ pdf/Library/Research/Duely-and-Constantly- Kept.pdf (last visited November 6. 2007). Page numbers correspond to topics as they are listed in the table of contents in this electronic version
18. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union, with References to the Civil Law and other Systems of Foreign Law (Philadelphia: T. & J. W. Johnson, 1839; reprint. New York: The Lawbook Exchange, 1993), 1:163
19. George Caines, A Summary of the Practice of the Supreme Court of the State of New York (New York: Isaac Riley, 1808), 1:2 ("February and August terms are held in Albany; May and November, in New-York"). Early American Imprints, Series II: Shaw-Shoemaker 1801-1819. Shaw & Shoemaker 14628. Record Number: 104404614FA58DE0; w274778. American Antiquarian Society and NewsBank, 2004. http://infoweb.newsbank.com (accessed October 10, 2007)
20. See Michael Griffith, "[Review of] 'Duely and Constantly Kept': A History of the New York Supreme Court, 1691-1847, and An Inventory of Its Records (Albany, Utica, and Geneva Offices), 1797-1847 by James D. Foils," The Public Historian 14.3 (1992): 127-29, 129
21. See Halsey, Sketches from Local History, 14 (noting that the spelling of the name of the first Town Clerk, Henry Peirson, was "[l]ater changed to Pierson"). See also 34 (where school records have Jesse spelled both ways, along with many other "Peirsons"). Another variation on Jesse's name in particular is "Jessee Pearson," used in the 1800 Suffolk County Census, available at http://www.rootsweb.com/nysuffol/1800csh.html (last visited June 11, 2008). Yet another variation is "Person." See Tracing the Past: Writings of Henry P. Hedges, 1817-1911, relating to the history of the East End, ed. Tom Twomey (New York: Newmarket Press. 2000), 59
22. Hedges referred in his account to Post's "companions," who were hunting with him. Perhaps these were the witnesses. See Hedges, Sag Harbor Expmss
23. See Esek Cowen, A Treatise on the Civil Jurisdiction of a Justice of the Peace, in the State of New York (Albany: W. M. Gould, 1821), 320. The Making of Modern Law. Gale. 2007. Thomson Gale. 08 November 2007 http://galenet.galegroup. com/servlet/MOML?af=R N&ae=F105917386&srchtp=a&ste=14. Document number F105917386. Thanks to Donald Roper for his direction to this source
24. George Caines, Practical forms of the Supreme Court taken from Tidd's Appendix of the forms of the Court of King's bench, in personal actions, and adapted to the Supreme Court of the state of New-York (New York: Alsop, Brannon and Alsop, 1808), 41-42, 53-54. Early American Imprints, Series II: Shaw-Shoemaker 1801-1819. Shaw & Shoemaker 14627. Record Number: 104404614BD07D88: w274777. American Antiquarian Society and News-Bank, 2004. http://infoweb.newsbank.com (accessed October 10, 2007)
25. note Transcript, p. 14). Nathan Sanford built a "marble-adorned mansion" there. See Berger, "It's Not About the Fox," 1134 n. 260. However, this appeared to be later in life. See Donald M. Roper, "The Elite of the New York Bar as Seen from the Bench: James Kent's Necrologies," The New York Historical Society Quarterly 56 (1972): 199, 230 (James Kent wrote that Sanford "spent his last years in building a most extravagantly expensive but inconvenient House")
26. See Caines. A Summary of the Practice of the Supreme Court of the State of New York, 5
27. Lawrence H. Officer and Samuel H. Williamson, "Purchasing Power of Money in the United States from 1774 to 2006" (MeasuringWorth.Com, 2007), using the calculators for measuring the worth of money over time, available at http://measuringworth.com/calculators/ppowerus/
28. See Cowen, A Treatise on the Civil Jurisdiction of a Justice of the Peace, 426
29. Hedges, Sag Harbor Express
30. See Patricia U. Bonomi, A Factious People: Politics and Society in Colonial New York (New York and London: Columbia University Press, 1971), 22-24
31. See Berger, "It's Not About the Fox," 1125-33
32. Donahue. "Animalia Ferae Naturae: Rome. Bologna, Leyden, Oxford, and Queen's County, N.Y.," 47-48
33. See also Charles Donahue, Jr., "Noodt, Titius, and the Natural Law School: The Occupation of Wild Animals and the Intersection of Property and Tort," in Satura Roberto Feenstra, ed. J. A. Ankum, J. E. Spruit, and F. B. J. Wubbe (Fribourg: Presses Universitaires Fribourg Suisse, 1985), 609-29, 611
34. See A. W. B. Simpson, "The Timeless Principles of the Common Law: Keehle v. Hickeringill (1707)." in Leading Cases in the Common Law (Oxford: Oxford University Press, 1995), 45-75, 64
35. Cowen, Preface to A Treatise on the Civil Jurisdiction of a Justice of the Peace, iii
36. See A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginian Legal Culture, 1680-1810 (Chapel Hill: University of North Carolina Press, 1981), 33-34
37. On lay justice generally, see John P. Dawson, A History of Lay Judges (Cambridge: Harvard University Press, 1960)
38. Cowen, Preface to A Treatise on the Civil Jurisdiction of a Justice of the Peace, v
39. Roeber, Faithful Magistrates and Republican Lawyers, 18
40. See Caines, A Summary of the Practice of the Supreme Court of the State of New York, 147 n. 3 (a note next to the term in the introductory heading of a roll entry stating that this is to be "[t]he term in which you make up your roll")
41. See, e.g., Caines, Practical forms of the Supreme Court, 18-19, 51
42. Brown, The Justices' directory, or points on Certiorari