The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent∗

“[W]hatever it is that the law is after[,] it is not the whole story” - Clifford Geertz1

Pierson v. Post – the famous New York foxhunting case – is usually used to introduce students to the concept of possession in property law. An exotic majority opinion (with long Latin passages and references to far flung sources) by Judge Tompkins and an almost farcical dissent by Judge Livingston, combine to make the New York Supreme Court decision memorable. The Chief Justice of the court when the case was decided, James Kent, is rarely mentioned in connection with it. However, annotations he made on his copy of the case and later use of it in his own work, Kent’s Commentaries, evidence a level of interest beyond the casual, making one wonder whether he played a role in the affair greater than his silence at the time would indicate. This paper argues that Kent was responsible – either directly or indirectly – for the learned way in which the case was dealt with, both by the lawyers who argued it and by the majority Judge Tompkins. It is as if Kent treated these more junior legal personnel as students, setting them to do their best on a chestnut Roman and civil law problem: how does one acquire property in wild animals? Kent would have had two motives for doing this, which this paper explores. First, to provide a pedagogical exercise for junior members of the bar and bench, whom he wanted to train to work with foreign authorities and speak in the scholarly style he thought should characterize American legal debate. Second, to create an American precedent on a classic issue that Blackstone gave no guidance on, which Kent and those interested in creating scholarly scientific law for the new nation could cite in their written work. This is a story, in other words, of Kent profiting from what is termed here his pushy pedagogy and the proprietary approach he took to the New York Supreme Court, its reports, and its personnel. As one of the fading Federalists of the early nineteenth century, Kent would have been increasingly aware that didactic influence through the courts and his scholarly work would soon be all he had left. The argument is that Pierson v. Post – a case about which many legal scholars have had much to say – is best understood in terms of his influence.

∗ Angela Fernandez, Assistant Professor, Faculty of Law, University of Toronto. This paper has been presented at the Law & Society Meeting in Baltimore, Maryland, July 2006, and the Legal History Group at the Faculty of Law, University of Toronto, March 2006 and January 2007. Many thanks to Andrea McDowell, Bethany Berger, Debora Threedy, Robert Gordon, Stephen Waddams, Darlene Johnston, Blaine Baker, Lisa Austin, Denise Réaume, Karen Knop, Michael Marrus, and Philip Girard. Conversations with Donald Roper have also been helpful. Thanks also to Helen Weltin, Manuscripts and Special Collections, New York State Library, Cultural Education Center, Albany, N.Y., Whitney Bagnell, Librarian for Special Collections in Law, Columbia University, staff at the New York State Library’s Newspaper Project, Cultural Education Center, Albany, N.Y. and those at the law library “infoexpress” service at the Faculty of Law, University of Toronto. The paper profited greatly from work done by my research assistant, Alex Zavaglia, during the summer of 2006. Comments and suggestions from Matias Milet are also appreciated. 1 CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 173 (1983). 2

I. Introduction

Of the countless people who have read Pierson v. Post, many of them have

probably thought there was something odd about it, sensing eccentricity but unable to put

their finger on the problem.2 There is the comic mode of the Livingston dissent, its

curiously inaccurate understanding of foxhunting, and the issue of how much of it should

be taken seriously.3 There is the human/economic question: why would the litigants

spend the amounts needed to establish rights over something of so little value and

seemingly so insignificant? The answer usually given has been human willfulness.4

However, that response does not address the institutional question that cries out for explanation, namely why the lawyers and judges involved in the case would lavish such

care on a neighborhood feud? The stubbornness of the litigants cannot explain why a

court like the New York Supreme Court would expend the kind of energy it did on a

dispute about a fox pelt worth about a dollar in a case that given a more ordinary

treatment no one would have thought was worth reporting.5

The answer I propose has less to do with what happened in Sag Harbor, Long

Island sometime in 1804, than with events supposed to be unfolding further north, in

James Kent’s court in Albany in 1805, namely how the case ended up being treated as it

was at the New York Supreme Court. As I see and tell it, the dispute over the fox

presented a twofold opportunity Kent and those under his influence at that court would

2 Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). Pinpoint cites are to the page numbers in the second edition of Caines Reports, 1814, which is reproduced in Appendix I. See infra note 78, for full bibliographical information. 3 See Andrea McDowell, Legal Fictions in Pierson v. Post, 105 MICH. L. REV. 735 (2007). 4 See Bethany R. Berger, It's Not About the Fox: The Untold History of Pierson v. Post, 55 DUKE L.J. 1089 (2006). 5 See McDowell, supra note 3, at 763 (providing prices of fox pelts, $1 being the market price in 1815). See also Sharpe v. Sabin (1796) (virtually identical unreported case identified and reproduced by McDowell, supra note 3, at 777). 3

have seized: first, to have a scholarly debate on an old vexing question (how does one

acquire possession in wild animals); and second, to generate a home-grown American

precedent on the point (he who seizes takes). Although there is no “smoking gun” that

proves beyond a doubt that Kent arranged for the case to be heard for the reasons I

suggest, there is ample circumstantial evidence of his involvement. And there is certainly no denying that he was later intensely interested in the case – as annotations he made on

his copy of the case and subsequent treatment in his famous work Kent’s Commentaries

show.

James Kent was Chief Justice of the New York Supreme Court the year Pierson v.

Post was decided.6 Probably because he was silent in the reported case – the majority decision was written by Daniel Tompkins, accompanied by a striking dissent by

Brockholst Livingston – Kent is rarely mentioned in connection with it. However, annotations Kent made on his copy of the case and his later use of it in Kent’s

Commentaries show an intense learned interest in it, both of which beg for explanation.

This paper argues that the level and type of interest Kent took in the case strongly suggest that it was he who was responsible for the scholarly way in which it was treated at the

New York Supreme Court, either directly or indirectly. This is a theory that would

6 There is no recent biography of Kent. There is, however, an older biography, JOHN THEODORE HORTON, JAMES KENT: A STUDY IN CONSERVATISM, 1763-1847 (1939). See also WILLIAM KENT, MEMOIRES AND LETTERS OF JAMES KENT (1898). There is a helpful article by John Langbein, on which I rely, particularly for its notion of “learnedness” and its connection to Kent. See John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 COLUM. L. REV. 547, 566-70 (1993). See also D.W. Raack, To Preserve the Best Fruits: The Legal Thought of Chancellor James Kent, 33 AM. J. LEGAL HIST. 320 (1989); Carl F. Stychin, The Commentaries of Chancellor James Kent and the Development of an American Common Law, 37 AM. J. LEGAL HIST. 440 (1993); GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN THOUGHT, 1776-1970, 127-57 (1997); DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664-1830, 274-302 (2005). 4

explain the exaggerated styles of the decisions, both majority and dissent, which have

gone unaccounted for in other analyses of the case.

We will see that Tompkins’s majority opinion is nothing like any other decision

he wrote. Its long Latin passages and references to eminent legal scholars, particularly

civilian authors, were very unusual for him.7 Indeed, a review of three volumes of New

York Supreme Court decisions from the period demonstrates that there was something

very special about Pierson v. Post.8 This is not a case that happened to illustrate the

concept of first possession in the context of the classic Roman and civil law demonstration of the point, namely wild animals. Kent, intimately familiar with the sources in which that classic treatment occurred, would have immediately seen in the facts of the case – an argument over a fox – an opportunity deliberately to generate an

American version of that debate and answer for America the question Blackstone left unanswered. The idea is that he would have pushed those under his tutelage at the New

York Supreme Court to approach the case as that kind of opportunity.

Why would Kent act as this kind of pushy preceptor? He would have had at least two motives for encouraging it to be treated in the elaborate way that it was in his court.

First, he might have wanted to provide his “students” (junior members of the New York

bar and bench) with an edifying exercise of the sort that typified – albeit in exaggerated

guise – the learned style he thought should characterize American legal discourse and

that he thought others should emulate. He was interested, in other words, in providing a

7 See infra p. 55. 8 Of the 418 cases for which there are written decisions in the three volumes of Caines Reports, I can find no other judgment comparable to Pierson v. Post in terms of its use of so much Latin and such a dense concentration of Roman and civilian authorities without an immediate commercial context. See GEORGE CAINES, NEW YORK TERM REPORTS OF CASES – ARGUED AND DETERMINED IN THE SUPREME COURT OF THAT STATE, Early American Imprints, 2d ser., 1804, no. 6915, 3 vols. (Shaw-Shoemaker Bibliography, 1801-1819). 5

training exercise for those who showed promise in this respect, much like a moot court

exercise, putting the junior lawyers through their jurisprudential paces. Secondly, Kent

would have known there was a need for an American precedent on this point for a

properly scholarly treatment of property law. In other words, Kent needed a precedent

with a pedigree worthy of inclusion in a scholarly commentary and he saw an opportunity to make it, through the use of the court and its personnel, in Pierson v. Post.

These two reasons explain why the case was given the elaborate treatment it was,

of the kind it was, despite the absence of an immediate commercial context that might –

in a stretch – warrant such lavish attention being paid to it. This was actually a very

important case from the perspective of someone who cared, as Kent intensely did, about

filling a glaring gap in a scholarly treatment of American property law. He used it in just

this way in Kent’s Commentaries. The argument to consider is whether Kent should be

characterized as the unacknowledged eminence grise of the whole affair. He either

directly prompted those involved in the case to take it up as they did, or perhaps, because

the court under his influence was a place in which those who were there knew that Kent

wanted points of law to be treated in a learned way, they decided to take it up that way a

là Kent, as it were. Other work on this famous case has edited out the unfamiliar and

foreign legal references and recast the legal reasoning in the case in economic or some

other set of modern policy concerns.9 This paper sets out in the opposite direction,

offering a historical explanation that takes seriously why those references were there and

asks what the case meant to those who were actually involved in it.

9 See, e.g., Dhammika Dharmapala & Rohan Pitchford, An Economic Analysis of “Riding to Hounds”: Pierson v. Post Revisited, 18 J.L. ECON. & ORG. 39 (2002); James E. Krier, Capture and Counteraction: Self-Help by Environmental Zealots, 30 U. RICH. L. REV. 1039 (1996); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985); Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV. 1105 (2003). Discussed by McDowell, supra note 3, at 765-70. 6

We will see that Brockholst Livingston, no slouch in understanding and using foreign law, was apt to use some quite exotic civil law when a specialized area like admiralty law required it. Hence, his defiant, almost xenophobic tone, in Pierson v. Post

– like most everything else in that opinion – was not serious.10 In fact, I do not think he

was registering disagreement in any way in his dissent in the case. Not with Tompkins’s

formulation of the rule (like Kent he was probably indifferent to its outcome) or the

happening of the debate per se (Kent using the court to train students). Livingston would

have approved of an exercise in foreign law training he knew well was important in the

right kind of case (where there was an immediate commercial context), providing the

dissent in order to complete the exercise, namely demonstrate for the edification of those

involved a contrary formulation.

As one of the fading Federalists of the early nineteenth century – a category that included other judge and legal treatise writing teachers like Joseph Story in

Massachusetts and Tapping Reeve in Connecticut – Kent would have been keenly aware

of a declining ability to influence the social and political world through his judicial

office.11 The tide began to turn against the Federalists with Thomas Jefferson’s win of

the presidential election in 1800. Kent was busily fighting democratic reform originating

in the New York legislature. The Council of Revision, for instance, where judges like

Kent sat and vetoed much such legislation, was abolished under the new 1821

Constitution, property requirements for the franchise were eliminated, and although the

10 See McDowell, supra note 3, at 741-42. 11 For similar story of Tapping Reeve attempting to establish and preserve influence through his teaching and early treatise-writing in early nineteenth-century Connecticut see Angela Fernandez, Spreading the Word: Litchfield Law School to the Harvard Case Method (J.S.D. Dissertation), draft in-progress available on file with the author. 7

court of equity survived, Kent would see his salary as Chancellor decrease, and he would

be forced to retire in 1823 by a new age limit adopted at the Constitutional Convention.12

The power Kent exercised in judicial office – what I call the proprietary attitude he took toward the court, its reports, and its personnel – was something he would have known that he needed to jealously guard against incurring forces. Choice over which cases came before the court and how they would be treated was a sphere in which he could exert his influence – use them to decide, for instance, who of the junior members of bar and bench were worthy, who were not. Scholarly treatise writing, the activity he took up with vigor in the Commentaries after the forced retirement, was one way for him to fix that influence. We will see that it was his formulation of the rule in his Commentaries and not Tompkins’s version in Pierson v. Post that was adopted by Oliver Wendell

Holmes Jr., who reproduced what Kent said in his famous treatment of possession. By the 1820s, Kent’s power was fading. He may no longer have been able to do things like angle for United States Supreme Court appointments for himself or his protégés.13

However, he was still in a position to write definitive scholarly statements of American common law in a learned style using ground he had assiduously laid in cases like Pierson

v. Post. Whether this was a successful vehicle or not is another story, but Kent probably saw his work on the Commentaries as picking up where his political/judicial career left off.

The argument then in terms of Pierson v. Post is that Kent would have leaped at

the opportunity to arrange for a gap in the law to be filled in 1805 and was able to do so

12 See HORTON, supra note 6, at 232-63; MEMOIRES AND LETTERS, supra note 6, at 177-81. See also ALEXANDER, supra note 6, at 108-9 (on the convention abolishing both the Council of Revision and the Council of Appointment due to the way that they limited the power of the legislature). 13 HORTON, supra note 6, at 297 (Story wrote to Kent in 1844 that “President Tyler had declared ‘he never would appoint a Judge of the school of Kent’”). 8

as the Chief Justice of the New York Supreme Court that decided the case. He then

determined how the legal rule would be expressed in his Commentaries in 1827. We will

see that this consolidation weeded out dissent we know he knew existed on the property

law point at issue in Pierson v. Post. This says something important about how he saw the role of the commentator, namely to fix the law, where that was relatively non contentious. If the pushy pedagogy theory is correct, what was important to him was to have the matter decided in the form or style that he thought American legal science should aim to emulate. Tompkins did his best with his pyrotechnical Latin to do what his teacher Kent wanted, producing a decision that attempted to be scholarly and learned.

Livingston, on the other hand, could not help but make fun. Kent’s staging of the event, in other words, would have warranted a send-up in Livingston’s view, which is precisely what he delivered to the delight of generations of law students.

II. Background of the Case

The facts of the famous New York state appellate foxhunting case were these.

Lodowick Post was out one day hunting with “dogs and hounds” on a Long Island beach

when a schoolteacher, Jesse Pierson, swooped in and killed the fox that Post had been

pursuing. The legal question was whether the pursuit had given Post “an exclusive right

whilst … [the wild animal] is followed.”14 The declaration stated that “Pierson, well

knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his

catching the same, kill and carry it off.”15 Post’s lawyer claimed that Post’s pursuit was

“all the possession the nature of the subject admits; it declares the intention of acquiring

14 Pierson v. Post, 3 Cai. R. 175, 176 (N.Y. Sup. Ct. 1805). 15 Id. at 175. 9

dominion, and is as much to be respected as manucaption itself.”16 Pierson’s lawyer

claimed that the fox had to be reduced by Post to actual capture. Prior to that point in

time, the fox was free to be taken by whoever could successfully do so – in this case,

Jesse Pierson.

Tompkin’s majority opinion found for Pierson, repeating the various statements

Pierson’s lawyer cited from Justinian’s Institutes, Fleta, Bracton, and Pufendorf to

support the argument that capture was required to establish possession in wild animals,

fera naturae. Tompkins wrote that these authorities “are decisive to show that mere

pursuit gave Post no legal right to the fox, but that he became the property of Pierson,

who intercepted and killed him.”17 The reasoning continued, “[i]t therefore only remains

to inquire whether there are any contrary principles, or authorities, to be found in other

books, which ought to induce a different decision.”18 Tompkins dealt with the primary troublesome authority, namely Barbeyrac, who in a note on Pufendorf’s text argued that

“actual bodily seizure is not, in all cases, necessary to constitute possession of wild

animals.”19 Tompkins acknowledged that this was so. There were other things short of actual bodily seizure that would result in possession sufficient to exclude others. These

were acts like mortal wounding by one not abandoning pursuit or capturing in nets or

traps such that the animal could not escape.20 He equated Barbeyrac’s objection with

some Latin passages from Grotius.21 And concluded that “the limits prescribed by the

learned authors” are best “for the sake of certainty, and preserving peace and order in

16 Id. at 176. 17 Id. at 177. 18 Id. 19 Id. 20 Id. at 178. 21 Id. 10

society.”22 Pierson’s behavior might have been “uncourteous or unkind,” Tompkins

wrote, but “was productive of no injury or damage for which a legal remedy can be

applied.”23 Allowing Post his action, as did the court below did, would make for “a

fertile source of quarrels and litigation.”24

This bit of “functional” reasoning in a set of reasons that were predominantly

“formalistic” (i.e. passively following the views of foreign and specifically civilian

authorities) was strongly reminiscent of Blackstone. Although no lawyer or judge in the

case referred to this part of Blackstone’s Commentaries, his first chapter in the book on

property contained the same point about the need to avoid what Tompkins called

“quarrels and litigation.” Indeed, “let there be no strife” was one of the themes of

Blackstone’s introduction to property law.25 According to Blackstone, property that must

“unavoidably remain in common” due to the fact that a usufructuary right was all that

could be had “still belong[ed] to the first occupant”:

Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such also are the generality of those animals which are said to be ferae nature, or of a wild and untameable disposition; which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to seise and enjoy them afterwards.26

Blackstone made it clear that he thought it was a bad idea for there to be much of this kind of property. Indeed, he pointed specifically to “the forests and other waste grounds,

22 Id. at 179. 23 Id. 24 Id. 25 See, e.g., 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 4 (1766) (on the “innumerable tumults” that would arise from property held in common). See also id. at 5-6 (pointing to “violent contentions concerning wells” in the book of Genesis given the difficulty of establishing who the person was who had first dug the well and hence had first occupancy), 6 (quoting Abraham to Lot “let there be no strife, I pray thee, between thee and me.”), 10 (referring to the “endless disturbances” that would result without a rule for the disposition of property at death). 26 Id. at 14 [emphasis added]. 11

which were omitted to be appropriated in the general distribution of lands,” including the

“species of wild animals” on them.27 Why was this kind of property undesirable?

“[D]isturbances and quarrels would frequently arise among individuals, contending about

the acquisition of this species of property by first occupancy.”28

Hence, it was important that the facts of Pierson v. Post to state that the fox in

question was started “upon a certain wild and uninhabited, unpossessed and waste land, called the beach.”29 In England, most land was either Crown land or privately owned by

being held of the Crown. Crown land unquestionably belonged to the King and an

animal caught on it was considered royal game, whereas one caught on private property

belonged to the owner of the property. Blackstone explained this in a passage that was

cited by counsel in the case.30 Most animals would likely be caught on one of these two types of land and there was therefore an easy way to assess their ownership. However, land that was not owned by the King or held of him was called “wasteland” or the commons. These were lands “on which the whole community had rights of pasturage, wood-cutting, or the like.”31 Such land “came to be regarded as the lord’s waste, over

which the dwellers within the district exercised certain customary rights.”32 In post-

revolutionary America, the Crown could not be used to turn “wasteland” to “the lord’s

waste” in this way. An animal like the fox in Pierson v. Post that was not caught on

27 Id. [emphasis added]. 28 Id. at 15. 29 Pierson v. Post, 3 Cai. R. 175, 175 (N.Y. Sup. Ct. 1805). 30 See 2 BLACKSTONE, COMMENTARIES, supra note 25, at 403 (“The restrictions which are laid upon this right [to seize wild animals], by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals, which are not expressly so reserved, are still liable to be taken and appropriated by any of the king’s subjects, upon their own territories”). See also Pierson, id. at 175. 31 KENELM EDWARD DIGBY, AN INTRODUCTION TO THE HISTORY OF THE LAW OF REAL PROPERTY 12 (1875). 32 Id. at 21. See also E.P. THOMPSON, CUSTOMS IN COMMON 127-36 (1991) (on the inevitable conflict this gave rise to). 12

privately owned land but on “wasteland” was not land that could be conceptualized as

“the lord’s waste.” Therefore, it had the potential to create the “disturbances and quarrels” Blackstone was so keen to warn about and it could not use the mechanism of the “the lord’s waste” to solve the problem.

According to Blackstone, English law “wisely cut up the root of dissension, by

vesting the things themselves in the sovereign or the state; or else in his representatives,

appointed and authorized by him, being usually the lords of manors.”33 In other words,

extend feudal treatment, from the ground up, to the very beasts that walked the English

soil. Thus, peace was acquired “by steadily pursuing that wise and orderly maxim, of

assigning to every thing capable of ownership a legal and determinate owner.”34

America lacked this infrastructural default mechanism for avoiding dispute. Hence, there was a gap created by post-Revolutionary conditions that needed to be filled and the answer could not be found, as it so often was, in Blackstone.

Charles Donahue said in his work on the case “[i]t is all very strange … the point

of Post’s suit against Pierson is not that Pierson took Post’s fox. The point is that Pierson

interfered with the hunt.”35 However, framing the case in terms of interference in the

hunt would have left this basic property issue undecided.36 The point about wasteland is

that by approximating the state of nature in philosophical treatments of property law, the

33 2 BLACKSTONE, COMMENTARIES, supra note 25, at 15. 34 Id. 35 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 39, 48 (Roger S. Bagnall & William V. Harris eds., 1986). 36 So, for instance, an English case that was about interference with wild ducks, Keeble v. Hickeringill was distinguished on the ground that the ducks in that case that were interfered with were on the land of the plaintiff and so in his possession. Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805) (“the ducks were in the plaintiff’s decoy pond, and so in his possession, from which it is obvious the court laid much stress in their opinion upon the plaintiff’s possession of the ducks, ratione soli”). See also A.W.B. Simpson, The Timeless Principles of the Common Law: Keeble v. Hickeringill (1707), in LEADING CASES IN THE COMMON LAW 45-75 (1995). 13

case would logically turn to the civil and Roman law authorities in which this problem

was vetted. Why? Here was a tradition of thinking about property in absolute rather than

feudal terms that a post-revolutionary America required once it no longer had a Crown.

In order to fill this gap, the issue would have to be framed in terms of ownership of

animals on land that was neither privately held nor belonged to the King in order for the

new nation to have its own version of this classic debate, which is what the lawyers and

judges involved in the case wanted.

This legal point is not made very clear in Tompkins’s opinion for the court.

However, he does explain that the English reporters were of little use due to the fact that

most of the English cases on property in wild animals were of two types. First, there

were those that were “discussed and decided upon the principles of their positive statute

regulations.”37 He probably had in mind those relating to royal game that Blackstone

spoke about in the passage that was cited by counsel.38 The second were those that “have

arisen between the huntsman and the owner of the land upon which beasts ferae naturae

have been apprehended; the former claiming them by title of occupancy, and the latter

ratione soli [i.e., on account of the soil].”39

There was, in other words, much to grapple with in Tompkins opinion of specific

interest to a developing American common law. However, it is probably fair to say that

the more senior and lively Livingston hijacks the proceedings with a series of descriptions presented with extraordinary literary and rhetorical flair and broad-based

37 Pierson, 3 Cai., at 177. 38 See infra note 30. 39 Pierson, 3 Cai., at 177. 14

policy reasons that make it difficult to continue to focus on narrow doctrinal niceties.40

So, for example, the fox itself, “a wild and noxious beast,” is said to be regarded by both parties “as the law of nations does a pirate” and whose “depredations on farmers and on barn yards” are such that “to put him to death wherever found, is allowed to be meritorious, and of public benefit.”41 The decision, Livingston wrote, should give “the

greatest possible encouragement to the destruction of an animal, so cunning and ruthless

in his career.”42 This meant that hunters like Post should be encouraged in their pursuits.

Evidencing the intent to take a hunted animal should be enough to establish a possession

over it that would exclude others. Property in wild animals “may be acquired without

bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable

prospect (which certainly existed here) of taking.”43

Interlopers like Pierson should not be allowed to swoop in and make off with the

prize. “[Have we not] a right to establish a rule for ourselves?”44 Livingston wrote that

“[such] a knotty point … should have been submitted to the arbitration of sportsmen,

without poring over Justinian, Fleta, Bracton, Pufendorf, Locke, Barbeyrac, or

Blackstone.”45 To allow Pierson, that “saucy intruder, who had not shared in the honours

40 Livingston’s American National Biography entry identifies Pierson v. Post, “the famous fox hunting case,” as “[n]otable among his [Livingston’s] 149 state opinions [as] a display of judicial humor.” See Michael B. Dougan, Livingston, Henry Brockholst, in 13 AMERICAN NATIONAL BIOGRAPHY 764, 765 (1999). See also Peter Goodrich, The Importance of Being Earnest: Satire and the Criticism of Law, 15 SOC. SEMIOTICS 43 (2005) (on the discomfort jurists have with satire and how to remedy its exclusion from legal analysis), 45 (“satire is the opposite of the solemnity of law”). 41 Pierson, 3 Cai., at 180. 42 Id. 43 Id. at 181. 44 Id. at 180. 45 Id. at 179. 15

or labours of the chase … to come in at the death, and bear away in triumph the object of

pursuit” would be wrong, “[w]hatever Justinian may have thought of the matter.”46

Andrea McDowell has pointed out in her work on the case that Livingston missed

the point of a fox hunt, the raison d’être of which is the hunt, not the fox. The day-long

chase, with hounds and all the rest, is a singularly inefficient way to kill foxes and the

purpose of the activity has nothing to do with killing as many of the “wily quadruped[s]”

(another phrase of Livingston’s) as possible. At least in England, there was awareness

amongst the aristocratic class that hunters were engaged in an activity that required for its

continuation a healthy population of foxes, and they engaged in initiatives like providing

breeding boxes for foxes on estate grounds and compensating local farmers for the

inevitable harm done to their livestock by the foxes. Hunters, in other words, needed

foxes to engage in their much loved pursuit and would not, therefore, have seen them in

the way Livingston described.47

Other snippets of non-reality leap out of the case. For example, one wonders whether Post’s hunt was really grand enough that interference with it would yield a

damage award sufficient to justify the litigation. Livingston certainly seems to have been

operating with the idea of an English-style foxhunt with all its bells and whistles (“at the

sound of the horn, and at peep of day [the hunter] would mount his steed …”).48

However, that image was probably a feature of his imagination and not taking the case

altogether seriously. There is not much reason to think that Post’s hunt was more than a

46 Id. at 180. 47 See McDowell, supra note 3, at 738 (“foxhunters of the eighteenth century did not seek to eradicate foxes but actually went to great lengths to maintain the population by protecting their breeding areas and, when there was a scarcity in one location, by bringing in foxes from another), 748 (“people not only valued and monitored the foxes and fox litters on their property, but also captured and confined foxes and even raised fox pups to adulthood”), 750 (in a hunting county “almost the entire neighborhood was devoted to building up the fox population”). 48 Pierson v. Post, 3 Cai. R. 175, 180 (N.Y. Sup. Ct. 1805). 16

“pick up your gun and go” kind, in which case there was no reason to think that much in

the way of fanfare was involved. The facts of the case, while they mention “dogs and

hounds,” make no references to horses, horns, large numbers of people or anything else

that would cause one to think that a lot of expense was involved.49

A major problem here is that one does not know just how much or little to rely on the statement of facts in the declaration. That dilemma exists because Pierson was suing

out on a certiorari as “the now plaintiff,” claiming that even though Post won in the court

below, having “a legal interest in the creature, that was the cause of the suit below” was

actually “not sufficient in law to maintain an action.”50 This claim had the same effect as

if Pierson had originally brought a plea for a demurrer – a traditional though now largely

defunct strategy in which the defendant nominally accepts the allegations of fact made by

the plaintiff but argues that they do not as a matter of law support a cause of action

against him.51 This does not mean that the facts as alleged in the original plaintiff Post’s

declaration are in fact true, just that Pierson says that even if they are true they do not

support a cause of action. So, for instance, there is some uncertainty about whether

Pierson knew that Post was in pursuit of the fox when he killed it, despite the fact that the

declaration said he did know about the chase. If Pierson did not know that Post was

hunting the fox, then no wrong was done unless Post owned the fox by virtue of his

49 Post did seem to have had horses, since Berger notes that he left a bequest to his wife of a “riding chair”. Berger, supra note 4, at 1129. 50 Pierson, 3 Cai., at 175. 51 “A demurrer was a plea, usually by the defendant but occasionally by the plaintiff, which admitted that the facts alleged in the previous plea were true but denied they were sufficient in law to maintain the action.” DUELY AND CONSTANTLY KEPT: HISTORY OF THE SUPREME COURT OF JUDICATURE, 1691-1847, 35 (1991). 17

pursuit of it.52 Pierson is saying, in other words, that even if Pierson knew Post was in

pursuit, he could not have acquired ownership by mere pursuit.

The local historian whose telling of the tale casts doubt on Pierson’s state of

knowledge with respect to Post hunting the fox, a judge named H.P. Hedges, offered a

version of these events to the local community on the front page of The Sag Harbor

Express some ninety years after the fact.53 His story is one of willfulness and wealth, with the fathers on each side – David Pierson (of old Puritan farming stock) and Nathan

Post (made rich by West India trade) – urging their sons, who shared their willful spirits, to protect their claim to the fox. “The fathers heard the story of their sons, and each, with the ardor of his nature, espoused their cause.” References are made to the “iron will” of

Jesse Pierson and the “resolute” Lodowick Post. “If a contest should arise between these sons, and if the fathers should each advocate the cause of his son, it would be no ordinary conflict. Death or disability alone would end the battle. They were rich, resolute, willful.”

Claiming inside knowledge from having at some point “conversed with them,” the

sons Lodowick and Jesse, the story for Hedges – what he wanted to communicate to the

residents of Sag Harbor on a Thursday morning in October 1895 – was a tale of “[t]he

selfishness, the willfulness, the wrath of man [that] ofttimes seek gratification by

invoking the power of the law.” This was something that would have struck readers of

the newspaper as a quaint story about the stubborn foolishness of their ancestors.

52 Donahue, Animalia Ferae Naturae, supra note 35, at 49-50 (“Pierson is free to take the fox. It is res nullius until taken, and Pierson, we will concede for the sake of argument, has as much right to hunt it as Post. But Pierson may not take the fox if ‘knowing the fox was … hunted and pursued [by Post],’ he kills and carries it off ‘to prevent [Post’s] catching the same.’ This is iniuria and actionable as such”). 53 H.P. Hedges, Pierson vs. Post, THE SAG-HARBOR EXPRESS, Oct. 24, 1895, at 1. All subsequent references to the Hedges article are to the front page, where the entire piece appears. 18

The Sag Harbor Express was not the type of newspaper in which a great deal of

emphasis was placed on truth or accuracy. Firmly anchored in the lighter side of life,

many issues started off with a poem, followed by a column called “Gleanings” that

contained a list of “one-liner” jokes. Along with scientific updates (“Is there life on

Mars?”),54 advice tips (treat friendships like the fragile chinaware they are)55 and

curiosities (the first gynecologist and the origins of the word “doily”),56 are many heavy- handed morality tales. So, for instance, some stories sing the praises of entrepreneurial and industrious children – orphans who took to growing flowers to pay off their farm debts or a boy who planted a cherry tree by his father’s sick bed, used the money from cherry sales to support the family, and then built his father’s coffin from the trunk of the tree.57

“In social position the respective families [in Pierson v. Post] stood among the

first.” However, Hedges was keen to point out, privilege did not save them from letting

their willful pride get the better of them, at high cost. The newspaper account reported

that “[i]t was said the costs amounted to a thousand pounds on each side; at that day an

enormous sum and justifying the facetions [sic facetious?] epigram of one of my name

and kin, ‘Law is costive.’” Hedges, a judge, must have known that this account was

almost certainly an old wives tale, hence the disclaimer “it was said.”58 Another speech

54 Is Planet Mars Inhabited, THE SAG-HARBOR EXPRESS, Aug. 29, 1895, at 1. 55 Friendship is a Fragile thing, THE SAG-HARBOR EXPRESS, Oct. 4, 1894, at 1. 56 Dr. Skene’s Triumphs in Medicine, THE SAG-HARBOUR EXPRESS, Oct. 18, 1894, at 1; Origins of the Word ‘Doily’, THE SAG-HARBOR EXPRESS, Oct. 24, 1895, at 1. 57 Butts, M.F., How the Meadow Saved Itself, THE SAG-HARBOR EXPRESS, Oct. 24, 1895, at 1; Planted the Tree that Made His Coffin, THE SAG-HARBOR EXPRESS, Sept. 27, 1894, at 1. 58 It was probably correct to say that each party had to pay their own costs, whatever they were. At the time of the case, New York operated under a version of “the English rule,” where costs generally follow the merits of the action – the loser pays his own costs, plus the costs of the winner. See GEORGE CAINES, A SUMMARY OF THE PRACTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK 5 (Isaac Riley 1808) available at Early American Imprints, 2d ser., 1808, no. 14628, 2 vols. (Shaw-Shoemaker Bibliography, 19

he gave omitted this gesture, signaling that care should be taken with respect to this

report. “To the public the decision was worth its cost. To the parties, who each

expended over a thousand pounds, the fox cost very dear.”59 What he cared most about

was the moral of the story: you must avoid litigation at all costs. One almost expects him

to have said that it would lead to blindness as well as penury. Respectability and wealth would be no defense. The official local history relying on Hedges at many points absorbed his spin, introducing Pierson v. Post as an illustration of the point that “the love of law suits” was “in the nature of luxuries.”60

The silver lining in what was otherwise a dark cloud for Hedges was that the

controversy ended up being “a benefit to the state and to the world” in the sense that “[i]t

established a principle of law as a precedent respected from that day to this in the

tribunals of this Nation.” One imagines readers chuckling slightly as they are told that

“[q]uestions arising out of the conflicting claims concerning the whale fishery, game

laws, fish law, whale law, all bow to the decision in Pierson vs. Post.” Written so long

after the incident with a “moral tale” about why local residents should quell any inner

urges they might have towards litigiousness, the account sheds little light on why the

fathers and their sons would take up the cause in this way.

1801-1819) (“[i]t is a general rule, that the party prevailing is entitled to costs”). However, New York also had an 1801 statute that restricted the loser pays system to cases where damages were recovered. See The Ship Nancy v. Fitzpatrick, 3 Cai. R. 38 (N.Y. Sup. Ct. 1805). Since no damages were recovered in this case, it was not one where any costs would be awarded to the winning party, Pierson. Each party would have been left to pay their own costs. 59 This account is reproduced in JAMES TRUSLOW ADAMS, MEMORIALS OF OLD BRIDGEHAMPTON 166 (Ira J. Friedman, 1962, original copyright 1916) (cited to “Story of a Celebration”). 60 Id. at 165. 20

Suspicious here is the pro-Pierson leaning in the account.61 While Pierson comes

out looking just as stubborn and foolish as Post in terms of persisting in the legal dispute,

Post is judged harshly on at least two points in Hedges’s eyes. First, with late-nineteenth

century Victorian frugality clearly forming the standard of judgment, Hedges refers to the

luxury items in Post’s large house – “a capacious dwelling [with] decorate[d] walls [and]

wainscot [in] its rooms.” Secondly, Hedges included the fact that Post owned slaves –

“and in the kitchen of the dwelling, he fixed, for their correction, a whipping-post, which

may be seen there to this day, a solitary and unused monument of the barbarity of a

servitude and an age forever banished.” However, Post’s descendants are described as

just as respectable members of the community as members of Pierson’s family. Nathan

and Lodowick Post, for instance, appear on a list of those who settled the Bridgehampton

Presbyterian Church in 1787, as do many Piersons (and Hedges).62

Hedges’s theory about the fathers of the litigants is particularly suspect given that

Lodowick’s father, Nathan Post, died in 1803.63 If that information is correct, Nathan

Post could hardly have been urging his son to litigation when his death preceded the incident, supposed to have happened sometime in 1804. He certainly could not have been urging Lodowick to resist Pierson’s appeal in 1805. Indeed, this supposed enmity between the families is itself suspect given their prominence in the community, whatever the differences in the source of their wealth. It is worth noting that in 1817 Lodowick

61 Berger noted that Hedges was a friend of Jesse Pierson’s son – grandson of David Pierson Sr. – which might help explain why Hedges’s account was skewed. See Berger, supra note 4, at 1120 n.176. 62 See ADAMS, supra note 59, at 192-95. 63 Id. at 222 (“Captain Post was born in 1748 and died in 1803”). 21 sold the house with the wainscoted rooms – that symbol of decadence – to one of the

Piersons.64

It is therefore fair to say that the case is littered with problems related to found fact. The way scholars have usually sought to overcome such problems is to return to the original court material or other sources to find answers we would all love to have, to find out “the real story.”65 For instance, what happened before the Queen’s County Justice of the Peace?66 Was Post awarded the value of a fox pelt there? Did Pierson claim at any point that he did not know Post was in pursuit of that fox? The lack of such evidence

(since the original court records have not survived),67 combined with the suspicion that the facts in the declaration are not true (given the form of the action was of the “even if true” kind), “local lore” like Hedges’s that risks being seriously misleading, combined with the recalcitrance of Livingston’s opinion (which parts, if any, are serious?) all mean that the case-in-context approach in this instance is a different (and perhaps more than usually frustrating or speculative) kind of exercise. The argument presented here is that

64 See id. at 222. (“Another old house is the E. G. Sayre house, east of the Hampton House on the main country road. This house was built, according to Mr. C. H. Hildreth, for Capt. Nathan Post and descended to his son, Capt. Lodowick Post, who sold it in 1817 to John Pierson”). 65 See, e.g., Judith L. Maute, Peevyhouse v. Garland Coal & Mining Co. Revisited: The Ballad of Willie and Lucille,” 89 NW. U. L. REV. 1341 (1995). Earlier influential installments in the field include J.T. NOONAN, PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE MASKS (1975); RICHARD DANZIG, THE CAPABILITY PROBLEM IN CONTRACT LAW: FURTHER READINGS ON WELL KNOWN CASES (1978, 2d ed. 2004); SIMPSON, supra note 36. For an overview and explanation of the literature, see Debora L. Threedy, Legal Archaeology: Excavating Cases, Reconstructing Context, 80 TUL. L. REV. 1197 (2006). 66 A Justice of the Peace had jurisdiction in a case worth less than $50 and only if a case was worth more than $25 would a transcript be sent to the county clerk. However, approval and signing of the writ of certiorari by the Supreme Court would have meant that the Justice of the Peace would be ordered “to certify and return to the Supreme Court for review a copy of [the] proceedings.” DUELY AND CONSTANTLY KEPT, supra note 51, at 53. For a diagram of the court system in New York from 1777 to 1847 see id. at 152-153. See also the reproduction of the oil painting “Justice’s Court in the Backwoods” (1850), id. at 53, for a sense of how the original hearing by the Justice of the Peace would have looked. 67 See McDowell, supra note 3, at 740 n.14 on the results of searches for the court record. 22 the case is best seen in terms of someone who is hardly ever mentioned in connection with the case, James Kent, and, specifically, as a product of his pushy pedagogy.

III: A New “Pedagogical” Theory of the Case

No one can deny that the decision, as it appears on the pages of the law reports and as it has been reproduced in countless law school casebooks, with its long Latin passages and references to multiple foreign civilian authors, has a flamboyant air not often seen.68 The mere use of civil law is not something that would raise much of an eyebrow in pre-1850 New York. This was by no means an unusual practice.69 Federalist judges like Kent and Joseph Story were regularly referring to foreign law.70 Given the existence of the important ports of Boston (in Story’s Massachusetts) and New York City

(in Kent’s New York), it is easy to see why both scholar/judges would gravitate towards areas of early commercial law and international law, particularly maritime law. The books in Kent’s library show how important these areas of law were to him.71 Kent had

68 For a reproduction of the case with English translations of the Latin phrases, see CHARLES DONAHUE, JR., THOMAS E. KAUPER & PETER W. MARTIN, CASES AND MATERIALS ON PROPERTY: AN INTRODUCTION TO THE CONCEPT AND THE INSTITUTION 2-7 (3d ed. 1993). 69 See Peter Stein, The Attraction of the Civil Law in Post-Revolutionary America, 52 VA. L. REV. 403, 432 (1966); Daniel R. Coquillette, Justinian in Braintree: John Adams, Civilian Learning, and Legal Elitism, 1758-1775, in LAW IN COLONIAL MASSACHUSETTS, 1630-1800 359 (1984); R.H. Helmholz, Use of the Civil Law in Post-Revolutionary American Jurisprudence, 66 TUL. L. REV. 1649 (1992). 70 Langbein, supra note 6, at 569 (“Both in his judicial opinions and in the Commentaries, Kent resorted incessantly to foreign law, especially to the French and Dutch juristic writers, and to the Code Napoleon”). 71 James Kent, 8 DIARIES AND NOTEBOOKS, CATALOGUE OF HIS LIBRARY (1842-43; revised 1844), available on microfilm from Columbia University Rare Book and Manuscript Library, Butler Library (a handwritten list of books organized by shelf and bookcase location). See, e.g., id. at 3 (“Catalogue of Mercantile”), 59 (“Commercial Code of France (English)”), 54 (“Pothier on Contracts”; “Pothier on Contract of Sale”), 64 (“Story on Bills of Exchange”), 73 (“Owen on Bankruptcy”), 74 & 128 (“Chitty on Bills”; “Ovid on Usury”), 88 (“Malynes Lex Mercatoria”), 119 (“Story on Contracts”; “Chipman on Contracts”), 54 (“Gardner on International Law”), 59 (“Wheaton on International Law”), 110 (“Wheaton’s History of the Law of Nations”), 112 (“Ward’s History of the Law of Nations, 2 vols”; “Vattel”), 89 (“Chitty’s Law of Nations”), 59 & 116 (“Azuni’s Maritime Law”), 110 (“Admiralty Cases in Hopkins”), 54 (“Hubner on Neutral Rights, 2 vols”). See Christopher P. Rogers, Continental Literature and the Development of the Common Law by the King’s Bench: c. 1750-1800, in THE COURTS AND THE DEVELOPMENT OF COMMERCIAL LAW 161 (1982) (for a description of Lord Mansfield’s use of continental sources in maritime law, public and private international law, and contracts). 23

copies of the Code Napoléon in French and English in his library, as well as commentaries on it.72 That approach to foreign law was motivated in part by the attempt

to find sources other than the usual English ones for principles of the common law that

would continue to govern relations after the Revolution but would require a different

pedigree given the war that had just been fought.73

The great focus in English property law on real property was perceived as a

problem by Kent and his contemporaries. He wrote in his Commentaries that “the law of

chattels, once so unimportant, has grown into a system, which, by its magnitude,

overshadows, in a very considerable degree, the learning of real estates.”74 Compared to

England, an island on which there was not much land to function as a source of wealth

and class definition, real estate in the United States was less important, where land was

cheap, society was less class-structured – at least so the song was sung – and it was more

important for there to be more mobile forms of property. Kent reflected the American re-

prioritization by placing personal property before real property in his Commentaries and

including in it extensive treatment of commercial law.75

Just how unusual was Pierson v. Post? There were decisions in this court at this

time, usually opinions written by Kent or Livingston, in which a little Latin was used and

where European authorities were considered, usually in the context of marine insurance disputes. None of these cases, however – at least in the three volumes of Caines Reports

72 See CATALOGUE OF HIS LIBRARY, supra note 71, at 110 (“Code Napoleon, 2 vols (French)”), 61 (“Code Napoleon, 2 vols (English)”), 96 (“Discussions on the Civil Code, 5 vols (French)”). 73 Langbein, supra note 6, at 568. 74 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 278 (1827). 75 See id. vol. 2, vol. 3 (1828), vol. 4 (1830). See also ALEXANDER, supra note 6, at 141-42 (“Kent treated personal property nearly as importantly as real property, and in fact greatly expanded the domain of personal property law … [to include] virtually the whole of what we would call commercial law, including negotiable instruments, sales, and insurance. Kent particularly emphasized maritime law and the maritime aspects of commercial law … Kent moved personal property ahead of real property and great[ly] expanded the scope of personal property law”). 24

in which Pierson v. Post was reported – had anything like its intensive use of European sources, made most palpable by the odd absence of a commercial context that usually makes recourse to the law of other systems a sensible choice at this time. The “over-the- top” flavor of Pierson v. Post – the length and frequency of the Latin passages, the varied list of English, Roman, and civilian authors, along with so earnest a treatment of so insignificant a matter, property in a virtually valueless fox – leads one to ask whether there was something else going on in the case.

Given Kent’s preference for an erudite approach to the law and his ongoing

attempts to mold the court in his image, one wonders if it is possible that he used the case

to set up a scholarly disputation for the lawyers and judges, treating it as an opportunity

to have a hearing along the learned lines he so loved. It is as if Kent issued the following

order or challenge: “Let us each and every one argue what the principles of world law would dictate and the judgment will be rendered on this basis.” The approach to the sources would be ecumenical – English, Ancient Roman, or modern civilian. The idea is that the lawyers were directed to frame their arguments using any of those sources and the judges would provide a discussion confined to them, much like a present day moot court debate. Livingston’s dissent then would be like the perfunctory provision of the competing view in the way often thought to be desirable in such an exercise.

Support for the pushy pedagogy theory comes from at least four sources. First

(A), there are the annotations that Kent made on his copy of the case and the connection

between them and Kent’s use of the case in his later Commentaries. We will see that

these establish that Kent took a scholarly interest in the case beyond the casual or

ordinary. Secondly (B), there is the circumstantial evidence provided by the identity of 25

the lawyers and judges who were involved in the case. The lawyers had a great deal of

potential in terms of their ability to participate in such a scholarly exercise and at least

two of the other judges sitting on the case, Tompkins and Smith Thompson, were former

students of Kent and were ripe for this kind of bullying, or edification, depending on your

perspective. That Tompkins might have been the object of Kent’s pushy pedagogy in the

case is suggested by his usual silence, the fact that when he wrote at all, it was in a

laconic style, quite unlike Pierson v. Post. Thirdly (C), the focus will be on the

plausibility of the pedagogical theory based on general reflection on the proprietary way

in which Kent saw the court, the reports, his “students,” and ultimately his legacy.

Fourth, and finally (D), I turn to the question of how to understand Livingston’s dissent

in light of this theory of the case.

A. The Annotations

Frederick Hicks wrote in his biographical essay on Kent that he had “[a] habit of

reading pen in hand.”76 John Langbein’s study of Kent in the Columbia Law Review

refers frequently to annotations Kent made on various works.77 Knowing about Kent’s

tendency to write marginalia, I went in search of annotations on his copy of the case. The

New York State Library in Albany has Kent’s copy of the second edition from 1814, and

76 “Nearly every volume in his [Kent’s] library shows evidence of use, and of his habit of reading pen in hand. In many volumes, letters are inserted relating to the author, or the donor; and on fly-leaves he jotted down not only criticisms and observations on the books, on the authors of them, and on persons and events mentioned in them, but items concerning the intimate affairs of his own professional and family life.” Frederick Charles Hicks, Kent, James, in 10 DICTIONARY OF AMERICAN BIOGRAPHY 344, 347 (American Counsel of Learned Societies 1933). See also MEMOIRES AND LETTERS, supra note 6, at 237 (“In almost every work of his library the blank leaves at the beginning and end of each volume are filled with notes, extracts, and references to other works. He literally read with a pen in his hand, and every interesting or disputed point was made the occasion for very full references and citation”). 77 Langbein, supra note 6. 26 he made extensive notes on the first page of Tompkins’s decision.78 I have reproduced this copy of the case in Appendix I. In what follows, I treat each of the four most visible annotations on the annotated page of Tompkins’s decision, starting with the third from the top.

This annotation – “+Lib. 4. ch. 6. #2.9. note 2.” – is written next to a passage of the judgment that reads “Barbeyrac, in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but,[+] on the contrary, affirms, that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals.” Charles

Donahue identified a 1749 English translation of Samuel Pufendorf’s The Law of Nature and Nations, saying that it was almost certainly the edition used by court and counsel in

78 3 GEORGE CAINES, NEW-YORK TERM REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THAT STATE, 177 (Van Winkle & Wiley Printers, 2d ed. 1814). Thank you to Helen Weltin, Senior Librarian, Manuscripts and Special Collections, New York State Library, Cultural Education Center, Albany, N.Y. for her assistance in obtaining the annotated copy of the case and confirming that the handwriting was Kent’s. Ms. Weltin reported to me that this copy was inscribed with Kent’s initials, “J Kent,” making her confident that the book was owned by Kent and that he wrote the annotations. Email to the author (April 24, 2006). It seemed unlikely to me that no one else had noticed these annotations, which are quite dramatic. The only other reference I have been able to find is a footnote in a 1979 paper prepared by a scholar of the New York Supreme Court and its personalities, historian Donald Roper, where he referred to “Livingston’s brilliantly witty dissent in Pierson v. Post … which still continues to entertain first-year students in Property Law, presents a model of common sense in contrast to the majority opinion, a refreshing contrast made even wider by Kent’s erudite marginal notes in his copy.” See Donald M. Roper, The New York Supreme Court and Economic Development, 1798-1823, in LAW AND ECONOMIC DEVELOPMENT: PAPERS FROM THE FALL 1979 REGIONAL ECONOMIC HISTORY RESEARCH CENTER 58, 63, 82 n.31 (1979). I have, unfortunately, been unable to locate Kent’s copy of the first edition of the case, which would better reflect what he was thinking closer to the time the case was decided. The New York State Library has the first and second volumes of the first edition of Caines Reports but not the third volume. Email from Helen Weltin to the author (April 24, 2006). It also does not seem to be among the books in the Kent collection at Columbia. The Columbia library does have a copy of the third volume of the first edition, 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). Although the signature has been cut out of the title page, a remaining flourish indicates that it did not belong to Kent. Email from Whitney Bagnell, Librarian for Special Collections in Law, Columbia University, to the author (June 8, 2006). Kent might have destroyed or mislaid his copy. “[I]t’s inconceivable that he didn’t own it.” Email from Donald Roper to the author (March 13, 2007). 27

Pierson v. Post.79 Pufendorf said that “the first occupant” is “him who, before others,

took bodily Possession.”80 Kent’s reference is certainly to Barbeyrac’s note.81

Barbeyrac says there “that taking Possession actually (Occupatio) is not always

absolutely necessary to acquire a thing that belongs to no body.” A person can also make

their intention to take known so long as the thing is “within Reach of taking what he

declares his Design to feixe on.”82 This is the part of the text that would have been most

helpful to Post, a point not lost on his lawyer. After referring to this note of Barbeyrac’s,

he argued:

manucaption is only one of many means to declare the intention of exclusively appropriating that, which was before in a state of nature. Any continued act which does this, is equivalent to occupancy. Pursuit, therefore, by a person who starts a wild animal, gives an exclusive right whilst it is followed. It is all the possession the nature of the subject admits; it declares the intention of acquiring dominion, and is as much to be respected as manucaption itself. The contrary idea, requiring actual taking, proceeds, as Mr. Barbeyrac observes, in Puffendorf … on a “false notion of possession.”83

Pufendorf therefore left the matter undecided. For instance, he defined “the most early

Occupant,” as “he who lays hold on such a thing before others, or gets the start of them in

putting in his Claim to it.”84 It left ambiguous who, as between, Pierson (who laid hold

of the fox) or Post (who initiated the hunt), would be the first occupant and therefore the

rightful owner. In other words, this bit of the text would have been the perfect place for

the scholarly disputation to begin and where I suspect it did begin.

79 Animalia Ferae Naturae, supra note 35, at 57 n.69. The edition is S. PUFENDORF, THE LAW OF NATURE AND NATIONS (with Barbeyrac’s notes) (B. Kennet trans., London, 1749). See CATALOGUE OF HIS LIBRARY, supra note 71, at 94 (“Pufendorf”). 80 PUFENDORF, supra note 79, at 4.6.2, 386. 81 Kent’s “#2.9” refers to the text that is just about at the ninth line of section two. 82 Id. at 4.6.2 n.2, 386. 83 Pierson v Post, 3 Cai. R. 175, 176 (N.Y. Sup. Ct. 1805). 84 PUFENDORF, supra note 79, at 4.6.2, 386 [emphasis added]. 28

The first annotation in the left hand margin (“Dig. 41.1.5.#2.[S.O.] [?]”) is a reference to Justinian’s Digest.85 This section of the Digest is titled “Concerning the

Acquisition of Ownership,” the first subsection of which focuses on “wild beasts” that are

“captured on land or sea or in the air” and that thereby “become the property of their captors.”86 There is a paraphrase from Gaius about how “the first taker” cannot let the

animal out of their control: “Now any such animal a man captures is considered his so

long as it is kept under his control; but when it has escaped from his control and

recovered its natural liberty it ceases to be his and becomes once more the property of the

first taker.”87 Why is this? Well, as “5 #2,” Kent’s “pin point citation” to the Digest, puts it, “many things may occur to prevent his capturing it.”88 That is why the beast must

be actually taken, as Kent has underlined in the body of the text.89 Post zero, Pierson

one: to Pierson go the spoils, merely conceptual though they may be.

Pierson’s lawyer hit the nail on the head in that submission. However, he used

Justinian’s Institutes rather than the Digest, both on the general point that wild beasts

when seized become the property of their captor by the law of nations – “for natural

reason admits the title of the first occupant to that which previously had no owner” – and

on the specific point that this stays as the captor’s property “so long as it is completely

under your control; but so soon as it has escaped from your control, and recovered its

natural liberty, it ceases to be yours, and belongs to the first person who subsequently

85 I am unable to make sense of Kent’s last two letters or digits here. They might equally be 5.0. I am using the following translation of Justinian’s Digest: CORPUS JURIS CIVILIS, Dig. 41, 1 & 2 (F. de Zulueta trans., 1950). 86 See id. at D. 41.1.1, 45. 87 Id. at D. 41.1.3, 46. 88 Id. at D. 41.1.5(2), 46. 89 I leave aside the minor corrections Kent has made in this paragraph to Fleta and Bracton. 29

catches it.”90 Why? Because its “natural liberty may be regained.” Even if wounded,

“many things can happen so that you don’t seize it and it is not yours unless you seize

it.”91 Alan Watson has called the Institutes a “textbook for first-year students,” and noted

that the less elementary Digest “was often simply not ready to hand or was thought

overly difficult.”92 Tompkins followed both points in his arguments for Post using the

more elementary text, the Institutes.93

The next left-hand margin annotation refers to someone who is nowhere mentioned by any of the lawyers and judges in the reported decision, namely the great

French doctrinal theorist Robert-Joseph Pothier (1699-1772), who Kent was fond of citing.94 Scholars have long noted that the 1804 Napoleonic Civil Code of France could only have been produced as quickly as it was – the draft was finished in four months – because of the work of great eighteenth-century legal scholars like Pothier, who were

informally codifying the general law in their scholarly treatise-writing prior to the official

codification process. Much of this work consisted of drawing on Roman law (i.e.

Justinian) to smooth out inconsistencies between different bodies of French customary

90 See THE INSTITUTES OF JUSTINIAN, 2.1.12, 37 (J.B. Moyle trans., 1913). Quoted in Latin after the reference to “Just. Lib. 2. tit. 1. s.12.” See Pierson v Post, 3 Cai. R. 175, 175 (N.Y. Sup. Ct. 1805). 91 Quoted in Latin in Pierson, 3 Cai, at 176. The English translation comes from DONAHUE, CASES AND MATERIALS ON PROPERTY, supra note 68, at 3. Moyle puts it as even if wounded it can become “again the property of any one who catches it: … and we confirm this … view, for it may happen in many ways that you will not capture it.” THE INSTITUTES OF JUSTINIAN, supra note 90, at 2.1.13, 37. 92 ALAN WATSON, LAW OUT OF CONTEXT 144, 146 (2000). 93 For Kent’s copy of the Institutes, see CATALOGUE OF HIS LIBRARY, supra note 71, at 35 (“[Arnoul] Ferrier’s Institutes of Justinian, vols 7”). The Digest is also sometimes called the Pandects. See 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 501-503 (1826). A copy prepared by the French theorist Robert Joseph Pothier is included on Kent’s list of books. See CATALOGUE OF HIS LIBRARY, supra note 71, at 96 (“Pothier’s Pandects, 5 vols (French)”). 94 See Alan Watson, Chancellor Kent’s Use of Foreign Law, in THE RECEPTION OF CONTINENTAL IDEAS IN THE COMMON LAW WORLD, 1820-1920 45, 45-46 (Mathias Reimann ed., 1993) (“Pothier is by far the one most often cited”). 30 law.95 Those points supposedly based on Roman law that made their way into the Code were “almost always ‘modern ideas’ developed in the seventeenth and eighteenth centuries, dressed up in a toga.”96 At any rate, this work was extremely important to that jurisdiction’s ability to codify as quickly as it did, and Pothier is among a handful of

French doctrinal writers who made that reorganization of law possible.

Pothier’s collected works were highly influential. Kent had a twenty-six volume set in French that would appear to be an edition from 1821-24.97 Those for which there were English translations – the most famous of which was the treatise on the law of obligations – had particular influence in the United States. The collected works also included a treatise on the law of property, which was the last of Pothier’s published material, finished in 1771-72.98 It seems not to have been translated into English.99 This

95 The three who are singled out here are Jean Domat, Pothier, and Françoise Bourjon. It is important to note, however, that “[t]he novel method of presentation of these works helped to clarify the existing law but did not really modify its actual substance, and their authors failed to suggest any practical method of unifying the private law of France. The possibility of codification was never mentioned.” See JEAN-LOUIS HALPERIN, THE FRENCH CIVIL CODE, 4 (Tony Weir trans., 2006). 96 HALPERIN, id. at 69. 97 See CATALOGUE OF HIS LIBRARY, supra note 71, at 93 (“Works of Pothier, 26 vols. (French)”). Of the editions of the complete works listed in DAVID HOFFMAN, A COURSE OF LEGAL STUDY: RESPECTFULLY ADDRESSED TO THE STUDENTS OF LAW IN THE UNITED STATES 496 (1846) – and therefore available in the United States – there is only one with twenty-six volumes: “M. Berville. Paris, 1820, 26 vols.” Apparently, Hoffman got the date wrong. See ROBERT-JOSEPH POTHIER, OEUVRES COMPLÈTES DE POTHIER, Saint-Albin Berville, ed. (Paris, 1821-24), Bibliothèque nationale de France catalogue #FRBNF30098772. The Berville edition does not appear to be readily available. The text might well be the same as another more common twenty-six volume 1821-24 edition of the complete works by “M. Siffrein,” which I rely on here. I have not been able to track down Kent’s set. 98 See J.E. de Montmorency, Robert-Joseph Pothier and French Law, 13 J. SOC’Y COMP. LEGIS. 265, 282 (1913). 99 See Jenni Parrish, Law Books and Legal Publishing in America, 1760-1840, 72 LAW LIBR. J. 355, 424 (1979) (a list of English translations of Pothier’s work includes his treatise on maritime contracts, the contract of sale, and multiple editions of the treatise on obligations but nothing on property). See also J.G. MARVIN, LEGAL BIBLIOGRAPHY OR A THESARUS OF AMERICAN, ENGLISH, IRISH, AND SCOTCH LAW BOOKS 578-79 (1847) (listing translations of the treatise on obligations and contract of sale). Jefferson’s list of books contains only an English translation of the treatise on obligations. See 2 CATALOGUE OF THE LIBRARY OF THOMAS JEFFERSON, PHILOSOPHY 312 (1953). One list using Morris Cohen’s Bibliography of Early American Law and Marvin includes no English translations of Pothier’s treatise on property or the complete works. See M.H. Hoeflich, Translation and Reception of Foreign Law in the Antebellum United States, 50 AM. J. COMP. L. 753, 760-61 (2002). The English 31 fact would have been of little significance to Kent, given that he read French, had many

French books in his library, and must be called an enthusiast of France of a kind despite his Federalist politics.100 The lack of an English-language edition, however, would have affected the extent to which others in the United States would have used it.101

Kent’s annotation – “See Pothier Vol. 17. [?]. 28-31” – is pretty clearly to a volume seventeen of some edition of the collected works. An 1821-24 edition that Kent might have owned does contain a volume seventeen on the customary laws relating to possession and numbered passages in the vicinity of these more specific numbers dealing with issues that that would have been relevant to Pierson v. Post.102 For instance, there is treatment of the various ways of conserving and losing possession.103 When stating what is needed for possession, Pothier explains that apprehension of a corporeal thing requires seizing it. Indeed, this requirement follows from the definition of possession and the etymology of the term.104 However, he goes on to note that it is not absolutely necessary to touch the thing to acquire possession.105 There is one point relating to animals that are

translations from the French that follow are my own. I place French text in «» when I aim for an exact translation and omit these when support is found in a longer passage of the French. 100 The books in Kent’s library attest to an intense fascination with France. See CATALOGUE OF HIS LIBRARY, supra note 71, at 6 (“Hist[ory] of France, 3 vols”), 9 (“Paris and the Parisians by M. Trollope”), 11 (“French Historical Dict[ionary], 9 vols”), 13 (“Carlyle on the French Revolution, 2 vols”; “Residence in France 1792-1795”), 19 (“Bonaparte’s Voyage to Helena”), 21 (“Portrait of Napoleon’s Character”), 20 (books on the Battle of Waterloo; “Paris – June 1815”; “Few Weeks in Paris”; “Visit to Paris”; “Paris Revisited”), 23 (“French map of Paris”); 49 (a book on Bonaparte’s family), 50 (“Walsh’s Sketches of French Characters”), 81 (French grammar book; “M.S. 3 vols on French Revolution”), 86 (“French Constitution of 1798”), 100 (“Rousseau’s Confessions”). 101 See Hoeflich, supra note 99, at 757 (“When one asks how many lawyers during this period would have been fluent enough in French to read the works of Pothier or Barbeyrac in French [one is] left with the impression that the number was not great outside of places like Louisiana”). 102 See 17 OEUVRES DE POTHIER, COUTUME D’ORLEANS 385-407 (M. Siffrein ed., 1822) available at Bibliothèque Nationale de France http://gallica.bnf.fr/ Document # FRBNF37228395. 103 See id. at 397-402, paras. 27-39. 104 Id. at 392, para. 17 (il ne suffit pas, pour que j’acquière la possession d’une chose, que j’aie la volonté de la posséder; il faut en outre que je l’appréhende, que je m’en saisisse … C’est ce qui résulte de la définition de la possession, et de l’étymologie de ce terme). 105 Id. at 393, para. 19 («Il n’est pas même absolument nécessaire de toucher la chose, pour en acquérir la possession»). 32

habituated to come and go.106 But there is nothing on wild animals and nothing that

would directly support the comment written in the margin: “[t]he animal must be brought

within the Power of the Pursuer.”

However, the treatise on property is another story.107 The first part of the work is

called what is the right of property and what are the ways of acquiring and losing it.108

Immediately after considering the substance and contents of the right of property, the

occupation of things that belong to no one is next considered.109 What is said? Of things

that belong to no one, they may be acquired by “the first occupant.”110 The discussion then moves on to things that are res communes or res nullius like air and water, as well as

animals. A distinction is made between domesticated animals, for which the loss of

possession would not matter, and wild animals (fera naturae), which stay in the common

property. Pothier calls this state one of “negative community.”111 Such things “stay in

this state and can only be acquired when seized.”112 Speaking specifically of the hunt,

Pothier says that “it is sufficient that the animal be in the person’s power in a manner in

which it cannot escape.”113 It is this that comes the closest to the annotation “[t]he

animal must be brought within the Power of the Pursuer.”

106 Over animals that come and go possession is not lost since they are in the habit of returning but if they have not returned for some time possession is lost. See id. at 402, para. 39 (des animaux qui ont coutume de s’écarter et de revenir, nous ne laissons pas d’en conserver la possession, quoique nous ignorions où ils sont, tant qu’ils n’ont pas perdu l’habitude de revenir … mais, si les animaux ont perdu cette habitude, et qu’ils aient manqué de revenir pendant un temps assez considérable pour qu’on ne doive pas en espérer le retour, nous en perdons la possession). 107 10 OEUVRES DE POTHIER (M. Siffrein ed., 1821), TRAITÉS DU DROIT DE DOMAINE DE PROPRIÉTÉ, DE LA POSSESSION, DE LA PRESCRIPTION QUI RESULTE DE LA POSSESSION available at Bibliothèque Nationale de France http://gallica.bnf.fr/ Document # FRBNF37228343. 108 See id. at 2 («ce que c’est que le droit de domaine de propriété; des manières dont il s’acquiert, et dont il se perd»). 109 Id. at 13 («de l’occupation des choses qui n’appartiennent à personne»). 110 Id. («le premier occupant»). 111 Id. at 14 («la communauté negative»). 112 Id. at 15 («demeurrent en cet état, et ne peut l’acquérir qu’en s’en emparant»). 113 Id. at 16 («il suffit que … l’animal ait été en son pouvoir, de manière à ne pouvoir s’échapper»). 33

It is important, however, to notice that Kent has written this reference to Pothier next to the text of the decision that reads “[i]t therefore only remains to inquire whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision.”114 Why is that? Well, it turns out Pothier was one of those authorities who would have “induce[d] a different decision.” Pothier summarized

Pufendorf’s discussion of wounding an animal when in pursuit of it and the consequences of that wounding being mortal or slight. If it was slight, the animal would go to the one who seized it (Pierson) rather than the original pursuer (Post). A more serious wounding, however, would be able to block the claim of an interloper like Pierson.115 Pothier then noted that Barbeyrac was of a completely opposed sentiment.116 Barbeyrac thought that pursuit was sufficient even if there was no wounding, as long as the first person continued to be in pursuit, and it was not permitted for someone else to seize that animal during that time.117 Why was this? Because, according to Pothier, this more civilized sentiment was what was followed in practice.118

114 Pierson v. Post, 3 Cai. R. 175, 177 (N.Y. Sup. Ct., 1805). 115 Pothier, supra note 107, at 18 (Il [Puffendorf]) dit que si la blessure étoit considérable, et qu’il fût vraisemblable que le chasseur eût atteint l’animal, il n’est pas permis à un autre de s’en emparer pendant que le chasseur qui l’a blessé le pursuit, mais que so la blessure est légère, l’animal demeure au premier occupant). 116 Id. (Barbeyrac est d’un sentiment tout oppose). 117 Id. (il [Barbeyrac] pense que qu’il suffit que je sois à la poursuite d’un animal, quand même je ne l’aurois pas encore blessé, pour que je sois censé, tant que je suis à la poursuite, être le premier occupant, à l’effet qu’il ne soit pas permis à un autre de s’en emparer pendant ce temps). 118 Id. (Ce sentiment, plus civil, est suivi dans l’usage). This discussion matches so perfectly what Kent was concerned with here that it seems likely this was the volume he was referring to or perhaps meant to refer to in the annotation. See Watson, Chancellor Kent’s Use of Foreign Law, supra note 92 (on Kent’s tendency to provide the wrong citations in his work, taking them second-hand from other sources – works he did not consult, at least not on that occasion, and concluding that many of the citations are “mere window dressing”). It is also possible that Kent was using a different 1821-24 edition of Pothier’s complete works in which the property treatise was in Volume 17. Different 1821-24 Siffrein editions seem to have different volume numbers for different works. The Bibliothèque nationale de France Siffrein I use here has property in Volume 10. The Yale Law School’s twenty-six volume 1821-24 Siffrein has its property in Volume 15. 34

This was a reference to the sentiment of the practical gentleman that Livingston would have preferred, and Pothier was in agreement with it. He grounded it in an article in the old law of the Saliens.119 If Post’s lawyer had know about this, it might well have

resulted in Post’s triumph over Pierson, or, if you prefer, Pothier’s over Justinian. If

Pothier been among the sources canvassed by Post’s lawyer or by the judges, Pierson’s

lawyer could not have said as he did (rather contemptuously) of Post’s position that “[t]he

only authority relied on is that of an annotator,” namely Barbeyrac.120 Post’s lawyer

could have pointed out that a scholar as eminent as Pothier – who was himself helping to

shape how Justinian was being received by the modern world – agreed with his position

on the issue, that although escape was important, pursuit alone should be sufficient given:

(i) the nature of possession (how, like certain animals, possession can come and go

without loss of ownership) and what this means in relationship to animals, wild or tame;

and (ii) as the more civilized sentiment followed in practice – according to the great

French theorist Robert-Joseph Pothier.

Kent’s handwritten reference to Pothier – “[t]he animal must be brought within

the Power of the Pursuer” – does not deal with the crucial question of what amount of

certainty is required vis-à-vis the power of the pursuer. Must he seize such that escape is

no longer possible, as Justinian stated? Well, as Kent wrote in the most dramatic of the

annotations at the bottom of the page, he thought that:

Almost all the modern civilians agree that the Beast must have been brought within the reach or power of the Pursuer to vest property. actual taking may not

119 Pothier, supra note 107, at 18 (Il est conforme à un article des anciennes lois des Saliens). 120 Pierson v. Post, 3 Cai. R. 175, 176 (N.Y. Sup. Ct., 1805). Barebyrac was, however, held in high esteem, some preferring his notes to Pufendorf’s text. See infra note 68. See Rogers, Continental Literature and the Development of the Common Law, supra note 71, at 169 (“[t]he most frequently used edition of Pufendorf was that by Barbeyrac, whose own commentary on the text was itself cited with approval in a number of cases”). 35

in all cases be requisite, but all agree that mere pursuit without bringing the animal within the power of the party, is not sufficient.

In other words, while “the actual taking,” seizing the fox as the interloper Pierson did,

might not have been required to make him the first occupant in the legal sense, Post’s

pursuit, “mere pursuit” without bringing the fox within his reach or power, might not

have been enough to have made him the owner. However, this formulation, like

Pufendorf’s, still left it undecided who as between the two should be considered the first

occupant and rightful owner.

When it came time for Kent to formulate the point about possession and

ownership in the Commentaries, it was no longer undecided. Pierson v. Post had settled it. Kent wrote there that “[i]t was held by the Supreme Court of this state, New York, in

Pierson v. Post, that pursuit alone gave no property in animals fera naturae.”121 He then went on to say, mirroring the annotation (with changes marked by underlining):

Almost all the jurists on general jurisprudence [instead of all the modern civilians] agree, that the animal [changed from the Beast – with a capital “B”] must have been brought within the power [changed from reach or power] of the pursuer [no longer capitalized], before the property in the animal vests [changed from to vest property]. Actual taking may not, in all cases, be requisite; but all agree, that mere pursuit, without bringing the animal within the power of the party, is not sufficient. 122

This substantially similar reproduction was followed by the sentence: “The possession must be so far established, by the aid of nets, snares, or other means, that the animal cannot escape.”123

Kent then summarized the holding in Pierson v. Post:

It was, accordingly, held, in the case just mentioned, that an action would not lie against a person for killing and taking a fox which had been pursued by another,

121 2 KENT’S COMMENTARIES, supra note 74, at 282. 122 Id. 123 Id. 36

and was then actually in the view of the person who had originally found, started, and chased it. The mere pursuit, and being within view of the animal, did not create a property, because no possession had been acquired.124

That mere pursuit was not enough to create a possession was echoed in the civil law, according to Kent:

The civil law contained the same principle as that which the Supreme Court adopted. It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. The civilians differed on the question; but Justinian adopted the opinion that the property in the wounded wild beast did not attach until the beast was actually taken.125

The footnote there was to Justinian’s Institutes and the Digest – thereby completing the

full citation to both works he wanted to see.126 There was no footnote to Pothier,

although it seems likely that Kent had him in mind when he wrote “almost all the modern

civilians” in the annotation rather than “all.” He did not reproduce the disagreement in

his Commentaries, leaving it in there with “[a]lmost all the jurists on general

jurisprudence.”

We will see that Kent was proud of the way that he used his knowledge of Roman and civil law to intimidate colleagues, who could not themselves dispute the use of the sources to which he referred, to have his way with the law.127 Assuming that this was

one of the lessons he was keen to teach, Pierson’s lawyer shows here that he learned that

lesson well. In addition to dismissing Post’s lawyer’s source with the derisive description

that it was, after all, from a mere annotator (Barbeyrac), Pierson’s lawyer (“Sanford in

124 Id. at 282-83. 125 Id. at 283. 126 Id. at 283 n.b. (“Inst. 2.1.13. Dig. 41.1.5.2.”). The Digest reference is the same as the one in Kent’s annotation discussed above, and the Institutes is one away from the reference Pierson’s lawyer gave. See Pierson v Post, 3 Cai. R. 175, 175 (N.Y. Sup. Ct. 1805). 127 See infra p. 49. 37

reply”) stated that “we have taken our principles from the civil code, and nothing has

been urged to impeach those quoted from the authorities referred to.”128

The French civil code did not contradict the claim about actual taking, but it can

hardly be said to have supported it either. It stated that rights of hunting and fishing would be established by particular laws (Article 715); generally, animals were

“moveables” (Article 528); and that “as to movables, possession is as good as title”

(Article 2279).129 No provision specified what would be required to establish possession

where there was no particular law relating to foxes. The code was, however, brand new –

having been adopted just one year earlier in 1804 – and probably not very familiar to

anyone in New York, including Sanford, who shows in making this argument that he had

taken a page from Kent’s book, bluff them if you can. We will see that Sanford was

noted for his facility with modern languages, and if other jurists were not similarly fluent,

he probably thought he could use that to his advantage.

That is all well and good, but how are we to explain Kent’s silence in this debate?

Why did he not take a more active role on a question that he was later intensely interested

in? Could he have been away from Albany at the time? Could it have been handled by

some subset of the court in which he was not involved?

It is true that any judge of the New York Supreme Court could sign a writ of

certiorari.130 Although Kent need not have been the one to approve and sign the writ –

128 Pierson, 3 Cai., at 176. 129 The famous words of this particular provision (en fait de meubles, la possession vaut titre) were taken from the Parisian jurist, Françoise Bourjon in his work Droit commun de la France (1747). HALPERIN, supra note 95, at 68. See CODE CIVIL DES FRANÇAIS (Paris: Imp. de la République, 1804) available at Bibliothèque Nationale de France http://gallica.bnf.fr/ Document # FRBNF33964285. 130 1788 New York legislation required a Supreme Court justice to approve and sign any writ of certiorari (civil or criminal). Cases of certiorari that went directly to the Supreme Court for review, bypassing the court of common pleas and the mayors’ courts “became very numerous in the early nineteenth century; by 38

which was, of course, discretionary131 – it is unlikely that he would have allowed this

power to be exercised by other members of the court, at least not without his oversight

and consent. We will see that Kent kept tight control on the court’s activities – both its

personnel and things like its Reports, which he treated more or less as forms of his

personal property. This makes it unlikely that he would hand over an element of the

court’s functioning as fundamental as control of its docket. We know he was not away

from Albany on circuit during the August term in which the case was included. The

circuit ran from May to July.132 August was one of the four regular terms of the year in

which the five justices sat in Albany en banc.133

However, not all five judges are accounted for in the case – a majority and a

dissent might have been generated from three judges, namely, Livingston, Tompkins, and

another who was not named. The third judge could have been Kent, Smith Thompson, or

Ambrose Spencer, who were the other three justices of the court at the time.134 It is

possible that the case was argued in some kind of local special session near Sag-Harbor

in September of 1805 and the report of the case was included with the regular Albany

August sessions. The only piece of local contemporary newspaper coverage I have been

1814 the number was nearly two hundred a year. Many of these cases involved small amounts of money.” DUELY AND CONSTANTLY KEPT, supra note 51, at 53. 131 “The function of the writ is to secure the correction of errors of a judicial nature in the proceedings of inferior courts or [other decision makers] exercising judicial powers affecting the property or rights of a citizen … the appeal was in effect a common law certiorari … it is a matter of discretion, not of right … It is granted or refused in the discretion of the superior court.” 1 BOUVIER’S LAW DICTIONARY, 443, 446 (3d rev. 1984), s.v. “certiorari.” 132 Kent kept journals of those circuit trips. See 6 THE PAPERS OF JAMES KENT (Library of Congress, 1803- 1816). Unfortunately, there are no entries for the summer of 1805. 133 See John H. Moore, One Hundred Fifty Years of Official Law Reporting and the Courts in New York, 6 SYRACUSE L. REV. 273, 278 (1954-55) and “Appendix G” in DUELY AND CONSTANTLY KEPT, supra note 51, at 160 (listing Albany – February, August; New York – May, November for the years 1803 to 1810). Caines reports the regular rhythm of these four terms, with alternate locations, as February, May, August, and November. 134 The practice of recording who of the judges was present and who joined in what opinion, or was present though silent in opinions that were delivered seriatim, was not consistent. 39 able to find that might relate to the case is a notice in the Suffolk Gazette, which included an announcement in September that “[t]he adjourned session of the Supreme Court will be holden at the Court-House in Riverhead on Wednesday the 18th instant.”135 Riverhead is the county seat for Suffolk County on Long Island, and it is possible that this is where the case was argued, helping to explain why the Albany records have never yielded documentation relating to the case.136 If Kent was in Albany rather than Long Island in

September, his physical absence would help explain the silence, at least in 1805.

If Kent was using an 1821-24 edition of Pothier’s collected works in the preparation of his Commentaries, he would not have had it in hand in 1805. We know that his annotations could not have been made before 1814, the date of this edition of the collected cases. Given the substantial similarity between them and what appeared in volume two of Kent’s Commentaries, published in 1827, it seems likely that they were made in the process of writing that work, sometime between 1824 and 1827. Kent did have access to a copy of the stand-alone property treatise as early as 1810, which he could have shared with the judges and lawyers on the case.137 However, unless they were able to read French, it is not obvious it would have been of much help.138 With the

135 Suffolk Gazette, Sept. 9, 1805, at 3 (notice for “Sag-Harbor: Monday, September 16, 1805). 136 However, assuming Caines included the cases in chronological order, it is worth noting that Pierson v. Post does not appear at the end of those in the August term. 137 See Curtis v. Groat, 6 Johns. 168, 170 (N.Y. Sup. Ct. 1810); Putnam v. Wyley, 8 Johns. 432, 435 (N.Y. Sup. Ct. 1811); D. Merritt v. Johnson, 7 Johns. 473, 475 (N.Y. Sup. Ct. 1811) (for cases that cite the property treatise). These cases are written per curiam. However, Kent claimed to have written all the judgments of the court in 1811. See Watson, Chancellor Kent’s Use of Foreign Law, supra note 94, at 47. See also id. at 47-48 (for discussion of Putnam v. Wyley specifically). 138 A LexusNexus search “Opinion (Pothier) & Court (New York),” dates restricted to 01/01/1800 to 01/01/1825 (55 results) brings up something called “Evans’ Pothier,” used by judges other than Kent. However, this would appear to be an English translation of the treatise on obligations or contracts by David Williams Evans, not a collection of the complete works or the property treatise, suggesting the need at least some had of an English translation. See, e.g., Dennis v. Cummins, 3 Johns. 297, 298 (N.Y. Sup. St. 1803) (Thompson J.), S. Hall v. Shultz & Shultz, 4 Johns. 240, 249 (N.Y. Sup. Ct. 1809) (Thompson J.); Frith v. Baker, 2 Johns. 327, 329 (N.Y. Sup. Ct. 1807) ([Post’s lawyer] Mr. Colden). That there is no hit for anything that looks like the complete works of Pothier, most of which are to the specific works like 40 exception of Pierson’s lawyer, Sanford, the rest were stuck with their English translation of Barbeyrac’s notes on Puffendorf as against Justinian’s Institutes.

Why did Kent not reproduce this disagreement and where Pothier stood on it in the Commentaries? The annotations would suggest that he was thinking about it – both the general point about the nature of possession and the specific example of Pothier as a contrary authority who “ought to induce a different decision.” We know he thought the world of Pothier. Kent wrote in his autobiographical sketch that “I read a great deal in

Pothier’s works, and always consulted him when applicable.”139 In one of his opinions, he described Pothier as treating his topics “with a clearness of perception, a precision of style, and a fullness of illustration, above all praise, and beyond all example.”140 Why would Kent not record what Pothier had to say on the issue?

Kent would not have wanted to reopen the point for discussion, especially not in a treatise-like work, the point of which was to fix an authoritative iteration of the law, not cast doubt on it. As Lord Mansfield said, and Kent quoted elsewhere in the

Commentaries, “the certainty of a rule was often of much more importance in mercantile cases than the reason of it, and that a settled rule ought to be observed for the sake of

contracts, sale, loan, mandate, insurance, and charter parties, never including a multivolume number that goes higher than two. This negative finding supports the conclusion that Kent obtained and started using his set after his retirement from the bench in 1823. In other words, he cited to the stand-alone treatises in his decisions rather than the complete works because he did not yet have his copy of the latter. However, it might also be that the practice was to cite to the separate volumes using their page numbers rather than the volume number of the complete set, as he did in his annotation on Pierson v. Post, since those numbers varied between sets. You would know from your own annotation that the volume number was to your set but decide not to use this in a decision or published work, since readers might have different sets with different volume numbers. That conclusion is supported by the fact that Kent cited to the individual works, including the property treatise, in Kent’s Commentaries. See, e.g., 2 KENT’S COMMENTARIES, supra note 74, at 43 (“Pothier’s Trait[é] du droit de Propri[é]té”); 67 (“Pothier’s Trait[é] du Contrat de Marriage”); 262 (“Pothier’s Trait[é] du Contrat de Vente”), 398 (“Pothier, Traité des Oblig[ations]”); 437 (“Pothier, Traité du Contrat de Dépôt”); 447 (“Pothier, Traité du Prêt à Usage”); 452 (“Pothier, Contrat de Nantissement”). 139 Autobiographical Sketch of Chancellor Kent, 1 S. L. REV. 381, 389 (1872). 140 Griswold v. Waddington, 16 Johns. 438, 492 (N.Y. 1818). 41

property.”141 This was particularly so in the case of potentially troublesome unowned property like wild animals that moved around, leading to the dissension Blackstone

warned about. Given that the outcome in Pierson v. Post was a bit like six of one and a

half dozen of the other – both in terms of policy (bright line rule versus custom) and

authority (Justinian versus Pothier) – Kent probably did not feel passionately about

whether the outcome went one way or the other. Both were perfectly acceptable and

respectable formulations of the rule. It was more important by that time to sound certain

than to continue to discuss the issue. Most likely he was content to put the point in play

and see which way it went, in effect letting the students decide the issue in the heat of

forensic battle, using whatever sources they could obtain, subject to linguistic constraints.

Tompkins’s decision, therefore, is a tad “school boyish,” featuring long Latin

phrases (from Grotius), which seem to miss the point of Barbeyrac’s objection – that has

less to do with wounding per se and whether this involves instruments like snares, nets,

and traps (discussed in the Grotius passages), than the general point about the sufficiency

of declaring intention over an object when arguably that is all that can be reasonably

required given the nature of wild animals. That wounding would not necessarily be

enough (the point in the first passage)142 and that the use of instruments must ensure that

the wild things they contain cannot get out (the point in the second passage)143 shed no light whatsoever on this general point. However, Tompkins follows them with the statement: “[t]his qualification embraces the full extent of Barbeyrac’s objection to

141 1 KENT’S COMMENTARIES, supra note 93, at 444 [emphasis added]. 142 See DONAHUE, CASES AND MATERIALS ON PROPERTY, supra note 68, at 4 n.6 (“Some corporeal possession is required for obtaining dominium [a technical terms roughly translated as ‘ownership’], and therefore wounding is not enough”). 143 Id. at 7 n.7 (“But that possession can be not only with the hands, but with instruments, such as snares, nets, traps, so long as two elements are present: first, that the instruments themselves be in our power; second, that the wild things be so encompassed that they cannot get out”). 42

Pufendorf’s definition, and allows as great a latitude to acquiring property by occupancy,

as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his

notes.”144 He then says that because this is a case of mere pursuit, it cannot be brought

within the ideas of Pufendorf, Grotius, or Barbeyrac. That conclusion is just not accurate,

and one is left with the impression that Tompkins used Grotius to duck the issue and the

Latin passages specifically to obfuscate the point. Kent would have approved.145

It is important to notice is that, if Kent wanted to make sure the case was done

“right” (that every “I” was dotted and “T” was crossed, as his corrections in the two

Justinian citations demonstrate), he could have rendered the decision himself. It would

have been a perfect opportunity for him to showcase his own learnedness, something we

know was a priority for him. His silence – a deafening one given who he was and what

he cared about – begs for explanation. Perhaps he was not present at the argument if it

happened at the Riverhead courthouse. Perhaps he did not yet have had access to how

Pothier would have filled the gap. Given how he treated the point later in the

Commentaries, it seems that he cared less about the outcome than fixing the point in an authoritative way. If he was involved in setting the original issue for debate, the priority would have been generating an opportunity to put junior members of the bar and bench through their scholastic paces, engaging in an exercise where they had to work with an array of exotic foreign sources. Encouraging the use of a learned style and comfort with

an ecumenical approach was more important than him having his say, dictating what the

144 See Pierson v. Post, 3 Cai. R. 175, 178 (N.Y. Sup. Ct., 1805). 145 Langbein, supra note 6, at 566-70 (especially 568 n.105, where Kent wrote in response to a proofreader who suggested that the Latin phrases be rendered in English: “[W]e don’t want every man to be his own lawyer, and he could not be, even if all the Latin was in the plainest possible English. What kind of legal protection would you have if every man could be a lawyer?”). Original quote in MEMOIRES AND LETTERS, supra note 6, at 199-200. 43

outcome should be or correcting it on this particular point, especially so long after the

fact. The process gave him what he needed for his thinking about property law – a decision worth reporting and eminent enough for him to cite in his own scholarly work.

What could possibly be gained by reopening it for debate nineteen years later?

So how exactly did Kent use Pierson v. Post to fill the gap left by Blackstone?

Kent started the property discussion in his Commentaries just as Blackstone did, with a discussion of how important property was. “[T]he sense of property is inherent in the

human breast,” Kent wrote.146 Indeed, according to Kent, “[t]he appetite for property is

so keen, and the blessings of it are so palpable, and so impressive, that the passion to acquire is incessantly busy and active. Every man is striving to better his condition.”147

Kent then moved on, as Blackstone also did, to the classification of chattels as either absolute or qualified, the latter consisting of air, light, and water, as well as animals fera naturae.148 Kent could not, however, follow Blackstone’s next step, namely to assign

ownership of animals not caught on private property to the King (“lord’s waste”) for the

sake of peace and harmony.149 In America, wasteland was wasteland. Another kind of rule was required in order to assign ownership to caught animals as between two rivals,

neither of whom owned the land. The case could have been framed in terms of

interference in the hunt. However, that would not have given Kent an American

precedent on an issue that all the great natural law scholars included in their texts and that

146 2 KENT’S COMMENTARIES, supra note 74, at 256. 147 Id. at 270. Compare 2 BLACKSTONE’S COMMENTARIES, supra note 25, at 3 (“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe”). 148 2 KENT’S COMMENTARIES, supra note 74, at 261. Compare 2 BLACKSTONE’S COMMENTARIES, supra note 25, at 14. 149 See 2 BLACKSTONE’S COMMENTARIES, supra note 25, at 14-15. 44

he would have to include in his own book if it was to be thought of as a comparable

scholarly work.

When Oliver Wendell Holmes Jr. prepared the twelfth edition of Kent’s

Commentaries in 1873, he made few changes to the discussion of Pierson v. Post.150 By that edition the local specificity of the text had, however, been watered down to cater to a national audience (e.g. it omits “of this state” when referring to the New York Supreme

Court). There is also a footnote on the statutory derogation from the common law in respect of hunted deer, which states: “The legislature of New York have enlarged the right of acquisition of game by pursuit, in the case of deer, in the counties of Suffolk and

Queen’s, by declaring, that any person who starts and pursue such game shall be deemed in possession of the same, so long as he continues in fresh pursuit thereof.”151 This was,

one might note, precisely what Pothier advised as the default position for the general law,

with fresh pursuit giving all the possession that was required.

Holmes took seriously the idea that the law should be settled, rather than settled in

a certain way. When he came to discuss the point about possession and wild animals in

his own famous lectures The Common Law (1881), he chose to demonstrate the point

about relativity by using the example of the whaling industry:

In the Greenland whale-fishery, by the English custom, if the first striker lost his hold on the fish, and it was then killed by another, the first had no claim; but he had the whole if he kept fast to the whale until it was struck by the other, although it then broke from the first harpoon. By the custom in the Galapagos, on the other hand, the first striker had half the whale, although control of the line was lost.152

150 th 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 350 (O. W. Holmes Jr. ed., 12 ed. 1873). 151 Id. at 350 n.d. [emphasis in the original]. 152 See OLIVER WENDELL HOLMES JR., THE COMMON LAW 212 (1881). 45

What was important was that the law be clear – “were it not for such customs, there must

be a sort of warfare perpetually subsisting between the adventurers.”153 As the whaling

example showed, “the difference between the power over the object which is sufficient

for possession, and that which is not, is clearly one of degree only, and the line may be

drawn at different places at different times.”154 Such differences tend “to shake an a priori theory of the matter.”155

That said, speaking of the way the point had been decided and of Pierson v. Post

in particular, Holmes wrote: “fresh pursuit of wild animals does not give the pursuer the

rights of possession. Until escape has been made impossible by some means, another

may step in and kill or catch and carry off the game.”156 The point might well have gone

the other way – as the New York legislature chose to make it with respect to deer;

however, it did not do so.

Interestingly, Kent influenced Holmes more than the decision itself, an impact

that is not surprising in view of how familiar Holmes was with the Commentaries as

editor of the twelfth edition. Holmes phrased the general issue in terms of what degree of

“power over the object [was] sufficient for possession.”157 It was Kent who used the

term “power” in the Commentaries. That word appears nowhere in the reported case – not in the lawyer’s arguments or in the majority and minority decisions. Livingston does on one occasion use the word “reach,” which might explain why in the annotation Kent put the point in terms of “reach or power.” However, by the time we get to the

Commentaries, it has been reduced to “power,” which only Pothier used (pouvoir). In

153 Id. 154 Id. 155 Id. at 213. 156 Id. at 217. 157 Id. 46

other words, what Kent said (adopting some but not all of Pothier) was more important

than the decision itself. So, for instance, a New York lawyer, Esek Cowen did include a reference to the case in his popular 1821 work. However, he did not use the word

“power” in this pre-Kent’s Commentaries formulation.158

Did Kent grant certiorari in the case and assign it to be decided (framed the

precise way it was) to create an authority for him to cite in his Commentaries? Well, we

know he was thinking from an early date about property and what a treatment in the general law would look like. Kent’s public announcement of the topics for his 1794-95 lectures at Columbia stated that he would cover “the rights of property, both real and personal in all their several gradations and modifications, and the several ways in which property is acquired and transferred.”159 We also know that he wrote to his brother,

Moss, that he was unable to get to that part of the course that dealt with personal property, although he hoped to in the future.160 He might have done so when he

subsequently offered the course in the fall of 1795 or 1796.161 He certainly may have

covered the topic in the second set of lectures he delivered at Columbia in February of

1824 and the academic year 1825-26.162

It seems likely that, given Kent’s familiarity with the chestnut problem of

property in wild animals in its civil and Roman law iterations (Grotius, Pufendorf, and

158 See ESEK COWEN, A TREATISE ON THE CIVIL JURISDICTION OF A JUSTICE OF THE PEACE, IN THE STATE OF NEW YORK 160 (Albany, N.Y.: William Gould, 1821). 159 See Kent’s Introductory Lecture [delivered November 17, 1794] 3 COLUM. L. REV. 330, 342 (1903). 160 See Langbein, supra note 6, at 559 n.59, paraphrasing the 1795 letter (“Writing to his brother in March 1795, Kent explained that he had hoped to cover personal property but ran short of time; he hoped to add that subject for the next course in November”). 161 Hicks noted in his biographical entry on Kent that he delivered the first set of lectures from November 17, 1794 to February 27, 1795, again in November 1795, and what looks like a third time for a very small group in November 1796. See Hicks, supra note 76, at 345. 162 See Langbein, supra note 6, at 564-65 on the second set of lectures, copies of which, unlike the first, have survived. 47

Justinian), he would have understood from the moment he saw the facts of the case the

opportunity it presented.163 He would have known about the gap in Blackstone and the

absence of an English solution in an American context.164 The lawyers and judges could

be set to flex their non-English law muscles in what amounted to a kind of moot court debate. It would also give Kent – already thinking about his general treatment of the common law of property – an American decision for him and later courts and commentators to cite when discussing the classic issue. One could not have ordered up a more perfect arrangement. My argument is that we should think very seriously about the possibility that Kent did just that – or, at the very least, members of a court under his influence, who had been trained to see what he could in terms of the opportunities the case presented, did just that.

It was only natural that early American lawyers who spent a tremendous amount

of effort becoming learned by reading the civilian and natural law thinkers, wanted

opportunities to exercise that knowledge and apply it to real-life cases. Daniel

Coquillette has described the way that John Adams stood at the ready with his Grotius

and Justinian in a Massachusetts whaling case of the sort Holmes identified – two

whalers, each of whom had put their harpoon in.165 Adams included in his “Notes of

Authorities” on the case the same passage from Justinian’s Institutes Pierson’s lawyer did

– the animal is the hunter’s as long as it is under complete control; if it escapes it belongs

163 See MEMOIRES AND LETTERS, supra note 6, at 19 (Referring to his clerkship years in Poughkeepsie, Kent wrote “I read, the following Winter [1782], Grotius and Puffendorf, in huge folios, and made copious extracts”). 164 Id. (referring to reading “parts of Blackstone again and again”). Blackstone’s natural right to property was based on “the authority of Grotius, Pufendorf, Barbeyrac, and Mr. Locke.” By citing such authorities, Blackstone “ensured that the science of English law would not be found insularly ignorant of the prestigious and influential body of Grotian natural law theory.” DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN EIGHTEENTH-CENTURY BRITAIN 46, 37 (1989). 165 See Coquillette, Justinian in Braintree, supra note 69, at 383-86. 48

to the next person who seizes it.166 However, the case went to arbitration and “Adams’

classical learning was [n]ever brought to bear … [Nonetheless] Adams certainly did get

his Roman law books out for the case, and doubtless would have tried to see if the Court

of Vice Admiralty would have listened to those arguments, even in Boston in 1768.”167

The mentor who emphasized to Adams the importance of Grotius and Pufendorf – and in

fact expressed a preference for Barbeyrac in his notes on Pufendorf over Pufendorf – set

Adams on a path reading these texts. It made sense that Adams would want to use them if and when he could.168

In their scholarly treatments of the rule “he who seizes takes,” both Kent and

Holmes cited another New York Supreme Court case in which Pierson v. Post was

followed.169 This was a case called Buster v. Newkirk in which two hunters were fighting

over the ownership of a hunted deer.170 By the time this case was decided, Kent had moved on to the position of Chancellor of the Court of Equity. The unadorned style of

Buster v. Newkirk illustrates what a non-puffed up for scholarly treatment at the New

York Supreme Court – left to its own devices – looked like. It also illustrates how

Pierson v. Post could be used for simple following once the precedent was in place despite the fact that it was not a fresh pursuit case.171 The straightforward way it was handled underscores that there was something special about Pierson v. Post and the way that it was argued and decided.

166 Id. at 385. 167 Id. at 386. 168 The mentor was Jeremiah Gridley. See id. at 363 (asking Adams on first meeting had he read Grotius and Pufendorf), 382 n.7 (“On Gridley’s death, Adams characteristically wrote, ‘He was a great admirer of Barbeyrac: thought him a much more sensible and learned Man than Puffendorf’”). 169 See 2 KENT’S COMMENTARIES, supra note 74, at 349; HOLMES, THE COMMON LAW, supra note 152, at 217 n.1. 170 Buster v. Newkirk, 20 Johns. 75 (N.Y. Sup. Ct., 1822). 171 The interloper was a second hunter and the original pursuer gave up the chase overnight, making “he who seizes takes” the obvious outcome, with or without Pierson v. Post. 49

We will see in the next section of the paper that the legal personnel involved in

the case – the personalities and background training of the lawyers and the judges –

support the theory that Kent would have wanted to accept this case to provide the

opportunity to have an exercise in the use of foreign sources. This and his interest in an

American precedent explains why, as the Chief Justice of that court, he would grant certiorari (or give his consent for one of the other judges to have done so) in a case that had no immediate commercial context and no substantial remedy in sight for either of the

parties. Why, in other words, Kent would not have simply said to himself, as he was

reported to have done openly in another case that involved an item in dispute valued at

$1.75, “I won’t hear it! I won’t hear it! … I would rather pay it myself.”172 These were

the kind of lawyers who would have asked for the case so they could have their debate

and these were judges who would go along with the exercise.

B. Kent’s Court: The Lawyers & Judges

It is well-known that when Kent first went to the bench he found the other judges

“very illiterate as lawyers.”173 Morgan Lewis, the Chief Justice of the court under whom

Kent served, was a no-nonsense kind of fellow, not given to writing long or learned

decisions. Under his leadership there were 174 unanimous decisions (usually about the

length of a paragraph) and only eighteen dissents, with few concurrences and many

summaries of the decisions made by the reporter, Caines. It was clear that Kent was

going to do things differently. In an early thirteen-page decision that contained three

172 MEMOIRES AND LETTERS, supra note 6, at 185. 173 Langbein, supra note 6, at 567. See also MEMOIRES AND LETTERS, supra note 6, at 112 (“The judges, although not distinguished by any marked superiority, were by no means deficient in learning or ability; but it was in a very imperfect and unsatisfactory manner that their duties were discharged … [the decisions] were not the fruit of that careful and laborious investigation which is essential to the proper discharge of the judicial functions”). 50

concurrences and a dissent in which all the judges but Lewis wrote, Kent experimented

with a Latin-laden judgment. 174 The inaccessibility Latin created was something Kent

viewed as a positive feature of his learned approach to the law.175

Kent wrote of his decision to introduce “a thorough examination of cases and

written opinions” in the New York Supreme Court:

The judges, when we met, all assumed that foreign sentences were only good prima facie. I presented and read my written opinion that they were conclusive, and they all gave up to me, and so I read it in court as it stands. This was the commencement of a new plan, and then was laid the first stone in the subsequently erected temple of our jurisprudence.176

In his book-long study of Kent, John Theodore Horton called Kent’s use of erudition “a

weapon in itself,” which he used to “subdue … his opponents into acquiescence in his

own views.”177

Who were these junior judges who Kent was bullying in this way? Kent singled

Livingston out as the only one of the judges he could not “rout and carry … by my mysterious wand of French and civil law.”178 When Joseph Story visited Kent’s court in

1807, after Livingston had been appointed to the United States Supreme Court, Story

observed that the other judges, Thompson and Tompkins, interfered little in Kent’s

running of what could only be called “his” court.179 As for the lawyers involved in the

174 See Henderson v. Brown, 1 Cai. R. 92 (N.Y. Sup. Ct. 1803). 175 See supra note 145. 176 As quoted in Moore, supra note 133, at 288-89. Also reproduced in Autobiographical Sketch of Chancellor Kent, supra note 139, at 387; MEMOIRES AND LETTERS, supra note 6, at 117. 177 HORTON, supra note 6, at 148. “Skeptical of the English authorities though the other judges were, they found it increasingly difficult to combat them with success, when in solid phalanx he had marshaled them from Mansfield back to Glanvil, and had corroborated their wisdom, as he was often wont to do, with citations from the French jurists for whom it was fashionable to profess warm admiration.” Id. at 148-49. 178 The full quote is “I made much use of the Corpus Juris and as the Judges (Livingston excepted) knew nothing of French or civil law, I had an immense advantage over them. I could generally put my brethren to rout, and carry my point by some mysterious wand of French and civil law.” Hicks, supra note 76, at 347. Also reproduced in Autobiographical Sketch of Chancellor Kent, supra note 139, at 387-388; MEMOIRES AND LETTERS, supra note 6, at 117. 179 See HORTON, supra note 6, at 149-150. 51 case, they were no pettifoggers. It has been suggested that both “Colden” and “Sanford” were established lawyer/politicians, reared on the kind of classical training that would have prepared them well to participate in an exercise like this.180 Kent included both of them in his collection of the over one hundred obituaries of the elite lawyers and judges of his day, what Donald Roper called Kent’s “necrologies.”181

Post’s lawyer, David Cadwallader Colden had the background of an Anglophile, one year of classical education at a school near London, England, followed by law office training under a Loyalist émigré in New Brunswick before returning to practice in New

York.182 Pierson’s lawyer, Nathan Sanford, at the time of the case was United States attorney for the District of New York, a position that was thought to bring him $100,000 annually in fees.183 In addition to wealth and eminence, Sanford was known for the delight he took in reading the Latin poets.184 Hedges wrote in his newspaper account that

Sanford, “learned in the Pandects of Justinian” was “afterwards distinguished for mastery of many modern languages.”185

180 Berger speculates that Post’s lawyer, “Colden,” was David Cadwallader Colden, former U.S. District Attorney for New York City, leading practitioner of commercial law in Poughkeepsie and N.Y.C. at the time of this case, and future U.S. Representative and New York City mayor. Pierson’s lawyer, “Sanford,” Berger said was almost certainly Nathan Sanford, originally from Bridgehampton, a recipient of Long Island Pierson patronage as a child. He went to Yale, was admitted to the New York Bar, was appointed U.S. District Attorney for New York by 1803, and was known for his ability with languages. See Berger, supra note 4, at 1133-34. 181 See Donald M. Roper, The Elite of the New York Bar as Seen from the Bench: James Kent’s Necrologies, 56 NEW YORK HISTORICAL SOCIETY QUARTERLY 199 (1972). Roper reproduces seventy-six of the obituaries here, including Colden and Sanford, along with commentary. See id. at 218 (Cadwallader D. Colden) and id. at 229-230 (Nathan Sanford). 182 See Richard B. Morris, Colden, Cadwallader David, in 4 DICTIONARY OF AMERICAN BIOGRAPHY 287, 288 (American Counsel of Learned Societies 1930). 183 For this figure and the fact that Sanford held this lucrative position from 1803 to 1815, see Edward Conrad Smith, Sanford, Nathan, in 16 DICTIONARY OF AMERICAN BIOGRAPHY 349 (American Counsel of Learned Societies 1935). 184 Id. 185 It was somewhat ironic then that Sanford actually missed the Digest or Pandects reference in his submission, relying only on the Institutes. 52

Counsel with this kind of background would have been up to the test Kent set. In

fact, Sanford would ultimately succeed Kent as Chancellor of the Court of Equity, occupying this role for two and a half years.186 As important as Kent’s initiatives at the

New York Supreme Court were, it was his “elevation to chancellor in 1814 that was the apex of his judicial career” and the font for his life-long title as “the Chancellor,” which he retained until his mandatory retirement from the bench in 1823.187 Given Sanford’s

strong performance in Pierson v. Post, one might have thought that Kent would have

been pleased with this choice of successor. It seemed, on the contrary, to bring Sanford

in for particularly harsh treatment in the Necrologies. Kent wrote that Sanford “was

always in my view a hard, avaricious, heartless Demagogue. He was a member of the

Convention in 1821 [which led to the adoption of a constitution that phased out Kent] &

succeeded me as Chancellor.” Kent certainly associated the Democratic changes adopted

at that Convention with Sanford, who he wrote had “suddenly abandoned the federal &

joined the democratic Party, & became an admirer of Jefferson & corresponded with

him.”188 He also came in for criticism because “[h]e spent his last years in building a most extravagantly expensive but inconvenient House.”189

Colden also began his political career as a Federalist and, according to Kent,

abandoned the party and “succumbed to the lure of wealth.”190 Kent knew Colden well –

“When I removed from Poughkeepsie in 1793 Mr. Colden moved up & hired my House

at P. & resided for 4 Years as a Lawyer at Poughkeepsie.”191 Kent went a little easier on

186 Sanford became chancellor from Kent’s retirement August 1, 1823 until January 24, 1826. DAB Sanford, supra note 183, at 349. 187 See Donald M. Roper, Kent, James, in 12 AMERICAN NATIONAL BIOGRAPHY 596, 598 (1999). 188 Roper, Necrologies, supra note 181, at 230. 189 Id. 190 Id. at 206. 191 Id. at 218. 53

him than he had on Sanford, although he too ultimately garnered disapproval. Kent

described Colden as “a man of Genius & Vivacity & of ardent & generous feelings, & amiable disposition, but he checked & eventually destroyed his Progress to Prosperity &

Fortune, by a restless love of political office & a sanguine Zeal for Stock

Speculations.”192

Sanford had only been a lawyer for six years when he argued Pierson v. Post – he

was called to the New York Bar in 1799. If the “Colden” opposite was David

Cadwallader Colden, he was a slightly more senior lawyer – called in 1791 – and at the

time of the case he had already taken a few turns in the seat of United States attorney for

New York City.

If these aspiring and already quite successful young lawyers were just the sort of

fellows Kent was eager to set to the test, there are circumstances to suggest that he might

have been putting at least two of his associate judges through the same paces. Both

Tompkins and Thompson were relatively recent additions to the New York Supreme

Court – Tompkins was appointed in 1804 and Thompson in 1802 – and both of them had

been students of Kent.193

Tompkins was among those who heard the poorly attended but highly regarded

series of lectures Kent gave at Columbia in 1794-95. Tompkins’s “uneventful” judicial

career ended shortly after this case – in 1807 he took to a path of partisan politics,

holding a number of high visibility positions, including various turns in the Governor’s

chair, several unsuccessful bids for the presidency, and, finally, accepting what was

192 Id. 193 See Donald Roper, Tompkins, Daniel D., in 21 AMERICAN NATIONAL BIOGRAPHY 738 (1999); Donald Roper, Thompson, Smith, in 21 AMERICAN NATIONAL BIOGRAPHY 578 (1999). 54 thought of as a consolation prize, vice-presidency of the United States.194 Thompson apprenticed with Kent. Kent notes in the Necrologies that Thompson “served a faithful

Clerkship with me for three Years, & when I removed to NYork in 1793, He took my

Place as a Partner with Gilbert Livingston Esq.”195 Thompson was made Chief Justice of the New York Superior Court when Kent became chancellor in 1814 – an elevation Kent accepted (“He succeeded me as Ch.J.”).196 When Livingston died Thompson was given his position on the United States Supreme Court and he went on to distinguish himself in that role.197

In terms of years at the bar, Thompson would have had about the same level of seniority as Colden, whereas Tompkins had only two years on Sanford. The fourth associate judge at the time was Ambrose Spencer. He was comparable to the others in seniority, but he was not a former student of Kent and not someone who would have had any interest in a “learned law” exercise.

Ambrose Spencer was appointed to the New York Supreme Court the same year as Tompkins, 1804, and he would have been comparable in seniority to Colden and

Thompson as he was called to the New York Bar in 1788.198 Although said to have been an able jurist, his passion was politics in its pure form. His brother-in-law was DeWitt

Clinton and the two men were furiously operating the spoils system in the state, which was for the first time dispensing patronage to the Democrats. Donald Roper wrote that

194 ANB Tompkins, supra note 193, at 739. 195 Roper, Necrologies, supra note 181, at 234. See also MEMOIRES AND LETTERS, supra note 6, at 56. 196 Roper, Necrologies, supra note 181, at 235. 197 See Robert E. Cushman, Thompson, Smith, in 18 DICTIONARY OF AMERICAN BIOGRAPHY 471, 472 (American Counsel of Learned Societies 1936). See also Donald M Roper, Justice Smith Thompson: Politics and the New York Supreme Court in the Early Nineteenth Century, 51 N.Y. HIST. SOC’Y Q. 119 (1967). 198 See Donald M. Roper, Spencer, Ambrose, in 20 AMERICAN NATIONAL BIOGRAPHY 441 (1999). 55

“[w]hile it is a mistake to label Spencer a political boss in the modern sense of the term, he was the most effective New York political operative until replaced by Martin Van

Buren around 1819.”199 His legal decisions, though often important in settling the law in

New York courts, were generally said to have been based on common sense: “Not a deep student of legal lore like James Kent he wrote brief opinions wherein citations were few and reasoning was based on commonsense realities.”200

Kent characterized the use of French and civil law as a way to appeal to his

Republican fellow judges, who were “very kindly disposed to everything French … thereby enrich[ing] our commercial law.”201 He declared himself “a zealous Federalist” and a favorite of Governor Jay.202 He also stated that he “gradually acquired proper directing influence with my brethren,”203 despite their Republican stripes. However, he singled Spencer out as being “particularly, of a bold, vigorous, dogmatic mind, and overbearing manner.”204 In other words, he did not take to “proper” direction with the enthusiasm of Tompkins and Thompson.

199 Id. 200 Julian P. Boyd, Spencer, Ambrose, in 17 DICTIONARY OF AMERICAN BIOGRAPHY 443 (American Counsel of Learned Societies 1935). 201 Autobiographical Sketch of Chancellor Kent, supra note 139, at 388. Also reproduced in MEMOIRES AND LETTERS, supra note 6, at 117. 202 Autobiographical Sketch of Chancellor Kent, supra note 139, at 386. See also MEMOIRES AND LETTERS, supra note 6, at 18 (“He [Kent] early, from conviction, became a Federalist, of the Washington school, and conscientiously so continued through his life, without regarding the changes or influences of party politics”), 82 (“I had commenced in 1786 to be a zealous Federalist”). Kent’s library contained many pro-Federalist books, along with works by prominent Federalists. See, e.g., CATALOGUE OF HIS LIBRARY, supra note 71, at 7 (“The Anti-Jacobin”), 10 (“Ed[ward] Everett’s Orations”), 11 (“Ames’s Works”; “Webster’s Speeches, 3 vols”; “Adams’s Defence of the A[merican] Constitution”), 19 (“Dwight’s Character of Jefferson”; “Dwight’s History of the Hartford Convention”), 20 (“N. Webster’s Manual of Useful Studies”), 30 (many memoirs, including Burke and Hamilton), 35 (“The Federalist, 2 vols”), 40 (“Marshall’s Life of Washington”), 42 (“Life of Peter Van Schaack”), 44 (“Burke’s Correspondence, 4 vols”), 50 (“Ed[ward] Everett on Education”), 76 (“Story’s Commentaries on the Constitution, 3 vols”), 105 (“Webster’s Grammar, 3 vols”). 203 Autobiographical Sketch of Chancellor Kent, supra note 139, at 388. 204 Id. 56

Strong support for the pedagogical theory comes from Tompkins’s behavior in cases other than Pierson v. Post. It was unlike him to write such a long and involved decision or, indeed, even to say anything at all, factors that suggest he was participating at the behest of his teacher, Kent. Prior to Pierson v. Post, Tompkins heard 258 cases and wrote only eleven times. In three of those decisions, what he said consisted of a one- line statement stating that he agreed with one of the other judges.205 The other eight decisions were short compared with Pierson v. Post – at three pages, it was twice as long as his previous longest decision and much longer than the others.206 In one of those earlier decisions, Tompkins was obliged to speak per curiam (for the court) by the fact that he and Livingston were the only two judges present for the case and Livingston was forced to recuse himself.207 In another case, the comment was not much more than a line in agreement with what others said.208 If Kent was using Pierson v. Post to convince

Tompkins to come out of his shell, it did not seem to work. He stuck with his laconic style in the three cases included in Caines Reports that he wrote after Pierson v. Post.209

The same is generally true of the sixteen other decisions he produced before the end of his judicial career in 1807.210

205 See Schuyler v. Van Der Veer, 2 Cai. R. 235 (N.Y. Sup. Ct. 1804); Post and La Rue v. Neafie, 3 Cai. R. 22 (N.Y. Sup. Ct. 1805); Shadwick v. Phillips, 3 Cai. R. 129 (N.Y. Sup. Ct. 1805). 206 Codwife and Ludlow v. Hacker, Cole & Cas, Cai. R. 401 (N.Y Sup. Ct., 1804); Robinson v. N.Y. Ins. Co., 2 Cai. R. 357 (N.Y. Sup. Ct. 1805); Robert v. Garnie, 3 Cai. R. 14 (N.Y. Sup. Ct. 1805); Keeler v. Adams, 3 Cai. R. 84, (N.Y. Sup. Ct. 1805); Brandt v. Ogden, 3 Cai. R. 6 (N.Y. Sup. Ct. 1805); Delevan v. Baldwin, 3 Cai. R. 104 (N.Y. Sup. Ct. 1805); Hinckley v. Boardman, 3 Cai. R. 134 (N.Y. Sup. Ct. 1805); Ruan v. Perry, 3 Cai. R. 120 (N.Y. Sup. Ct. 1805). 207 See Codwife, Cole & Cai. Cas. 401. 208 Delevan, 3 Cai. R., 104. 209 See Ferris v. Coles, 3 Cai.R. 207, (N.Y. Sup. Ct. 1805); Smith and Delamater v. Richardson, 3 Cai. R. 219 (N.Y. Sup. Ct. 1805); Palmer v. Mulligan, 3 Cai. R. 307 (N.Y. Sup. Ct. 1805). 210 See Ludlow v. Bowne and Eddy, 1 Johns. 1 (N.Y. Sup. Ct. 1806); The People v. Barrett and Ward, 1 Johns. 66 (N.Y. Sup. Ct. 1806); Peck v. The Trustees of Randall, 1 Johns. 165 (N.Y. Sup. Ct. 1806); Jackson v. Vredenbergh, 1 Johns. 159 (N.Y. Sup. Ct., 1806); Potter v. Lansing, 1 Johns. 215 (N.Y. Sup. Ct. 1806); Cheviot v. Brooks, 1 Johns. 365 (N.Y. Sup. Ct. 1806); Bebee v. Bank of New York, 1 Johns. 529 (N.Y. Ct. Err. 1806); Ward v. Clark, 2 Johns. 10 (N.Y. Sup. Ct. 1806); Jackson v. Shepard, 2 Johns. 78 57

Tompkins and Thompson are the two judges Horton would have had in mind when he wrote about Kent the teacher, “[o]f two of his colleagues he had himself been the preceptor in the early years when as youths they had begun their study of the law.

Nor is it too much to say that he never ceased being their preceptor.”211 One of the most important things he had to teach was “the value of minute researches.”212 According to

Horton, Kent would leave a legacy in which:

Never again could it be said of the judges of New York … that their decisions showed no trace of knowledge or investigation. Never again could it be said that those judges were content to deliver their opinions orally. On the morrow of his appointment, Kent had mounted the bench furnished with an opinion written out and bristling with citations; and to his associate’s dismay, he had kept up the practice until they too were driven to adopt it in self defence.213

This style of beating one’s opponents into submission with learned citations and Latin passages were emulated by both Pierson’s lawyer Sanford and Tompkins – Sanford’s bluffing reference to the French civil code and Tompkin’s use of the Latin passages from

Grotius to duck the objection Barbeyrac raised.214 In other words, these students were learning well at the preceptor’s knee, imitating his tactics in the way they engaged in

(N.Y. Sup. Ct. 1806); Jackson v. Chase, 2 Johns. 84 (N.Y. Sup. Ct. 1806); Vrooman v. Phelps, 2 Johns. 177 (N.Y. Sup. Ct. 1807); Tom v. Goodrich, 2 Johns. 213 (N.Y. Sup. Ct. 1807); Dewitt v. Schoonmaker, 2 Johns. 243 (N.Y. Sup. Ct. 1807); Van Bramer v. Cooper, 2 Johns. 279 (N.Y. Sup. Ct. 1807); Sands v. Codwise, 2 Johns. 485 (N.Y. Ct. Errors, 1807); Colden v. Thurbur, 2 Johns. 424 (N.Y. Sup. Ct. 1807). One case stands out from the group – not for its learnedness but for the firm disagreement Tompkins shows with Kent – Ludlow v. Bowne and Eddy, 1 Johns 1. This case involved an American- owned ship and cargo that was on its way to France and was captured by a British cruiser. However, the contract stipulated that the property did not pass to the French consignee until it was delivered. France and Britain had been at war since 1793, and a British admiralty court ruled that the cargo was French property. Kent wrote in his dissent that it was fraud for a “belligerent” (France) to hire a “neutral” (America) to take on “the war risk” for a commission. Tompkins wrote that fraud should not be presumed and that “a neutral may without contravening any established principle of the law of nations, carry on commerce with either of the belligerent parties, in the same manner and to the same extent, as in time of peace, except in articles contraband of war, or to a blockaded port.” Id. at 4. Spencer agreed, adding that “English courts of admiralty … are governed more by ideas of political expediency, and of the necessity of destroying any commerce with their enemy, than by the law of nations.” Id. at 7. 211 HORTON, supra note 6, at 150. 212 Id. 213 Id. at 150-51. 214 See infra pp. 35-36, 40-41. 58

legal debate. This was a pushy pedagogy (on Kent’s part) that was itself teaching

pushiness as a way to settle the law.

The theory that Kent was setting a test for these junior judges and lawyers is

supported by the way that he behaved in the Necrologies. These sketches show a boss intensely interested in the assessment of those legal personnel who staffed the bar and

bench of his day – what are their “true portraits.” This was a concern that was probably

related to the fact that it was his court, the New York Supreme Court, which had recently

been given responsibility for admission to the bar.215 In earlier times, Kent would have

had a hand in the selection and placement of students like Thompson on the land’s

highest court, and he would have a certain amount of indirect influence on them when

they were there. Now a faded Federalist, all that remained was historical judgment of the

ultimate kind. Kent showed no hesitation in dispensing this, extending it to the grave,

with various “points” distributed for the degree and speed with which one turned away

from the Federalist Party – the slower and less fervently the better, how well one married

– a corrupt man with a nice wife would have this acknowledged, and the touchy issue of

wealth – it seemed a person must have some but not so much or so little as to be overly

preoccupied with it and certainly not to be foolish in its management. This was someone,

in other words, who took seriously his role as evaluator of the more junior (and senior)

members of his profession. Indeed, the gusto with which he took on the role as arbiter of

215 Duely and Constantly Kept, supra note 51, at 46. (“The [Supreme] court established by rule the qualifications for admission of attorneys and counselors to practice at the bar, and the clerk entered in the minute books lists of persons admitted to practice”). PAUL HAMLIN, LEGAL EDUCATION IN COLONIAL NEW YORK 126 (1970) (“at its February Term, 1805, the supreme court made uniform the educational standards for admission to the bar. It then required that all attorneys, solicitors, counsellors, proctors and advocates should be licensed by its judges only”). 59

virtue and eminence rose to the level of hobby.216 What was “proper” in the world (like

how interested one ought to be in money) was part of what he felt the need to comment

on.217 An exercise aimed at sorting and selecting would be just the kind of affair he would be interested in.

C. Kent’s Proprietary Perspective

This section of the paper sets out points drawn from the history of legal education

and what I call Kent’s proprietary view of the court – its personnel and its reports – to

support the pushy pedagogy theory. Much of this circumstantial evidence relates to who

Kent was and what he was trying to do with the New York Supreme Court.

When considering the plausibility of the pedagogical theory from a general

perspective, we might recall the central role that oral exercises played in legal education.

One thinks here of the moot court exercises that were traditionally used at the English

Inns of Court. Versions of these were a standard part of formal or semi-formalized legal

education in early nineteenth-century North America. The earliest American university

law program, begun by Jefferson’s mentor George Wythe at the College of William and

Mary in 1779, included moot courts and a “moot legislature” presided over by Wythe.218

Probably the most famous of the early proprietary office schools in Litchfield

216 See CATALOGUE OF HIS LIBRARY, supra note 71, at 115 (“Law and Lawyers, 2 vols”; “Lawyers of Eminent Characters”), 116 (“Lives of Eminent Lawyers, 2 vols”). See also MEMOIRES AND LETTERS, supra note 6, at 247-52. 217 See ALEXANDER, supra note 6 (on Kent’s ambivalent relationship to property as commodity, as opposed to a moral idea of property as propriety). While Kent was himself beset by serious financial worries (he was not wealthy and did not marry a wealthy woman), he took pride in his investments once he had the money to make them and enjoyed being able to buy books for his library. He made it clear that he did not think much about being overly preoccupied with money-making. See, e.g., MEMOIRES AND LETTERS, supra note 6, at 108 (in speaking of his decision to renounce his lucrative patronage positions for judicial office he wrote “[i]t appeared to me to be the true situation for the display of my knowledge, talents, and virtue … [however] the mere men of business and of pleasure, who estimate happiness by income, and by the splendid luxuries of the city life, all condemned my choice as mad and absurd”). 218 See Paul D. Carrington, Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years, 41 MERCER L. REV. 673, 675 (1990). 60

Connecticut had a moot court “program” in which various topics were chosen for

debate.219 We know that Kent toyed briefly with opening up a version of this school in

New York State.220 Maximilien Bibaud, who organized an early law school in Quebec, used an annual “Solemn Repetitoria” in his two-year program in which students were

questioned by eminent lawyers.221 Under an English Inn of Court influence lawyers

training in Ontario arranged various clubs and literary societies in which junior members

of the profession would engage in public speaking exercises, a format that was especially

popular in periods in which the formal part of the education, then firmly in the hands of

the profession, was faltering for one reason or another.222

We draw a sharp line between students and non-students since we have such a

formalized and professionalized understanding of the structure of legal education. It is

not clear, however, that people who were trained in a much less formalized milieu would

understand this distinction in the same way. So, for instance, in a context in which

apprenticeship and self-teaching and learning were the norm, such lawyers might have

thought of themselves as engaged in an on-going educational project in which a performative opportunity was just that. It was the kind of thing one did – Bibaud’s repertoria, for instance, were great events.223 Unlike the English Inns of Court, New

219 See Rules of the Debating Society of Law Student’s in Mr. Reeve’s Office 1796-97, in MCKENNA, TAPPING REEVE AND THE LITCHFIELD LAW SCHOOL 181-82 (1986) (recording the use of an alphabetical rotational system for the allocation of judges and counsel and the general principle that the disputants would agree on the subject of dispute). 220 See HORTON, supra note 6, at 267. 221 André Morel & Yvan LaMonde, Bibaud, François-Maximilien, in 11 DICTIONARY OF CANADIAN BIOGRAPHY 70 (1982). 222 See G. Blaine Baker, The Juvenile Advocate Society, 1821 to 1826: Self-Proclaimed Schoolroom for Upper Canada, HISTORICAL PAPERS – CANADIAN HISTORICAL ASSOCIATION 74 (1986). See also D.G. Bell, Paths to the Law in the Maritimes, 1810-1825: The Bliss Brothers and their Circle, 8 NOVA SCOTIA HIST. REV. 6, 14 (1988) (Loyalist lawyers in New Brunswick who set out a student version of “the Moot” called the “Forensick Society” in 1786). 223 In the first public repetitoria on December 12, 1851 “one student was required to answer questions on Roman law posed by Louis-Hippolyte LaFontaine, and another to respond to questions on obligations and 61

York’s “The Moot” did not accept law students, although younger members would be

called upon to speak to the problem under consideration or extemporaneously on a

question of law.224 Similar organizations existed in other colonies – one called Sodalitas

in Massachusetts and another named the Institutio Legalis in New Jersey.225 These clubs for practicing lawyers indicate that one did not need to be a student to participate in an oral exercise like this. A grown lawyer or judge might well grab an educational debating opportunity to put on or participate in a performance.

This might look a little odd to us. However, we probably ought to discount a fair

bit for just how formalized legal education has become in terms of its monopoly structure

in the twentieth century and what graduation from an ABA-approved law school means.

What might now strike us as eccentric even unprofessional behavior might not have

always looked that way. The assumption of a Roman law pseudonym to engage in

vituperative debate in the local newspaper was, for instance, all the rage in the early

Republic.226 Engaging in a mock legal or political debate, or a pretend judgment on a

thorny issue, were likely thought of as legitimate activities in the early nineteenth

century.227 The line between fact and fiction might have been a wavy one when an

contracts put, no less, by George-Étienne Cartier!” R. St. J. Macdonald, Maximilien Bibaud, 1823-1887: The Pioneer Teacher of International Law in Canada, 11 DALHOUSIE L.J. 721, 732 (1988). 224 See HAMLIN, supra note 215, at 103 n.8, 104 n.12. 225 Id. at 104 n.13 (Newark, New Jersey, founded the Instiutio Legalis around 1770 and the Sodality flourished in Boston, Massachusetts, after 1765). See also Coquillette, Justinian in Braintree, supra note 69, at 376-82 (on the Massachusetts Sodalitas club). 226 The proprietor of the Litchfield Law School, Tapping Reeve, used a series of pseudonyms in his local newspaper the Monitor to advocate the Federalist cause. One of these pseudonyms was “Phocion,” the one Alexander Hamilton liked to use in the Federalist / Anti-Federalist debates. Kent also loved Hamilton and used admiration of him as a stand-in for approval in his Necrologies. Kent said of Van Schaack who ran a Litchfield-like law office school in New York that “[h]e was intimate with Hamilton, & I remember he shed Tears at the News of his death.” See infra note 259; Roper, Necrologies, supra note 181, at 216. 227 Interestingly, “the Moot” precluded discussion on political issues. See HAMLIN, supra note 215, at 200-201 (“[No] member shall presume, upon any Pretence, to [in]troduce any Discourse about the Party Politics of this Province, and to persist in such Discourse after being desired by the President to drop it, on Pain of Expulsion”). 62

educational motive was at stake. So, for instance, hypothetical “Readings” at the Inns of

Court in which “[a]n eminent Bencher would select some statute, or section of a statute,

for analysis and elucidation, and explain its relation to the common law” were “regarded as authoritative [and] were frequently cited in argument at Westminster.”228 Just as

members of “the Moot” were assigned the duty of making reports of proceedings of the

New York Supreme Court, the court report of a real case might partake in some moot-

court style embellishment.229

If such a hypothesis is correct, it raises the question whether Kent, Tompkins, and

Livingston ought to have been engaged in a version of this activity. Like a judgment

rendered in verse, something that might be amusing to the judge who writes it, this spoof

does not treat the litigant with the respect and dignity she deserves and that the court

system as a public body ought to be in the business of giving. This is, however, a very

modern view of a court system as an open transparent organization there to serve the

needs of members of the public. It presupposes that the “clubby” fiefdom-like way of

viewing a prerogative like judicial office, which is likely how someone like Kent would have seen it, had disappeared. Just as Kent saw the use of foreign law and written reasons in part as effective ways to bully his colleagues into acquiescing to his views and as a means of consolidating his influence on the development of the law, he would also have seen his former students as legitimate vehicles through which to exert his presence and the court reports as his own property in some sense, a feeling exacerbated by the

“newness” of the enterprise that it is difficult for us to relate to now.

228 See HAMLIN, id. at 14 (the position as Reader had become a sinecure by 1700, as had the other two forms of exercise – “Moots” and “Bolts”). 229 Id. at 104 n.12 (“The Moot also gave its members another kind of training – that of reporting cases tried in the supreme court. They were, therefore the first law reporters in New York … Whatever reports there were, if any, have not been discovered”). 63

The practice of recording written reasons had only been made feasible in a

reliable way in New York a year earlier with the availability of a stipend for a court

reporter. Indeed, it would take about a hundred more years for the Supreme Court

Reporter to become a salaried official in the way we would recognize.230 Only then

would the person occupying this position no longer be able to hold the copyright for the reports in their name; it would instead be held in the name of “the People.”231 Until at

least the middle of the nineteenth century, judgments tended to be thought of as private

rather than public property by some judges and state-appointed reporters. Apparently,

retiring judges would take their opinions with them to publish down the road.232 An

1865 statute made it a duty for reporters leaving office to deliver all the opinions not

reported to their successors, indicating that this was not the automatic practice and that

the reports were thought of in a proprietary way.233 For Kent, the reports were the

repository of material on which he would draw in making his Commentaries. There

needed to be decisions from which to choose, preferably with a high enough tone to

warrant inclusion in a serious scholarly book with him as author. Gaps like what to do

with wild animals caught on wasteland were there to be filled.

Kent probably also thought of the patronage his judicial office gave him in

proprietary terms. His position as Chief Justice of the Supreme Court provided him with

the ability to bestow this largess as he saw fit – the Necrologies show he would have liked thinking about who deserved it and who did not. However, patronage could be analogized to grass seeds thrown out into the wind – some took and some did not.

230 See Moore, supra note 133, at 287. 231 Id. at 301. 232 See id. at 292 (giving the example of one judge who tried to publish two volumes of decisions he handed down over his long career). 233 See id. at 292 n.77. 64

Thompson seems to have been seed that took. Although Kent himself was never given a

position on the United States Supreme Court, he would see Thompson take up that role

and become an effective “spokesman” for Kent’s form of conservatism there.234

Apparently though, Kent found the learning at his knee slow, and he specifically

criticized Thompson for knowing “nothing of the civil or French law … He was very

little of a Scholar & with no large & liberal views, but he was honest, acute, quick at

repartee, & of plain & sound Principles of Morality & Truth.”235 Thompson tended to

cite to the English translation of Pothier’s treatise on obligations.236 But that seems to be

better than Tompkins, who was content in Pierson v. Post to mostly reproduce what was in Sanford’s argument and add the policy point that probably came from Blackstone about the importance of avoiding dispute.

Indeed, the way that Blackstone emphasized the importance of avoiding dispute in his introduction to property law and Tompkin’s own use of this rationale helps explain

why he did not rule the other way in the case. What we would now call a “bright line”

rule (he/she who seizes takes) tilts the decision in favor of Pierson, arguably minimizing

the dispute Blackstone warned would be frequent with this kind of property. However,

one might think that the Lockean policy would favor Post over Pierson, since it was

presumably he would had put resources (of some minimal amount) into his hunt – mixing his labor with that which he put his claim to. Livingston probably had something like

234 ANB, Thompson, supra note 193, at 579. 235 Roper, Necrologies, supra note 181, at 234-35. See also MEMOIRES AND LETTERS, supra note 6, at 56 (“He [Thompson] was a plain, modest, sensible, ignorant young man, with narrow views and anti- Federal politics. His mind did not expand, and his principles became liberal but very slowly”). 236 See infra note 138. 65

this in mind, since he (unlike the lawyers and Tompkins) listed Locke along with other

theorists, who he purportedly declined to listen to.237

Tompkins’s lack of enthusiasm for the exercise contrasts with the zeal of Caines,

who seemed to go beyond the call of duty when it was presumably he who, in a different

case, fleshed out the content of who the “many celebrated authors” were that Livingston

said were cited by Emerigon on a certain point, writing in the printed text of a marginal

note: “Faber, Vinnius, Duarenus, Kuricke, Loceenius, Devicq, Roccus &

Marquardus.”238 Many of these commentators were experts on maritime law in what

looked like a crowded field in the sixteenth and seventeenth centuries.239 This is by far

the most exotic list of authorities in the three volumes of the Reports. However, unlike

Pierson v. Post, there is a reason for their citation, namely elucidation of the complicated

rules in this specialized and commercially important area of the law. This burst of

erudition is ironic, since no matter what Caines’s potential for learnedness he was not to

be a recipient of Kent’s favor.

Kent claims to have been displeased with what he saw as a terrible number of

errors in Caines’s reports.240 Caines was replaced in 1805 with the more docile William

Johnson, with whom Kent went on to have a life-long relationship, dedicating Kent’s

Commentaries to Johnson and so on.241 Kent’s “ultimate judgment” of Caines in the

Necrologies was that “since he ceased to be Reporter in 1805, he had never been

237 See Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805). 238 See Walden v. Le Roy, 2 Cai. R. 263 (N.Y. Sup. Ct. 1805). 239 The authors here are probably: the French lawyer Antonius Faber (1557-1624); Arnoldus Vinnius (1588-1657), a Dutch lawyer who was a professor at Leyden; Francisco Duarenus (1509-1559); Reinhold Kuricke (1610-1667), a German expert on maritime law; Johannes Locceenius (1598-1677), a Swedish historian of maritime law; Francesco Rocco (1605-1676), an Italian expert in maritime law; Johannes Marquardus (1610-1668), another expert on maritime law. 240 See Langbein, supra note 6, at 575 (for the bad relationship Kent had with George Caines). 241 Id. at 578-83 (for the good relationship with Caines’s successor Samuel Johnson, “an ideal minion,” and the Boswell to his Johnson). 66

prosperous, nor greatly respected either for sound Judgement or pure Morals.”242

However, it is worth noting that whatever Caines’s moral worth in Kent’s eyes, as a

member of the legal community Caines had at least three books to his credit – a practice

book, a book of forms, and a work on what he called the Lex Mercatoria Americana.243

This last volume was print published in 1802, prior to Caines’s appointment as Reporter.

Its dedication to Thomas Jefferson gives a good reason for why Kent might well have

started out ill-disposed towards Caines. It might be that Caines was appointed against

Kent’s wishes and then as soon as Kent could he got rid of him.

Caines wrote that, “[e]ncouraged by legislative patronage, and a permission to exercise his own discretion,” starting in the second volume of his reports – Pierson v.

Post appears in volume three – he “began a little to dress the cases in his own language, and to discard the opinions of the judges the statements of fact, by which they were, when delivered, in general preceded.”244 This is not the kind of independence of spirit that would have pleased Kent. The first legislative expression of the reporter position in 1804 stated that this person would “report the cases … as may be deemed important to be reported.”245 A much less vaguely worded version regarding Chancery Reports in 1814

left no doubt as to who was in charge – the reporter would “from time to time report and

242 Roper, Necrologies, supra note 181, at 212-13. 243 See CAINES, A SUMMARY OF THE PRACTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, supra note 58; 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 (Alsop, Brannan and Alsop 1808) (Early American Imprints, 2d ser., 1808, no. 14627, 2 vols. (Shaw-Shoemaker Bibliography, 1801-1819)); GEORGE CAINES, AN ENQUIRY INTO THE LAW MERCHANT OF THE UNITED STATES, OR LEX MERCATORIA AMERICANA, ON SEVERAL HEADS OF COMMERCIAL IMPORTANCE, DEDICATED BY PERMISSION TO THOMAS JEFFERSON, PRESIDENT OF THE UNITED STATES (New York: Isaac Collins & Son, 1802) (Early American Imprints, 2d ser., 1808, no. 1978 (Shaw-Shoemaker Bibliography, 1801-1819)). 244 George Caines, Preface to the Second Edition of 1 CAINES REPORTS, supra note 78. 245 Moore, supra note 133, at 273. 67

publish such decisions of the court of chancery, as the chancellor of this state [i.e.

Chancellor Kent] shall deem of sufficient importance to be reported and published.”246

It is even possible that Kent did not want Pierson v. Post to be print published and was overridden by Caines – since, technically, it was up to the reporter to decide whether to report the case and to control the framing of the facts.247 Apparently, at least by 1824,

the practice was for the judges to take “copious notes,” which they would then make

available to the Reporter.248 However, it seemed that Caines was in the habit of taking

notes of the lawyers’ arguments to include in the reports, a practice that Kent wanted to

abandon out of concerns for “the candor of the Bar.”249 Pierson v. Post with its inclusion

of the lawyers’ arguments was prepared on Caines’s watch.

If the scholarly disputation in Pierson v. Post was for the edification of the

lawyers and judges involved and not for “public” consumption, the decision to include

the case in the reports might have been one of the reasons for Kent’s displeasure with

Caines. Kent might have preferred, for instance, that Livingston’s dissent had been omitted, since it is the main clue to the case’s oddity.250 However, the utter absence of

“hot bloodedness” in Kent’s annotations, his happy later use of the case in his

Commentaries, along with the norms of the day including a proprietary view of judicial

246 Id. at 278. 247 See Langbein, supra note 6, at 576-78 (on the tremendous amount of discretion in the hands of a court reporter at this time, including the ability to frame the facts). 248 See Duely and Constantly Kept, supra note 51, at 148. 249 See MEMOIRES AND LETTERS, supra note 6, at 125-26 (a December 23, 1805 letter from Kent to Johnson, in which Kent reports that “Mr. C. [Caines] offered me his notes of arguments, but I declined the acceptance of them, thinking it best to omit the arguments of counsel, and give only the facts and opinions of the court; relying on the candor of the Bar, for this inattention, in the peculiar circumstances of the publication of the first number. I shall, before leaving town for Albany, abridge the cases in my possession, and be thus far prepared to commence publication. Mr. C. told me that he should publish the reports of the last term [i.e. November], which conclude the year”). 250 It should be noted that some casebooks prefer to omit the dissent altogether. See, e.g., 1 RALPH W. AIGLER, ALLAN F. SMITH & SHELDON TAFT, CASES AND MATERIALS ON THE LAW OF PROPERTY (2d ed. 1951); EDWARD WARREN, SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY 3 (2d ed. 1924). 68

office and its prerogatives, suggest that this was not something that Kent would have

become angry about because it was not something that would have been seen as

inappropriate. It was all part of the laudable project of making an American common law

that could cite its own decisions as authoritative.

This interpretation of what Kent was doing in Pierson v. Post is consistent with

his general program for the court in terms of making its judges and those who appeared

before it more learned in the way he admired. It is also consistent with his project to

encourage the production and publication of domestic reports. For Kent, this was a

matter of being able to claim credibly that “[a] great proportion of the rules and maxims which constitute the immense code of the common law”251 so that a code would not be

required. In other words, a body of published reports would enable those jurists who were against codification to say we effectively already have a kind of code of law in the cases. Published reports were therefore a pillar in the anti-codification / pro-common law arguments of the 1820s. Consider here what Kent had to say about them, bearing in mind

Pierson v. Post and the pedagogical theory offered here:

Law Reports are dramatic in their plan and structure. They abound in pathetic incident, and displays of deep feeling. They are faithful records of those “little competitions, factions, and debates of mankind,” that fill up the principal drama of human life; and which are engendered by the love of power, the appetite for wealth, the allurements of pleasure, the delusions of self-interest, the melancholy perversion of talent, and the machinations of fraud. They give us the skillful debates at the bar, and the elaborate opinions on the bench, delivered with the authority of oracular wisdom. They become deeply interesting, because they contain true portraits of the talents and learning of the sages of the law.252

251 1 KENT’S COMMENTARIES, supra note 93, at 439. 252 Id. at 463. 69

This passage from the Commentaries was quoted by an anonymous admirer of Kent’s reviewing a collection of reports for New York, Connecticut, and Vermont.253 The author was arguing that books of reports should be “put earlier into the hands of youth for their legal education,” situated within an argument about the need to ward off codification and role reports played in this.254 Pierson v. Post fits the description perfectly – one of those little dramas, fodder for a “skillful debate” and “elaborate opinions” that would put the relevant “talents and learning” on display. However, it was its inclusion in Kent’s Commentaries, not a collection of reports that gave it the notoriety it needed.

In fact, by the 1820s there were too many of these reports. Lawyers felt the situation spinning out of control, and much of the codification debate was about getting some kind of order and coherence in what was an increasing (and ever growing) body of cases. The turn to commentaries and treatises was viewed as the systematizing solution that would keep codification at bay. This was how Kent saw his work in the

Commentaries and it is said to be the best way to think about what Story was doing in the publication of so many individual treatises in the 1830s.255 Looking back on those efforts, Roscoe Pound described both Kent and Story’s work in this way.256 However, drowning in the reports – as it was sometimes put – was not the problem in 1805, when the institutional mechanisms to put this infrastructure in place were shaky at best, and

Kent would have been trying hard to get his court to generate decisions that dealt with

253 See Article 9, Book Review, NORTH AMERICAN REVIEW 167, 182-83 (July 1828) (reviewing 1 ELIJAH PAINE, REPORTS OF CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE UNITED STATES, FOR THE SECOND CIRCUIT, COMPRISING THE DISTRICTS OF NEW-YORK, CONNECTICUT, AND VERMONT (1827)). 254 Id. at 181. 255 See R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE OLD REPUBLI 280-304 (1985). 256 See ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 138-67 (1938). 70

basic issues for which he wanted American precedents, of a high enough quality that they could be included in a work like the Commentaries.

Could it be that Kent heard of the case and invited counsel to come to the court in

Albany for a real “mock” debate? Perhaps Pierson’s counsel, Nathan Sanford, who was

from the area and who, as we saw earlier, performed well in the exercise, suggested the

idea. He might have heard about the local scuffle and was himself able to see in it the

kind of potential for a scholarly treatment he knew Kent would appreciate. It might well

have been he who arranged for the adjourned session at Riverhead. Or perhaps it was the

idea of the lawyer with whom Kent seemed to be friendlier, David Cadwallader Colden.

If the case was heard at the instigation of the lawyers, that would make it an arranged

case. Collusiveness (it was no longer a true controversy between the parties) would

explain what the parties were doing there when it is hard to believe Hedges’s story that

they (or their fathers) really cared about who held property in the fox.257 More likely the

parties – both of whom were leaders in the community – were asked for their permission

to litigate the case in this way. The tall tale that grew up about the costs of the case is

even more interesting if this was the case, because if it is right that the parties let the

lawyers and the court “have” the case to use for their own institutional ends, they would

hardly have been asked to pay anything in the exchange. The eminent lawyers hired to

search through and cite the authorities would simply have thanked them for the

opportunity to have their debate.258

D. Livingston’s Dissent

257 See Threedy, supra note 65, at 1216-20 (discussing “the collusive case”); ALEXANDER, supra note 6, at 188-94 (on Fletcher v. Peck, a “prearranged” case). 258 Hedges, supra note 53 (“[e]minent counsel were engaged and the authorities were searched and cited”). 71

Given Kent’s presence behind the scenes in Pierson v. Post, one would think that

the case should be understood as a disagreement about the use of foreign authorities, with

Kent, the Federalist, liking English law and following authority (even if it was French), and Livingston, the Democrat, speaking out for a more liberating implementation of “our own law.” However, given Livingston’s competency with respect to these authorities, his comfort with and use of them, what he says in Pierson v. Post should not be taken as a

straightforward objection to the use of foreign authorities, English or non-English. It was

not xenophobia, in other words. According to Kent, Alexander Hamilton taught him and

Livingston to use civil law in commercial cases, specifically the law of insurance, which

Hamilton specialized in.259

In making a parody of learnedness in the case – specifically by offering what

McDowell shows is an absurd treatment of foxhunting – Livingston seems to have been

taking an opportunity to poke fun at Kent’s learned tone, the pretentious style he was apt

to adopt and, in turn, to inculcate in his students. However, the argument here is that

while Livingston was gently mocking Kent’s scholarly style, he was not really objecting to the majority decision in the case, either in terms of its substantive outcome or Kent’s use of the court in this way. By offering the contrary policy formulation – albeit lightheartedly – he was in fact showing his approval of the exercise by participating in it in his own way. So, for instance, although the dissent is full of frolic, Livingston shows

259 MEMOIRES AND LETTERS, supra note 6, at 316-17. On Kent’s great affection for Hamilton, see id. at 31-32, 57 (“Hamilton became my idol very early in life”), 227-29, 281-331 (on the historical sketch Kent wrote for Hamilton’s widow). 72

he understands the seriousness of the gap-filling exercise by making sure that he does not

end his reasons without mentioning the technical point about wasteland.260

The dissent in Pierson v. Post contains clear language about the “right to establish

a rule for ourselves.” Indeed, if ever there was a case in which the New York Supreme

Court was free to decide a question in keeping with local conditions this was it – as if to

say, if there is no right here, there is none anywhere. So, for instance, Livingston points

out that the Romans did not engage in foxhunting: “In his [Justinian’s] day, we read of no

order of men who made it a business … [to hunt] these animals … without any other motive than the preservation of Roman poultry.”261 There would, therefore, be no

reason to value what they had to say on the matter with respect to recreational

foxhunting. [T]empora mutantur – the times change and we change with them.262

Unlike Kent, who was a Federalist Party appointment, Livingston was given his

seat on the New York Supreme Court as a Jeffersonian-Republican. Although John Jay

was his brother-in-law, Livingston was fiercely opposed to Jay’s rise as Governor in New

York State and played a key role in disposing of “inconvenient election returns” in Jay’s

race against George De Witt Clinton in 1792.263 When Clinton came into power, he

started the process of assigning to Democrats lucrative offices that had always belonged

to Federalists. Livingston’s appointment to associate judge in 1802 was a reward for the

help he and Clinton gave Jefferson to help Jefferson carry the state in the 1800

260 See Pierson v. Post, 3 Cai. R. 175, 181 (N.Y. Sup. Ct. 1805) (“… a pursuit like the present, through waste and unoccupied lands”). 261 Id. at 180. Apparently Livingston was wrong; the Romans did foxhunt. See WATSON, LAW OUT OF CONTEXT, supra note 92, at 148. See also Alan Watson, Introduction to Law for Second –Year Students, 46 J. LEGAL EDUC. 430, 442 (“the Romans did keep and breed dogs for hunting, a pastime passionately pursued even by Emperors”). 262 Pierson, 3 Cai., at 180. 263 See ANB, Livingston, supra note 40, at 765. 73

presidential election.264 It was support for Jay and opposition of Clinton that drove Kent

from Poughkeepsie to New York City.265

Having come into his position in this way, it seems likely that Livingston felt that

he was supposed to express the well-known Democratic antipathy towards English

jurisprudence in response to the stalwart Federalist Kent. It was the “Jacobinical”

Democrats (as the Federalists like to call Jeffersonian-Republicans), who were inspired

by the French Revolution and the goal of starting everything from scratch using

Enlightenment reason in a way that was more representative of the people and less elite,

at least in the sense of already-entrenched power and privilege.266 In other words, “old”

authority was charged with a political valance, crafted to invoke associations with the order and authority Federalists were supposed to stand for, as against democratic

“newness.”267

Whatever political party was responsible for the judicial appointment, anyone

serving in the role must have recognized quickly that it was the height of foolishness to

reject bodies of English law out of some kind of generalized disdain for all things British.

Livingston would routinely invoke English law as authoritative without blinking an

264 Id. 265 See MEMOIRES AND LETTERS, supra note 6, at 42-50. 266 The French Civil Code was an odd symbol in this respect, produced as it was at the end of the Revolution rather than the beginning by four men of the old regime, points made in early twentieth-century American articles on the Code. See Maurice Amos, The Code Napoleon and the Modern World, 10 J. COMP. LEGIS. & INT’L L. 222, 223 (1928) (“the Code came at the end and not the beginning of fifteen years of Revolution … It has been said that Napoleon made the Revolution respectable [and] that the Code summed up its permanent achievements”); Charles Sumner Lobingier, Napoleon and His Code, 32 HARV. L. REV. 114, 117 (1918) (“Of the four [codifiers] who were selected everyone was past middle age and a conservative, at heart attached to the old régime, and Napoleon knew it. He recognized perfectly well that their natural sympathies were with the past”). 267 Horton sees Kent’s love of old authority as part of his conservatism – specifically a view of antiquity as evidence of soundness. See HORTON, supra note 6, at 270-71. 74

eye.268 However, wherever possible, he also took the Jeffersonian-Republican charge seriously by at least expressing a preference for domestic decisions rather than foreign ones. So, for instance, in one case Livingston preferred to use a New York case rather than English ones, and he wrote in his concurrence: “My judgment therefore in favor of the defendant is not founded on British authorities, but entirely on a former decision of

our own.”269

In addition to English law, contrary to the impatience he showed with Justinian

and the like in Pierson v. Post, Livingston would also follow non-English foreign law. In

Leavenworth v. Delafield, he showed that like Hamilton and Kent, he would willingly go

to “the ancient laws and usages of other commercial nations” in maritime insurance

cases. There he wrote:

It is a matter of surprise that questions which must frequently have occurred in so commercial a country as Great Britain, and where so large a capital is employed in insurance, have not been decided in any of her courts. We must, therefore, endeavour to discover, what is reasonable and most conformable to the ancient laws and usages of other commercial nations; for where precedents are not to be found, the practice of such countries may be deemed the best guide on the subject of maritime law.270

Livingston referred to Samuel Ricard – a writer on general commercial law based on

Amsterdam, as well as the Lex Mercatoria of Wyndham Beawes – a writer on the English

law merchant, both of whom were cited in a French commentator Balthazard-Marie

Emerigon.271 He even refers to Pothier.272

268 See, e.g., Green and Mosher v. Beals, 2 Cai. R. 254, 255 (N.Y. Sup. Ct. 1804) (“It is settled in England, 7 D. & E. 207, notwithstanding an opinion of Lord Mansfield at Nisi Prius to the contrary, that one partner, in consequence of the general authority derived from the articles of copartnership, cannot excuse deeds for the other”). 269 Lowry v. Lawrence, 1 Cai. R. 69, 72 (N.Y. Sup. Ct. 1803) [emphasis added]. 270 Leavenworth v. Delafield, 1 Cai. R. 573, 575 (N.Y. Sup. Ct. 1804). 271 Id. at 577. 272 Id. at 579. 75

This openness to foreign and specifically civilian authorities writing in a

commercial law tradition, so different from the hostile rhetoric of Pierson v. Post, is consistent with the practical demands of this kind of early American law, where uniform rules for shipping and marine insurance were obviously politically and legally important

because they were so commercially important. Indeed, commercial law and maritime law

were areas in which Livingston specialized when he was appointed to the United States

Supreme Court.273 However, where Kent’s Federalism left him free to roam into English

or any other kind of law that would be of use – although presumably, as a Federalist he

was not supposed to like “French things” (which, as we saw above, he conveniently

justified by reference to the Republican stripes of the other judges) – Livingston seemed to think he needed to continue to toe the independent-law line. So, for example, in

Leavenworth v. Delafield, where the issue was how one ought to pay out expenses such as the crew’s wages incurred when a ship with freight was captured, Livingston decided the matter in accordance with the general trend amongst commercial nations. The way of valuing the vessel and the freight was something, however, that Livingston thought “we

are at liberty to make … for ourselves.”274

Although Livingston emphasized the importance of adhering to domestic

precedents once made, only eighteen months later, in another marine insurance case,

Penny and Scribner v. The New York Insurance Co in which the ship in question had

been waylaid under an embargo rather than by capture, Livingston chose to follow an

English decision, given “after solemn argument, by the Court of King’s Bench,” rather

273 See Robert E. Cushman, Henry Brockholst Livingston, in 11 DICTIONARY OF AMERICAN BIOGRAPHY 312, 313 (American Counsel of Learned Societies 1933) (describing Livingston’s niche practice on this court as consisting in thirty-eight majority decisions on commercial and maritime law). 274 Leavenworth, 1 Cai. R. 573, at 579. 76

than the New York precedent.275 He was, however, careful to say that, in principle, “for

the sake of uniformity, the latter [the domestic decision] should be followed, unless

manifestly incorrect, however respectable the other [the English decision] may be.”276

And when he chose the English decision, it was

not on the ground of authority, the decision being posterior to the Revolution, but as the most reasonable; the most conformable to the understanding of the different classes of underwriters; the best calculated to prevent confusion and embarrassment, and the most likely to throw upon each the loss which the particular subject insured by him has sustained.277

Yet choose the English decision he did.

Interestingly, in distinguishing between the situation of capture and an embargo,

Livingston relied on the Dutch “neutral” Ricard.278 However, his patience with Pothier came to an end, since he “assign[ed] a reason for this distinction [between the two different ways of measuring coverage for loss], which is not very satisfactory, and, therefore, I shall not repeat it. From Emerigon … we also learn, that there are foreign writers, although there be a diversity of opinion among them.”279 Indeed, this diversity

of opinion seemed to be what most vexed Livingston about the use of civilian authorities.

In another case, he wrote that “the French law has been referred to as settling this point in favor of the plaintiff; but on looking into Emerigon and Valin, we shall find them at variance.”280 Although Livingston had “the classical taste and elegant accomplishments”

275 Penny and Scribner v. The N.Y. Ins. Co., 3 Cai. R. 155, 158 (N.Y. Sup. Ct. 1805). 276 Id. at 159. 277 Id. at 160. 278 The argument for the difference is that in a capture the contract itself (the charter party) is destroyed and the crew nonetheless stay on board to preserve the ship and cargo, which would otherwise be called on from the insurer as a total loss. In an embargo, however, no one is laying claim to that property and ship and crew are merely waiting to be allowed to leave. The ship’s company have not therefore remained on board to prevent a total loss and so the way of covering the loss should not be the same. See id. at 159. 279 Id. at 159-60. 280 See Lawrence v. Sebor, 2 Cai. R. 203, 207 (N.Y. Sup. Ct. 1804). Emerigon and Valin were eighteenth- century French maritime law experts. Balthazard-Marie Emerigon (1716-1785) wrote extensively in 77 that allowed him to follow Hamilton’s lead with respect to “the severe judgment of

Emerigon and the luminous commentaries of Valin,” he had limited patience with them.281 As he wrote in Pierson v. Post that “[w]riters on general law, who have favored us with their speculations on these points, differ on them all.”282

In the face of this diversity, Livingston thought that on the specific question of who as between Pierson and Post should be considered the earliest occupant, a rule that would exclude Pierson where Post had a “reasonable prospect” of catching the animal would be the right rule.283 Although this sensible competing formulation – in line with what Pothier would have said and the New York legislature did later say with respect to deer – risks getting buried after what must have been a facetious distinction between different kinds of dogs – “large dogs and hounds” and “beagles only,” as explained by “a certain emperor.”284 This emperor, Frederick, is who Livingston was referring to.285 The passage, which he reproduced, came virtually word-for-word from the Pufendorf Law of

Nature and Nations text not far from the first occupant starting point.286 Given that there

maritime law and insurance. René-Josué Valin (1695-1765), whose commentaries on the 1681 French maritime ordinances, which would influence all world shipping, were said to surpass the Ordinance itself in importance, both commentaries and Ordinance being very important in the development of maritime law in England and America. 281 See MEMOIRES AND LETTERS, supra note 6, at 318. 282 Pierson v. Post, 3 Cai. R. 175, 181 (N.Y. Sup. Ct. 1805). 283 Id. 284 Id. (“If at liberty, we might imitate the courtesy of a certain emperor, who … ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him”). 285 See PUFENDORF, supra note 79, at 4.6.10, 392 (“The Emperor Frederick made this Distinction in the case: If the Beast were followed with the larger Dogs or Hounds, then he was the Property of the Hunter, not of the Chance Occupant; and in like manner, if he were wounded or killed with a Lance or Sword. But if he were followed with Beagles only, then he passed to the Occupant, not to the first Pursuer. If he was slain with a Dart, a Sling, or a Bow, he fell to the Hunter, provided he was still in Chace after him, and not to the Person who afterwards found or seized him”). See Charles Haskins, Science at the Court of the Emperor Frederick II, 27 AM. HIST. REV. 669, 680-81 (1922) (on Frederick’s animal enthusiasms, including falcon and hound hunting). 286 The section of the text with the much contested Barbeyrac note was 386. See infra note 82. 78 is no indication in the case of what size or kind of dog Post was using (the facts merely say “dogs and hounds”), it is difficult see how Livingston could say that it “appears on the case, [the hunt] being with dogs and hounds of imperial stature” and seriously mean that to support the conclusion that Post should take.287

Livingston liked to paint himself as the practical one as between himself and Kent and that image might have been what he was seeking to foster in Pierson v. Post. For instance, approximately six months earlier we find two maritime insurance cases in which Livingston is objecting to an impractical result of Kent’s preference to follow precedent.288 Livingston thought that it would be extremely unfair to require the insurer of the merchant’s goods that were being carried on a ship to pay for the cost of repairs due to problems with the ship.289 The problem with covering repairs in a situation that had any degree of voluntariness about it was that ship owners would thereby be given an incentive to put them off until on route in the hopes that the shipper’s insurance would eventually bear part of this expense.290

On the basis of such cases, combined with the dramatic and memorable Pierson v.

Post, one is tempted to ascribe the contrasting perspectives of “practical” and

287 Pierson, 3 Cai. at 181. 288 Henshaw v. M.I. Company, 2 Cai. R. 274 (N.Y. Sup. Ct. 1805); The United Ins. Co. of N.Y. v. Robinson and Hartshorne, 2 Cai. R. 280 (N.Y. Sup. Ct., 1805). In Walden v. Le Roy, 2 Cai. R. 263 (N.Y. Sup. Ct. 1805), we see Livingston disagreeing with his own decision in Leavenworth v. Delafield, 1 Cai. R. 573 (N.Y. Sup. Ct. 1804) and Kent agreeing with “our law” as it was expressed in the earlier case and citing the same trio of Ricard, Beawes, and Emerigon, along with the established rule in the commercial court of Pisa. 289 He wrote “In England, I understand through a channel which leaves no doubt of the information being correct, that in a case like the present, these expenses are never brought into a general average” (i.e. shared by shipper and the owner of the ship). Walden, 2 Cai. R. 263, 269. According to Livingston, Leavenworth v. Delafield should be confined to situations of capture or an emergency that could not have involved preventative steps. 290 See also Henshaw, 2 Cai. R., for Livingston’s dissent on the same grounds to repairs. 79

“principled” to Livingston and Kent respectively.291 However, just as Tompkins’s majority opinion in Pierson v. Post has some functionalist considerations (the “bright line” rule “he who seizes takes” is the best rule to avoid disputes) and Livingston’s dissent has some – probably not altogether serious – formalist bits (“After mature deliberation, I embrace that [opinion] of Barbeyrac”),292 it would be difficult to characterize one or the other of them in this fashion. So, for instance, in a third case decided around the same time, we see Kent rather than Livingston worried about abuse and fraud against the insurance company in the situation of repurchase of a captured ship.293 In this case, each of the two jurists claim for their cause a grounding in “our law,” namely two different New York decisions.

One could not give to Livingston the exclusive prerogative for the creation of

“our law” in view of how we saw Kent use Pierson v. Post to establish a domestic authority to replace Roman and civil law authorities and fill the gap in Blackstone for

America. Kent’s outline for the 1794-95 lectures and the Commentaries were positively jingoistic in their nationalism and the importance of a unique American treatment of the general law. Both of them, for instance, broke with the civilian “institutional” form, which confined itself to private law topics, by including a significant foray into public law – the law of nations and an early kind of American constitutional law, which he planned would include

[t]he political history of the United States … from the earliest dawn of the Union to the settlement of the present Constitution. The final establishment of our

291 Indeed, that is just what Donald Roper did, using Pierson v. Post as his dramatic illustration of the point that “at least superficially” the ongoing argument between Livingston and Kent was one in which “Livingston represented a more modern thread of jurisprudence and a more dynamic entrepreneurial mode of thinking than Kent, who followed a more traditional line in both areas.” Roper, The New York Supreme Court, supra note 78, at 63. 292 Pierson v. Post, 3 Cai. R. 175, 181 (N.Y. Sup. Ct. 1805). 293 Hartshorne, 2 Cai. R., at 280. 80

Independence, will naturally lead us to examine the consequence of our separate situation, by a summary review of the Law of Nations, as applicable to the several conditions of Peace, of War and Neutrality.294

The Commentaries began with the law of nations and followed with “the government and

constitutional jurisprudence of the United States.” What was advertised in the outline as

a “systematic view of the Constitution and Laws of the National Government” appeared

in modified form.295

The focus, as Kent put it in the outline, was to be “our own history and

constitutions” without “any improper impressions being received from the artificial

distinctions, the oppressive establishments, or the wild innovations which at present

distinguish the Trans-Atlantic World.”296 This statement partook of the usual Federalist

fear-mongering re Jacobinism. However, even in “the British Constitution and Code of

Laws … many of the fundamental doctrines of their government, and axioms of their

jurisprudence, are utterly subversive of an equality of rights; and totally incompatible

with the liberal spirit of our American establishments.”297 He recommended that “the

student of our laws” learn how to distinguish between the traditions, get “a correct acquaintance with genuine republican maxims, and be thereby induced to cultivate a

superior regard for our own, and I trust more perfect systems of liberty and justice.”298

On the other hand, Kent’s lecture on the civil law in the Commentaries expresses a different sentiment. There he tells a story of everything having its roots in Rome – the

294 Kent’s Introductory Lecture, supra note 159, at 341. 295 The topics listed in the Commentaries included the president, the judiciary, and various forms of jurisdiction. Noteworthy differences between it and what was proposed in the earlier outline include specific reference to the jurisdiction of the Supreme Court (which is not in the outline), reference in the outline to “the subject of the federal government and its jurisprudence, with a detail of the criminal law,” id. at 342, (which was not in the Commentaries), and what the Commentaries calls “the jurisdiction of the federal courts in respect to the common law, and in respect to parties.” Id. at 341-42. 296 Id. at 333. 297 Id. at 334. 298 Id. 81 roots of English law and the beginning of the law teaching profession.299 Much admiration is expressed for the Patricians. It was their job “to retain the management and control of the whole administration of justice.”300 Their orders consisted in the

“mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives.”301 He expressed ambivalence about popularization of the laws

– it was a good thing that they “could not be changed at the pleasure of the people.”302

However, publication – presumably like his own in the Commentaries – was something that gave “great satisfaction [to] the people.”303 The Commentaries would help make codification unnecessary.304

In trying to sort out who, Kent or Livingston, is open to foreign authorities and who is hostile to them, one is reminded of the phrase, “turtles all the way down” – in the sense that there will never be an end to this that will settle the dispute. There will always be a case or comment that points the other way. What I have found is that the attitude towards foreign law goes back and forth for each of those two jurists between use and

299 Langbein noted this mistake Kent would repeatedly make with respect to the roots of English law. See Langbein, supra note 6, at 570. See also Ira E. Robinson, American Recognition of the Roman or Civil Law, 9 ILL. L. REV. 400 (1914-15). 300 1 KENT’S COMMENTARIES, supra note 93, at 491. 301 Id. 302 Id. 303 Id. at 492. Judging from the library, Roman history and politics were of intense interest to Kent, including works setting out the cyclical declension narrative that infused the way that Americans thought about Republicanism, as well as Roman rule. See CATALOGUE OF HIS LIBRARY, supra note 71, at 10 (“Arnold’s History of Rome, 3 vols”), 36 (“Montesquieu’s Spirit of the Laws, 4 vols,” “Grandeur and Declension of the Romans,” and “On Property and Suffrage in Ancient Rome”), 9 (“Finlay’s Greece under the Romans”), 11 (“Sharpe, Egypt under the Romans”). 304 See HORTON, supra note 6, at 301 (explaining that this was part of the reason why lawyers and judges greeted the Commentaries with such enthusiasm), id at 306 (Kent “became doctor of laws to the whole republic”). In addition to multiple copies of the French civil code, Kent’s library contained other codes and works on codification. See, e.g., CATALOGUE OF HIS LIBRARY, supra note 71, at 35 (“Empress Catherine’s Code for Russia”), 54 (“Report on Penn. civil code”), 59 (“Commercial Code of France (English)”), 62 (“Code Penal (French)”; “Humphrey on Codification”), 69 (“Civil Code of Louisiana”), 92 (“Code de Succession”), 97 (“The Livingston Code”; “Penal Code of Louisiana”), 99 (“Penal Code of China, 2 vols”), 109 (“French Code of Commerce (translation)”), 112 (“Code (French) of Criminal Instruction”). 82

abuse such that alternation just was shared speech regardless of political party affiliation.

Indeed, such flip flopping would be perfectly consistent with the general style of New

York politics at the time, which was characterized in the extreme by opportunism and

expediency rather than principle and distinctions between Federalists and Anti-

Federalists and different factions of Anti-Federalist Republicans were ephemeral at

best.305 What is clear is that both Kent and Livingston were self conscious about the use

of foreign law. Both of them thought that it was important to occasionally declare their

commitment to the post-revolutionary growth of “our law,” while at the same time continuing to trade in oldness and eminence as a way of grounding authority in

persuasive argument. There is no reason to think that they would not have understood the

costs and benefits of trading in both pro and anti-foreign law speech.

That leaves the obvious question, which is that if this was a pedagogical exercise,

why would Livingston object to training junior members of the bar and bench in the kind

of foreign sources that he too thought were important? The answer I think is that he did

not object. True, he would not have cared as much as Kent did about having a gap in a

scholarly treatment of property law. Hence his irreverent tone and gentle jabbing at the

patina of learnedness Kent was trying so assiduously to attach to the court. However, the

dissent was not as to substance (the content of the rule – like Kent, he probably did not

care much about that) or form (the use of the court to provide civil law training).

Livingston probably saw his role in the exercise to provide the quasi-obligatory dissent of

a moot court debate, the kind of exercise his own father would have applauded.

305 See ALVIN KASS, POLITICS IN NEW YORK STATE (1965). 83

Brockholst’s father, William Livingston was no stranger to the satirical pen.306

He also founded “the Moot,” a colonial debating club for lawyers.307 As Milton Klein

has explained, this was a club founded in 1770, modeled on one of the English Inns of

Court, Gray’s Inn.

[Its] [m]eetings were professional rather than social, and its regular sessions were devoted to formal debates on technical questions in law and to discussions of large questions of professional policy. Younger members of the bar received there virtually the benefits of a graduate exercise in law, and veteran lawyers and even justices of the Supreme Court sought the collective judgment of the Moot on knotty legal questions.308

Although Livingston was probably happy enough to participate in the kind of exercise he

would have been familiar with from his father’s days on “the Moot,” this did not mean

that his tone could not gently mock Kent’s scholarly ambitions for himself and his

students. The tongue-in-cheek style of Livingston’s opinion – with its own ornate style –

is probably best understood as enthusiasm for the exercise but on his own terms, with his

own amusement in mind.

Supporting the conclusion that Livingston meant his dissent in jest was that he was not doing as badly as one might have thought in the back and forth with Kent.

Between 1803 and 1806, Livingston dissented only slightly more frequently than Kent himself and delivered the majority only marginally less.309 A gentle jab that furthered

306 See John A. Krout, Livingston, William, in 11 DICTIONARY OF AMERICAN BIOGRAPHY 325, 325 (American Council of Learned Societies 1933) (William Livingston was “[a]lways more facile in writing than in speech, he delighted to compose satirical verse and witty broadsides which earned him a greater reputation as a censor than as a satirist. A young lady of his acquaintance, alluding to his tall, slender, and graceless figure, named him the ‘whipping-post’”). 307 See HAMLIN, supra note 215, at 96-97 (for a portrait of William Livingston in the context of discussion of “the Moot”). 308 Milton M. Klein The Rise of the New York Bar: The Legal Career of William Livingston, 15 WM. & MARY Q. 334, 357 (1953). See also HAMLIN, id. at 201-3 (for an appendix with a copy of its constitution and list of members). 309 Roper, The New York Supreme Court, supra note 78, at 82 n.32 (Of the seventy-five dissents from 1803 to 1806, twenty-three of these were Livingston’s and eighteen were Kent’s. Livingston delivered the opinion of the court forty-nine times, Kent fifty-five). 84

Livingston’s own image as funny and practical would have been all he wanted to make.

It was, in other words, friendly jousting. Kent and Livingston were in fact friends.

Livingston helped Kent get his first professorship at Columbia and an honorary degree.310

Kent disliked Democrats, but what he really seemed to resent was the moral failure signaled by “falling away” from the party after Jefferson’s election in 1800 – presumably because of the opportunism it indicated. Livingston did not switch allegiances in this way. His rejection of Federalism dated back to his bad relationship with John Jay and where different branches of the Livingston family stood in the machinations of New York politics. Livingston also became less politically active as he moved from this scene.311

The Pierson v. Post dissent, in other words, should not be understood as a real

dissent, either to the substance of the rule or the use of the court for this kind of pedagogical exercise. Livingston thought that recourse to foreign law was just as important as Kent did and would have approved of training junior members of bar and bench in its use. Livingston might have been less enthusiastic about helping lawyers sound learned for the sake of sounding learned. His participation in the debate – to provide the contrasting perspective – would for that reason gently mock Kent’s scholarly pretensions. Just as Kent saw in Pierson v. Post an opportunity for a learned exercise and seized it, Livingston grabbed one to create a memorable treatment (who can forget “the saucy intruder”) in which he would be the practical one in the debate.

Conclusion

310 Roper, Necrologies, supra note 181, at 205 n.10. See also MEMOIRES AND LETTERS, supra note 6, at 58 (listing “B. Livingston” under those who procured the Columbia appointment). 311 See ANB, Livingston, supra note 40, at 765. 85

There is no Chase, in which Men are so heated and rais’d, and in which they discover so much Violence of Pursuit, as in that of Truth: whence, if they happen to mistake the Scent, the more vigorously they proceed, the more effectively they are deluded.312

If the pedagogical theory and the reading of Livingston’s dissent presented here is

correct, it is indeed remarkable that generation after generation of law students have cut their teeth on Pierson v. Post without much sense of what was really going on in the case.

How many other leading cases might be like this – accepted and promulgated for institutional reasons that relate to lawyers and judges, how they want to use the law, and not at all to the parties in the case? For those who teach or continue to write about the

case, the question we are left with is in what way this originating context is relevant to

how the case is used and what it can be used for. The fact that it might be “made up” in

some way unconnected to the litigants and the real facts might be somewhat startling but

would not impugn its traditional use as a way to introduce the concept of possession.

Should the pedagogical theory presented here change the way that we think about

Pierson v. Post? Would it change the way one taught it?

As Clifford Geertz put it in the epigraph at the outset of the paper, “whatever it is

that the law is after[,] it is not the whole story.”313 Indeed, the case method as

traditionally executed would presume that such interests ought not be indulged. In many

ways, the whole point of the method is to strip off all superfluous fact to get to the legal principle or policy. “The skeletonization of fact … is in itself … an unavoidable and

necessary process.”314 Questions relating to what really happened or what was really true

would come in for the charge that they are irrelevant. The point of the case method of

312 Introduction to Pufendorf in OF THE LAW OF NATURE AND NATIONS 1 (Basil Kennett trans., 1703). 313 Geertz, Local Knowledge, supra note 1, at 173. 314 Id. at 172. 86

law school is to take those factors as true and then see what follows – in just the way that

the court did in Pierson v. Post. The goal is not to get at “the whole story” but to let the

legal system settle disputes in a peaceful manner. If after-the-fact the reporting of such

proceedings results in the exploration of “a novel and nice question”315 of interest to

academic lawyers, so much the better – one of them will pluck it from the pages of the

Reports and give it what might become an exalted place in a casebook where it will be

turned over by endless hungry minds. Depending on how well it articulates the kind of

policies and principles lawyers are interested in, it might attain the notorious status of

Pierson v. Post.316

If the pedagogical theory is correct, what is interesting about Pierson v. Post is that it was not a case which happened to coincide with “a novel and nice question.” It would never have been treated as seriously as it was if Kent or one of the jurists under his influence had not seen in it the opportunity to fill an important gap in American property

law. It was a case that the involved judges and lawyers decided to make into “a novel

and nice question” for their own edification – hence, the elaborate treatment. This

“forced” air would be what has made it feel so odd to so many people for so long. As a

key case in the “common law” of the law school curriculum (cases that are core cases in

law school but are of little or no relevance in most lawyers’ practices), its treatment in

Kent’s hands reveals that its civilian pedigree goes deeper than the reported case reveals

and its scholarly dimensions go to the root of why it got to be a known case. It was

created to raise and then settle “a novel and nice question.”

315 Pierson v. Post, 3 Cai. R. 175, 177 (N.Y. Sup. Ct. 1805) (Tompkins J.) (“The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question”). 316 See Berger, supra note 4, for the argument that American lawyers have loved Pierson v. Post for its presentation of property as wide open for the taking. 87

Case-in-context studies start with the premise that there is much to learn in

studying how a legal culture strays from the real story – involving real people making

difficult to understand decisions – to its skeletonized artifacts. What do things get pared

down to? What gets built back into the retelling? As Geertz put it in his famous

discussion of ethnography and “thick description,” “[c]ultural analysis is (or should be)

guessing at meanings, assessing the guesses, and drawing explanatory conclusions from the better guesses.”317 There are better and worse guesses. There are also grounded and

ungrounded ones. I obviously hope what I have offered are the former rather than the

latter. However, I take seriously Geertz’s point that such analysis is “intrinsically

incomplete” – that is why it is turtles all the way down.318

Geertz used the following colonial version of the story:

There is an Indian story – at least I heard it as an Indian story – about an Englishman who, having been told that the world rested on a platform which rested on the back of an elephant which rested in turn on the back of a turtle, asked (perhaps he was an ethnographer; it is the way they behave), what did the turtle rest on? Another turtle. And that turtle? “Ah, Sahib, after that it is turtles all the way down.”319

In your digging and all its accompanying interpretation you might even manage to

“intensify the suspicion, both your own and that of others, that you are not quite getting it

right.”320

This problem is an acute one with Pierson v. Post. It seems as if those who touch

the case, advertently or inadvertently, become characters in the story, effecting a cultural translation that obscures important dimensions of what was really going on. The most

317 Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF CULTURES 3, 20 (1973). 318 Id. at 29. 319 Id. at 28-29. 320 Id. at 29. 88

fully demonstrated example of this phenomenon in this article is the theory that the

lawyers and judges involved in the case took an issue that no longer had much to do with

the parties and turned it into an opportunity for a learned and scholarly disputation. That

hijacking occurred either in Albany or Riverhead in 1805. Sometime between 1824 and

1827, Kent used the case to generate the scholarly treatise-translation of an Americanized

common law packaged in a particularly influential iteration.321 In 1881, when Oliver

Wendell Holmes Jr. discussed the case, he was really referring to how it was processed in

Kent’s hands, in what would itself become one of the most influential treatments of

possession in American property law.322 Then there is the tall tale retelling by Judge

Hedges in 1895 of which probably the less said the better.

The lesson seems to be to distrust the translation and ask about the translator’s

motive. A motiveless translator will not be on offer; however, by asking the question –

what is their motive – one will get a better sense of where it is coming from, what is

being emphasized and what is being downplayed, what is being left out and what is not

being omitted. My own interest is in Kent and how a fading Federalist in his time and

place would act within the institutional forms available to him given what he must have

perceived as radically reduced possibilities of influencing social and political life.323 I

take the general meta-lesson of the exercise to be one about the way in which we should

understand common law cases as they are canonized in our casebooks. Anyone who uses

them needs to be aware of their status as texts with meanings that change over time,

depending on who reads them. While they can be treated as transparent texts that

321 See, e.g., Philip Girard, Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and his Epitome of the Laws of Nova-Scotia, 11 LAW & HIST. REV. 101, 132 n.95 (1993) (on an 1847 letter from a Nova Scotia judge on how widely the Commentaries were used there). 322 See infra pp. 43-45. 323 See Fernandez, Spreading the Word, supra note 11. 89

generate one simple meaning, like any other historical artifact, they are complex and

capable of generating many meanings depending on who is reading them with what

interests in mind.

Sometimes the “turtles all the way down” story is told with an English scientist

playing the role of the knowledgeable native and an old woman acting as the quick-witted

interrogator. The phrase can be used as shorthand for an infinite regress problem

(otherwise know as “a turtle problem”), or a ridiculous theory that when compared with

others might not turn out to be turn out to be so ridiculous (“Only time will tell”), or in

Geertz’s sense that the story expresses a profound truth about our inability to get to the

bottom of things.324 An old chestnut like Pierson v. Post is not that different. It can be

used as shorthand for a legal rule or principle, a demonstration of different styles of

judicial reasoning, or as an example of Americanized common law produced by a

pedagogical exercise. Geertz is right that the law will not always or even often care

about what “the whole story” was and it is not clear that even unlimited investigation

would tell us what really happened as some other possibilities compatible with the

evidence presented here indicates.

Perhaps given the intense treatment Kent lavished on this case (the annotations

and later use in the Commentaries) and Tompkins’s failure to produce any other case

remotely like Pierson v. Post, Kent might actually have been the ghost writer of the

majority opinion.325 That would make the case a demonstration of Kent versus

324 For the scientist version of this story and a list of those who are often slotted into its retelling, as well as the three different explanations of its meaning given here, see http://en.wikipedia.org/wiki/Turtles_all_the _way_down. 325 I think this is unlikely because Tompkins’s decision is not very well done. It is too passive in its reliance on Sanford’s arguments and not really all that scholarly or learned. However, Watson would probably argue that Kent is apt to perform at just such a low standard when he used Roman and civil law authorities. It was just that hardly anyone could evaluate what was produced in this mode. See Watson, 90

Livingston acting in a clichéd pattern relished in exaggerated form here but ultimately

belied by their more regular back and forth debate. Livingston simply flipped a few

pages of Pufendorf and grabbed the first thing he saw about different sized dogs,

combining it with a contrasting “policy perspective” – seeing it as his job in the confines

of the exercise to provide a dissenting answer to the moot court problem. On this

interpretation, Kent’s annotations would be self corrections done at a later date rather

than corrections of the test he set. One could imagine Kent telling Livingston about the

passage on Barbeyrac’s criticism of Pufendorf in Pothier as he came upon it sometime

after 1810 in the property treatise and the two laughing looking back on the affair,

agreeing that given the fact that not everyone involved could read French they did the

right thing in keeping it out of the debate.326

If some version of this is correct, it is worth asking ourselves why we find this

slightly shocking, if we do.327 I think the answer partly lies in the way that we tend to

think of judges occupying a lofty disinterested place and how we think of the good

casebook cases as the inadvertent product of a trans-historically seriously somber

process. We imagine that the casebook compiler has come along and rescued one of

these dusty jewels that would otherwise have languished (perhaps not undeservedly) in obscurity. However, she blows the dirt off and lo and behold, there is a gem, perhaps for

Chancellor Kent’s Use of Foreign Law, supra note 94. Probably the most compelling reason, however, for thinking that it was not Kent was that he would have seen little reason to disguise himself in this way. See also infra pp. 94-95 on the way the annotations suggest Kent would have written the case. 326 On the question of language, it is worth noting that Livingston could speak French and Spanish. See Article 9, Book Review, supra note 253, at 189. Kent could read French but not Dutch or German. Langbein, supra note 6, at 569 n.111. 327 Goodrich, supra note 40, at 51 (“[t]he satirical is appealing and shocking because it transgresses the received tone of legal utterances”), (although there are exceptions like revels at the Inns of Court or satirical mock trials, “within the terms of the law it is extremely rare to encounter satirical assessments or criticisms of law and lawyers … Law is determined in advance to be too serious, too solemn, too impenetrable and too heavy for the levity of satire … [W]hat justifies the exclusion of humor and the leadenness of wit?”). 91

the pithy way it frames a rule, hopefully set against some engaging but importantly not

too complicated facts. If she is lucky, there might be a dissent setting out the contrary

policy perspective. We tend to think of this process as something that accidentally

happens, at least with old private law cases. Public law cases, “test cases,” are arranged

all the time, although even these, it must be said, are “set up” by the lawyers, not the

judges, who are not supposed to be in the frog ditch in this way. Usually we think the

case happened to occur (a dispute arose between two parties who cared enough about it to

litigate), the judges had little to do with it beyond agreeing to hear it (if it was not as of

right), it was luckily reported, and was then later tripped over by the casebook compiler.

Pierson v. Post violates those norms in the sense that if some version of the theory on offer here is correct, it is as if it was “made to order” for a casebook collection.

Contemporary evidence suggests that there was an intense educational component

to institutions like Kent’s New York Supreme Court, its personnel and its reports, that

looks very foreign from the perspective of a hyper professionalized present. Elite early

American lawyers who rarely attended formal law schools learned their law in large part by digesting scholarly law texts in the Roman and civil law traditions, and continued their education through participation in clubs that loved to turn their attention to knotty questions like the one in Pierson v. Post.328 Such scholar/students – seeking to prove

themselves to their elders and persuade them they ought to be looked on with favor and

not lumped in with “lowly” pettifoggers who should not be provided with preferment –

would be alive to an opportunity like this presenting itself in a real case. Here they could

328 Coquillette, Justinian in Braintree, supra note 69, at 399 n.7 (“One attraction of civilian learning to Adams and other Americans may have been the systematic, digestible civilian treatises. This must have been particularly attractive, given the absence of American law schools, the limited usefulness of apprenticeships, and the relative scarcity of readable common law treatises and law reports”). 92

put their talents and learning on display. So, for instance, Coquillette wrote about

Adams’s whaling case: “Never was a dead whale given such posthumous dignity. He

was fought over by seventy-four eyewitnesses, two signers of the Declaration of

Independence – one a future president of the United States – and the great James

Otis!”329

We would have to be asleep to not think this was a phenomenon in need of an

explanation. Given the importance of whaling in Massachusetts, there is a reason why

the case would be hotly contested and eminent council would be engaged. That is quite

unlike the minor significance of foxes to the economy in New York State. However, it is

important to see what happened to Adams whaling case. He was ultimately unable to use

his carefully researched Roman and civil law authorities because the parties decided to

arbitrate.330 In other words, the case ended without creating a precedent. One way of

seeing what Kent was doing in Pierson v. Post – whether he pushed Tompkins to write

the majority decision, wrote it himself, or someone else under his influence thought it

would be amusing/edifying to hash the problem out – was rebelling against the law being held captive to chance and the will of the parties in this way.

There was no time to sit around waiting hundreds of years for the facts to come up

in front of a judge who may or may not (probably would not) have the background to

recognize its significance and then be subject to the decisions of parties who may or may

not (probably would not) decide to litigate to the end. Kent himself would only be on the

bench for so long and New York was competing with other Northeastern states in terms

of generating published reports and scholarly work that would provide authoritative

329 Id. at 384. 330 Id. at 385 (“Regrettably, no one seems to have recorded who won. There is only Paine’s cryptic note on 27 October 1769 ‘Whale case finished.’”), 385 n.6 (“The parties agreed to arbitration in April, 1769”). 93

treatments of what the commercial law common to the states would be. This project of laying the groundwork of a conceptual treatment of property law – though not having immediate commercial applicability (at least in the case of foxes) – had indirect effect (as a more important area of so-called “fugitive resources” like whaling or fishing indicated).331 The jurisdiction with the most persuasive, comprehensive treatment would

be best poised to vie to be the uniform standard – the one new states would emulate in

their common law and if there was to be a “federal common law” to be the model for

it.332 This process was too important to allow its development to be dependent on the

actual vicissitudes of the common law and the litigation process. If this is shocking – and

I do think it is – we might note that at least Kent decided to respect the outcome of the

forensic debate (and indirectly the adversarial process), despite the fact that he might well

have agreed with Pothier and Livingston on the way the case should actually have gone.

The ultimate question I suppose is just how far Kent and those under his influence

would go in service of his goals, both creating the pedagogical exercise and generating a

precedent that was important to a scholarly treatment of property law (i.e. recreating the

state of nature scenario that would invite the civilian natural law treatment). We know

there was a whale in Adams’s case.333 Was there ever a fox in Pierson v. Post? While

the details of Hedges account seem suspect, he evidently thought there was something

there, which at least involved real people, some of whom he knew. There are technical

details in the decision that indicate there is some document from whence it came – and

331 See “It’s Not About the Fox; Sometimes, Its About the Whale,” blog entry by Carl C. Christensen at http://lawprofessors.typepad.com/property/2006/week 35/index.html (August 28, 2006). 332 But see NEWMYER, supra note 255, at 332-43 (on the relative unimportance of Swift v. Tyson – where Story announced the existence of a “federal common law” – at the time it was decided). 333 See Coquillette, Justinian in Braintree, supra note 69, at 385 (“Lengthy depositions [from the seventy- four eyewitnesses] survive”). 94

presumably some dispute it was attached to.334 Probably the most compelling reason for thinking that, like Adams in the whale case, Kent or Sanford recognized the potential in

the facts for it to be a vehicle for scholarly learning is that Kent would not have been

motivated to fabricate it from whole cloth. The students did not, so far as we know, need

to have a debate. Kent himself could have done without a case on the specific point

about wild animals. There are plenty of places in the Commentaries where Kent simply

cited to Pothier on a given point, what he presumably would have done on the point about wild animals and wasteland had there never been a Pierson v. Post.335 In other words,

Kent’s treatment of property did not rise or fall on this one issue and as convenient and

convincing as it was to have the case – massaged so that it was framed in just the right

way – it seems unlikely that there would have been enough of an incentive to completely make it up.336

Would Kent have specifically considered the hunt in the Commentaries without

Pierson v. Post? My sense is he would have known that he needed to say something about the problem of wild animals for American “wasteland” given the way that

Blackstone flagged this in the opening sections of his introduction to property. If Kent was going to provide an equivalent of Blackstone’s Commentaries for America and specifically a discussion of property that would compare favorably with the civil law classics, this issue of unowned animals could not be passed over in silence. A contemporary rival for the title “American Blackstone,” Zephaniah Swift, did include the

334 See, e.g., Pierson v. Post, 3 Cai. R. 175, 179 (N.Y. Sup. Ct. 1805) (Livingston J. refers to the “six exceptions, taken to the proceedings below, all [of which] are abandoned except the third”). 335 See infra note 138 (listing examples). 336 Things like the state of Pierson’s knowledge with respect to Post’s hunt and where the fox was actually caught – it was “started” on wasteland but where did Pierson actually club it – seem like they might have been more “massagable” if the parties let the lawyers and judges “have” their case given the “even if true” framing. 95

point in his survey of the law.337 Indeed, all the great works seemed to include some

version of the following rhythm: there is property that moves and that which does not move; of the movable kind, ownership can be absolute or qualified; of the qualified

movable property, one acquires ownership by possession; what does that mean in the case

of wild animals? If Kent’s work was going to be great, it would also have to go through

these motions. However, the “reading” of his annotations provided above indicates that

Kent would probably have discussed the problem differently in the Commentaries than he

did, specifically that he would have sided with Pothier.

If we can trust the annotations, Kent would have started with Pufendorf’s

ambiguous definition of “first occupant” (“he who lays hold on such a thing before

others, or gets the start of them in putting in his Claim to it”).338 Then he would have

reproduced Barbeyrac’s criticism of that (actual taking was not always absolutely

necessary so long the thing is “within Reach of taking what he declares his Design to

feixe on”).339 Next he would have pointed out that Justinian thought actual taking was

required so that escape was no longer possible (Digest and Institutes). The content of the

Pothier annotation indicates that he would have noted that Pothier agreed that the “[t]he

animal must be brought within the Power of the Pursuer”; however, its placement

strongly indicates that he would also have pointed out that Pothier thought Barbeyrac was

correct to say that custom and “civilized sentiment” meant that power in that case could

mean “about to take.” In Pierson v. Post that would mean that he who (rudely) seizes

337 See 1 ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 345- 46 (1795-96). See also 1 ZEPHANIAH SWIFT, A DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT 168-69 (1822). The first work was too early to mention Pierson v. Post. The second was not but did not include the case. It was added to a later edition of the work, where, as in Kent’s work, it was coupled with Buster v. Newkirk. See 1 HENRY DUTTON, A REVISION OF SWIFT’S DIGEST OF THE LAWS OF CONNECTICUT: ASSISTED BY N.A. COWDREY 174 (rev’d ed. 1851). 338 PUFENDORF, supra note 79, at 4.6.2, 386 [emphasis added]. 339 Id. at 4.6.2 n.2, 386. 96

(Pierson) whilst another is still in pursuit (Post) should not have been allowed to take.

That would mean siding with Livingston and custom rather than Tompkins’s quick grab

for what would best avoid dispute.

We often hear statements about how Federalist judges like Kent and Story were engaged in the process of making a uniform American common law. Part of the process of which was packaging it in a compelling, authoritative, and attractive way. As one of the fading Federalist law teacher/scholar judges, whose political power was dissolving all around him, Kent used the forms he could to exert what influence he could. Whether specific formulations of common law rules (such as rules generated by cases like Pierson

v. Post) did in fact have any appreciable effect on the concerns he and other elite

members of the bar had about resisting democracy and protecting some forms of property

over others is another (big) question, which the analysis here sheds little light on. What

is important, however, is that he and others (e.g. those who expressed gratitude about

things like the use of the Commentaries to ward off codification) thought their work

served those ends and acted as if it did. Key to this role was the ability to speak in a

convincing way, which at least for Kent meant drawing on the Roman and civil law.

That was part of what Pierson v. Post was about – not which way the rule went.

Pierson v. Post is a small window on the kind of strategies that Federalists judges

like Kent used, wielding what power they could through their didactic law judging,

teaching, and writing. Those involved in other more obviously prize-winning activities

of the time – party politics and land speculation – probably did not think that the exercise

of this kind of influence was worth the bother. The investment in learning demanded by

Kent’s version of it would be enough to put most people off. The required linguistic 97

knowledge alone was daunting. However, what do now know of Sanford’s

“extravagantly expensive” house or Colden’s “Zeal for Stock Speculations”? We know

Kent’s Commentaries. We certainly know Pierson v. Post. In a sense then, if notoriety is

the measure, Kent won in what was albeit a limited sphere. However, the specific

notoriety of the case has more to do with something Kent did not have a hand in

engineering, namely the case method and the casebook. The argument here is that if the pushy pedagogy theory is correct – Pierson v. Post was a case that had its roots in a

pedagogical exercise, put on for scholarly motives – then its place in the common law of

the law school curriculum has fit more perfectly than we ever knew.