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.