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FORUM: COMMENT
Papyrology and 3 Caines 175
CHARLES DONAHUE, JR.
| Those who work with the papyri or stone inscriptions from the ancient world frequently are faced with incomplete texts. Papyrologists or epigraphers will attempt to fill in the missing parts of the text, relying on their knowledge of what similar documents say. Sometimes a later find will provide a missing piece. Experience with such finds has been that an expert reconstruction normally will get the basic sense of the document right, but rarely gets the exact wording right when anything more than a few letters needs to be filled in. |
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I have been teaching Pierson v. Post to first-year property students for forty years. Since I use the case to introduce law students to what the litigation process is all about, I have—despite the fact that I assumed that the record had been lost—filled in details about the litigation process in the case on the basis of George Caines's (and the justices') cryptic summary. Indeed, one of the points of the exercise is how much one can learn about the litigation process from such cryptic summaries. |
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We need no longer guess. With amazing assiduity—and, it must be admitted, some good luck—Angela Fernandez has found the record, transcribed it, and published it. We are, of course, all in her debt. While we are congratulating Professor Fernandez, let us take this opportunity to see how well this particular papyrologist/epigrapher did at filling in the gaps. |
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As Caines has it: "This was an action of trespass on the case commenced in a justice's court, by the present defendant against the now plaintiff.... A verdict having been rendered for the plaintiff below, the defendant there sued out a certiorari...."1 The majority opinion of Tompkins, J., confirms: "This cause comes before us on a return to a certiorari directed to one of the justices of Queens county."2 The record confirms that the action was indeed one of trespass on the case, that it was commenced in a court of a justice of the peace, that the justice empanelled a jury which decided for the plaintiff ("verdict" cannot mean anything else), and that the Supreme Court issued a writ of certiorari to bring the case before it. Indeed, the wording of the writ is almost the same (with the regal references transformed) as the sample English writ printed in Donahue, Kauper, and Martin's property casebook.3 The only thing that is puzzling is why does Tompkins say that the justice was one of Queens county, when we know from the record that the justice was of Suffolk county and that the events took place there? |
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We have known since 1916 that the events in question took place in the Hamptons,4 which are located on the eastern end of Long Island, firmly in what is now Suffolk County. Occasionally, a student familiar with New York geography will ask why a JP for Queens county heard the case. My answer (fortunately never printed) was that the county boundaries have changed since 1805. They have, but not that much. What is now Nassau county was part of Queens county until the 1890s, but the Hamptons have been in Suffolk county since the New York counties were first formed in 1683.5 Now that we have the record, we can firmly assert that Tompkins got it wrong. Anyone familiar with the hash that case reports frequently make of the legally irrelevant facts that appear in the record of the case should have known better. Indeed, one might use this slip to illustrate Jerome Frank's point that the "facts" in appellate cases are frequently unrecognizable to the parties to the case.6 |
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My "take" on this case has long been that Post's lawyer, Colden (whom we suspected, and now know, was Cadwallader David Colden, a future mayor of New York and U.S. congressman)7 botched the job for his client Lodowick Post. In order to make this point one must go back to the events that may or may not have taken place on a beach. Whether one wishes to dramatize the events by riding to the hounds on a chair on top of a desk, making use of a stuffed fox (a gift of a former property class) is, I suppose, a matter of taste. (It is frequently the only thing that the students remember about the property course.) The point, however, is that Post was very angry, and he (and perhaps his father, who was still alive in 1802)8 went to see a lawyer. Now how do I know this? Because even in 1802 only a lawyer could have produced the following piece of English prose: "did upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox."9 |
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The record confirms, quite dramatically, that Post's plaint was professionally drafted.10 The problem is that the record gives no evidence that Post was represented by counsel at this point; indeed, in this period counsel could not appear on behalf of clients before a justice of the peace.11 While it is possible, as Professor Fernandez tentatively suggests,12 that Justice Fordham converted Post's more informal oral complaint into the language we find here, I think it unlikely. The elaboration of the plaint has all the hallmarks of a document carefully drafted by a lawyer who was firmly on Post's side. Counsel could not appear before justices of the peace, but the rule did not require—indeed it is hard to imagine how it could have required—that litigants before the justices of the peace not consult counsel before they went to court. I suspect that Post appeared in the justice's court carrying his counsel's plaint with him. |
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Now why is this important? Because the theory of the action as brought before the justice, as many writers have pointed out, is emphatically not what was eventually argued before the Supreme Court.13 The gist of the complaint was not that Pierson took Post's fox; the gist of the complaint was that Pierson maliciously interfered with the hunt. Whether such behavior would have been actionable under English common law in this period is controversial. The closest case that has been found is Keeble v. Hickeringill,14 and it has been argued that Keeble would not apply to situations where the hunting was being done for sport.15 Be that as it may be, grounding the complaint on malicious interference with the hunt stood a much better chance of producing a winning case for Post than grounding it on Post's ownership of the fox. Indeed, if the gist of the action were Post's possession (and hence ownership) of the fox, the wrong form of action was used. It should have been trespass, not trespass on the case. |
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Now who was the lawyer who saw this possibly winning line of argument for Post? We don't know. By the time our record was compiled, Colden was representing Post. But it seems unlikely that Colden was representing Post from the beginning. Colden was a fancy New York City lawyer. We now know, however, that there were local lawyers on the eastern end of Long Island in this period. Nathan Sanford, Pierson's lawyer, was one of them. |
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How did it come about that the case got argued about an issue that, it would seem, the plaintiff's lawyer had carefully avoided when the case was tried in the justice's court? Professor Fernandez sees the hand of soon-to-be Chief Justice Kent. She may be right. Kent's notes on the case, which Professor Fernandez has brought to light elsewhere, certainly show that later he had considerable interest in the case.16 My own view, formed by playing out the scenario before numerous classes, focuses more on the lawyers. I remain of the view that we should focus on the lawyers, though I'm perfectly willing to admit that the court would have had to go along with it, and it is certainly possible that Kent played more of a role than either the record or the report suggests. |
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My scenario begins with a casual remark at the beginning of Livingston, J.'s dissenting opinion: "Of six exceptions, taken to the proceedings below, all are abandoned except the third...."17 We can, perhaps, imagine a hearing, probably quite informal and conducted by only one of the justices (this may be where Kent got into the picture). The purpose of the hearing was to limit the issues on which argument would be heard. I had imagined a bill of errors that contained five picky and technical errors, and one, in modern terms, that "the complaint did not state a cause of action on which relief can be granted." (This one we now know was the third assigned error.) The justice batted Sanford down on five of his issues: "You really don't expect us, Mr. Sanford, do you, to reverse this case because the venire did not contain the word 'men' when it did contain the word 'freeholders'?"18 And Sanford, rather sheepishly, said: "Well, I suppose not." The justice then said to Colden: "Do you agree, Mr. Colden, that that issue should be eliminated from the case?" And Colden, looking like the cat that ate the canary, said "Yes, I do, your honor." And so it goes through five errors, each one batted down by the justice, Sanford agreeing to drop it, and Colden, of course, raising no objection. "Don't you agree, Mr. Sanford, that the real issue in this case is whether the declaration states a cause of action on which relief can be granted?" "Yes, I do, your honor." "Do you agree, Mr. Colden?" "Yes, I do, your honor." Now comes the key moment: "Do you agree, Mr. Sanford, that the real issue in this case is 'whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox as will sustain an action against Pierson for killing and taking him away?'"19 "Yes, I do, your honor." "Do you agree, Mr. Colden?" That's where Colden made his mistake. Having said "Yes, I do, your honor" six times, this time he should have said: "No, I don't, your honor. Our view of the case is that Mr. Sanford's client committed an actionable wrong when he maliciously interfered with the hunt, and we must assume that the jury found malicious interference, because it found for my client on this complaint." (And we now know that the original plaint specifically charged malice.) |
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Now, of course, the record does not contain a transcript of this hearing. That's not the kind of thing that such records contain. What it does contain is the six assignments of error. One of them, the sixth, is even more general than the third and may be assumed to be incorporated in it. Three of them, Professor Fernandez agrees, are the kind of picky points that might well be dismissed on the ground of harmless error, or, to put it more colloquially, "we've got to cut the JP's some slack."20 One of them, however, seems serious. It does not look as if Pierson was served until the day of the trial, and that's a statutory violation. Someone, however, was served, or at least had the summons read in his presence, in a timely fashion. Professor Fernandez's transcript of the endorsement of the summons has the constable saying that he served "the within-named Jesey Larson."21 Now, there's no "Jesey Larson" who is "within-named." The person named in the summons is "Jesse Peirson" (the way the defendant's name is spelled throughout the record). One can certainly imagine this being called harmless error, particularly if Thomas Harris, the constable, was willing to swear that he did serve Pierson on 22 December, eight days before the trial, or if Pierson was unwilling to swear that he was not so served. |
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Now why was Sanford willing to give up five of the six assigned errors? Could it be because he had done his homework and knew that he had a winning case if it were argued on the question whether Post had a property interest in the fox? Certainly, by the time that he came to argue the case, as Caines's summary of his argument shows,22 he had an impressive array of authorities on his side. The country lawyer from the east end of Long Island did a pretty good job for his client.23 |
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Charles Donahue, Jr., is Paul A. Freund Professor of Law at the Harvard Law School <jreader@law.harvard.edu>.
Notes
1. Pierson v. Post, 3 Caines 175 (N.Y. Sup. Ct. 1805).
2. Ibid. at 177.
3. Charles Donahue, Thomas Kauper, and Peter Martin, Cases and Materials on Property, 3rd ed. (St. Paul: West Publishing, 1993), 8.
4. James Truslow Adams, Memorials of Old Bridgehampton (Bridgehampton, 1916; repr., Port Washington, N.Y.: I. J. Friedman, 1962), 166, 319, 364 (relying on an account by H. P. Hedges, published in 1895 in a local newspaper).
5. http://en.wikipedia.org/wiki/Nassau_County,_New_York; http://en.wikipedia.org/wiki/Suffolk_County,_New_York; (last visited 4/11/08).
6. Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949; repr. 1973), 74–77.
7. http://en.wikipedia.org/wiki/Cadwallader_D._Colden (last visited, 4/11/08).
8. He died in October, 1803. See Bethany Berger, "It's Not About the Fox: The Untold History of Pierson v. Post," Duke Law Journal 55 (2006): 1135. Professor Berger has convinced me that my speculation that the Posts were "probably of Dutch descent" is almost certainly wrong. What divided the Piersons and the Posts was much more complicated than that, but it "was not about the fox."
9. 3 Caines, at 175.
10. It is perhaps not quite technically a "declaration," as Caines calls it (a document that normally implies a preceding bill of Middlesex and/or latitat), but it is close enough.
11. Angela Fernandez, "The Lost Record of Pierson v. Post," Law and History Review 27 (2009): 165.
12. Ibid., 168.
13. Ibid, 167.
14. Keeble v. Hickeringill, 11 East 574, 103 Eng.Rep. 1127 (K.B. 1707). 11 East was not published until 1815, and previous reports are unreliable. This fact may have affected both the advocacy and the result in Pierson. The majority opinion, relying on older reports, distinguishes Keeble on grounds that are not viable if we rely on East's report (which is said to have been taken from Holt's own manuscript). 3 Caines, at 179.
15. See A. W. B. Simpson, "The Timeless Principles of the Common Law: Keeble v. Hickeringill (1707)," in Leading Cases in the Common Law (Oxford: Clarendon Press, 1995), 64. For an argument distinguishing Keeble on policy grounds, see James E. Krier, "Capture and Counteraction: Self-Help by Environmental Zealots," University of Richmond Law Review 30 (1996): 1045–52.
16. Angela Fernandez, "The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent," http://ssrn.com/abstract=984163 (last visited, 4/11/08).
17. 3 Caines, at 180.
18. This is drawn from the fourth assignment of error in the record. Transcript, pp. 12–13. The one that I had imagined was that the justice held court in his living room rather than in a courthouse. The record shows that the justice did hold court in someone's living room (not his own), but Sanford did not assign this as error.
19. 3 Caines, at 177.
20. Fernandez, "The Lost Record of Pierson v. Post," 177.
21. Transcript, p. 9.
22. 3 Caines, at 175–76.
23. Sanford was no country bumpkin. He became the U.S. District Attorney for New York in 1803. Berger, "It's Not About the Fox," at 1134. But, in a way, they were all country bumpkins. If Charles Donahue, "Noodt, Titius, and the Natural Law School," in Satura Roberto Feenstra, ed. J. A. (Hans) Ankum et al. (Fribourg: Éditions universitaires, 1985), 609, has it right, the eighteenth-century natural-law writers all sided with Barbeyrac (and Locke), and, hence, with Post. As a piece of natural-law jurisprudence, Pierson v. Post is more than a hundred years out of date.
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