Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York...

Pierson v. Post: A Great Debate,James Kent, and the Project ofBuilding a Learned Law for NewYork State

Angela Fernandez

Pierson v. Post (1805) has long puzzled legal teachers and scholars. Thisarticle argues that the appellate report was the product of the intellectualinterests (and schooling) of the lawyers and judges involved in the case. Theyconverted a minor dispute about a fox into a major argument in order to arguefrom Roman and other civil law sources on how to establish possession in wildanimals, effectively crafting an opportunity to create new law for New YorkState. This article explores the possibility that the mastermind behind this casewas the chief justice of the court at the time, James Kent. The question ofKent’s involvement in 1805 remains elusive. However, the article uses anno-tations he made on his copy of the case and discussion of Pierson v. Post in hisfamous Commentaries to demonstrate the nature of his later interest and toexplore the project of building a learned law for New York State.

INTRODUCTION

Pierson v. Post (1805) has long been a puzzling decision to legal scholars.Why would an important court like the New York Supreme Court lavish the

Angela Fernandez is assistant professor at the Faculty of Law, University of Toronto([email protected]). Earlier versions of this article were presented at Law andSociety in Baltimore, MD (July 2006); the Legal History Group, University of Toronto (March2006, January 2007); and the Stanford-Yale Junior Faculty Forum in Palo Alto, CA (May 2007).Junior Faculty forum funds were provided by that conference. All other research and travelsupport came from the University of Toronto; specifically, a Connaught Start-Up Award, SIGgrants, and a Summer Student Assistantship Grant, which funded the salary of my researchassistant, Alex Zavaglia. Additional funding was provided by the Office of the Dean, MayoMoran, University of Toronto. Thanks to Helen Weltin, New York State Library, Albany, NY,and Whitney Bagnell, Columbia University, New York. Acknowledgment is also owed toStephen Waddams, Darlene Johnston, Andrea McDowell, Bethany Berger, Debora Threedy,Robert Gordon, Dirk Hartog, Blaine Baker, Lisa Austin, Denise Réaume, Karen Knop, MichaelMarrus, Philip Girard, Donald Roper, Henry Smith, Mark Kelman, and Jed Shugerman.

Law & Social InquiryVolume 34, Issue 2, 301–336, Spring 2009

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kind of attention it did on what was essentially a minor neighborhood disputeover a fox pelt, which a jury decided was worth 75 cents (Fernandez, forth-coming)? Why would eminent (and presumably expensive) lawyers beinvolved in such a case?

This article argues that the elaborate treatment of Pierson is best under-stood as the product of the intellectual interests (and schooling) of thelawyers and judges involved. Although scholars have debated whether thecase involves an issue properly conceptualized as property law or tort law,that doctrinal question was of little interest to the lawyers and judges. Norwere they interested in anything specific to the law as applied to foxes. Theywanted a great debate on the general issue of how to establish possession ofwild animals. This would provide them with an exercise in the use of Romanand civil law authorities important in the period, as well as establish anuncertain point of law for New York State.

Much of the mystery surrounding Pierson v. Post has been compoundedby the absence of a written record of the lower court proceedings, untilrecently presumed lost. The judgment roll has, however, been brought tolight (Fernandez, forthcoming). The newly discovered record confirms thatgreater ambitions were attached to the case at the appellate level thanwould have been required in order to dispose of it with the same result;namely, a ruling in favor of the interloper Jesse Pierson, against the originalhunter of the fox, Lodowick Post. We always knew that Pierson’s lawyer,Nathan Sanford, alleged six counts of error in the original proceedingsbefore the justice of the peace (Pierson v. Post 1805, 180). We now knowthat at least some of these allegations, most of which were of a proceduralnature, were fairly serious and could have led to a straightforward reversalfor Pierson in the case (Fernandez, forthcoming). However, the New YorkSupreme Court did not want to handle the case in this way. Indeed, wenow know that they took over two and a half years to render judgment—the original case was tried by jury on December 30, 1802, and the NewYork Supreme Court judgment was given on September 10, 1805 (Fernan-dez, forthcoming).

On the issue of whether what was actually involved in the case wasan issue of tort law, Charles Donahue (1986) wrote: “It is all verystrange . . . the point of Post’s suit against Pierson is not that Pierson tookPost’s fox. The point is that Pierson interfered with the hunt” (48).However, it is difficult to see how Post could have succeeded on this tort-like claim. Common law has traditionally refused to protect “things of merepleasure and delight” (Simpson 1995, 64). Andrea McDowell (2007) hasargued that even though “the harm Post suffered was malicious interferencewith the hunt . . . he had to shoe-horn the facts into a property claimbecause of common law constraints” (738). We now know from the recordthat Pierson’s claim was framed so that it could be decided in either prop-erty or tort (Fernandez, forthcoming). However, a holding for Pierson on

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the tort point would have amounted to no more than straightforwardconfirmation of trite law; it would not generate an innovative treatment ofthe classic issue of how one establishes possession and ownership of wildanimals.

The property law question also could have been handled in a simple andstraightforward way. As McDowell (2007) has explained, foxes had beentraditionally seen under the common law as vermin (746). “Foxes were ananomaly within the genre of ferae naturae. Far from being potential property,foxes and other vermin were legally classified as nuisances, the killing ofwhich was a service to the public” (748).1 If it was impossible to have aproperty interest in vermin, Post’s claim on the property law point shouldnever have even got off the ground.2 My suggestion is that these simplermeans of disposing of the case were deliberately avoided and that the case washeard in pursuit of other agendas. The judges and lawyers were not interestedin the law specific to foxes—what they were after was a debate on the issue ofthe ownership of wild animals.

The New York Supreme Court certainly did not need to taketwo and a half years to decide this case. They could have easily (andquickly) found for Pierson, given the abundance of procedural error, theweakness of the tort claim, or on the narrow property point that foxes werevermin and no one had a property interest in them. The judges and lawyersinvolved in the case were evidently keen to take up the larger issue ofwild animals on wasteland, no matter that it was going to take quite sometime to get to the appeal and deal with it in the elaborate way that theydesired.

Most of the judges were probably convinced that ultimately reversing forerror was the correct way to dispose of the case, given all the procedural andsubstantive problems in finding for Post. The reasoning in the reportedappellate decision, however, as opposed to the bottom-line disposition con-tained in the judgment roll, elevated a squabble over dead quarry to a level ofgreater interest and significance than simply resolving a particular disputeabout one fox or one hunt, or even foxhunting generally. Someone involvedin the case saw in it the potential for a great debate and as a vehicle for anAmerican treatment of the general property law question—long debated inthe Old World—of how to establish possession over wild animals on land thatbelonged to no one.

1. This was not the social reality in England, as McDowell (2007) went on explain, wherefoxhunting had long been a valued activity (748). However, it was the law there, at least until1808 (758).

2. However, it must be said that the question of whether foxes were vermin or valuable tothe sport of foxhunting in America would have made it difficult to decide the case in that way.“As in England . . . foxhunting was pest control to some and an elite sport to others” (McDowell2007, 762).

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I. THE APPELLATE REPORT

The facts of the famous New York state appellate foxhunting case werethese. Lodowick Post was hunting with “dogs and hounds” (Pierson v. Post1805, 175) on a Long Island beach when a schoolteacher, Jesse Pierson,swooped in and killed the fox that Post had been pursuing. The legal questionwas whether the act of pursuit had given Post “an exclusive right whilst. . . [the wild animal] is followed” (176). The declaration stated that “Pierson,well knowing the fox was so hunted and pursued, did in the sight of Post, toprevent his catching the same, kill and carry it off” (175). Post’s lawyerclaimed that Post’s pursuit was “all the possession the nature of the subjectadmits; it declares the intention of acquiring dominion, and is as much to berespected as manucaption itself” (176–77). Pierson’s lawyer claimed that thefox 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.

Justice Daniel Tompkins found for Pierson, repeating the various state-ments Pierson’s lawyer cited from Justinian to support the argument thatcapture was required to establish possession in wild animals, ferae naturae.Tompkins wrote that it and other supporting authorities were “decisive toshew, that mere pursuit, gave Post no legal right to the fox, but that hebecame the property of Pierson, who intercepted and killed him” (178). Thereasoning continued, “[i]t therefore only remains to inquire, whether thereare any contrary principles, or authorities, to be found in other books, whichought to induce a different decision” (178). Tompkins dealt with the primarytroublesome authority, namely Barbeyrac, who in a note on Pufendorf’s textargued that “actual bodily seizure is not, in all cases, necessary to constitutepossession of wild animals” (178). Mortal wounding by one not abandoningpursuit or capturing in nets or traps such that the animal could not escapemight be sufficient (178). However, Grotius denied this unless the woundinginvolved some corporeal possession and the nets and traps were themselves inthe power of the person claiming possession such that escape was not possible(179).3 Tompkins then went on to conclude that “the limits prescribed by thelearned authors” are best “for the sake of certainty, and preserving peace andorder in society” (179). Pierson’s behavior might have been “uncourteous orunkind,” Tompkins wrote, but “was productive of no injury or damage, forwhich a legal remedy can be applied” (179–80). Allowing Post his action, asthe court did, “would prove a fertile source of quarrels and litigation” (179).

This last part of Tompkins’s argument was strongly reminiscent ofBlackstone. Pierson’s lawyer, Nathan Sanford, did refer to Blackstone’sCommentaries (176). However, Sanford did not point specifically to the first

3. These passages in the case are in Latin. For a helpful reproduction with Englishtranslations, see Donahue, Kauper, and Martin (1993, 2–7).


chapter in Blackstone’s book on property, which contained the point aboutthe need to avoid “quarrels and litigation” (179). Indeed, “let there be nostrife” could fairly be called the theme song of Blackstone’s introductionto property law, specifically on the “innumerable tumults” that wouldarise from property held in common (Blackstone 1766, 5–6). According toBlackstone, things that must “unavoidably remain in common” due to thefact that a usufructuary right was all that could be had in them “stillbelong[ed] to the first occupant”:

Such (among others) are the elements of light, air, and water; which aman may occupy by means of his windows, his gardens, his mills, andother conveniences: such also are the generality of those animals whichare said to be ferae nature, or of a wild and untameable disposition; which anyman may seise upon and keep for his own use or pleasure. All thesethings, so long as they remain in possession, every man has a right toseise and enjoy them afterwards. (14; emphasis added)

Blackstone pointed specifically to “the forests and other waste grounds, whichwere omitted to be appropriated in the general distribution of lands,” includ-ing the “species of wild animals” on them (14; emphasis added). Blackstonemade it clear that he thought it undesirable for there to be much of this kindof property. “[D]isturbances and quarrels would frequently arise among indi-viduals, contending about the acquisition of this species of property by firstoccupancy” (15).

Blackstone purported to follow in the natural-law, reason-giving tradi-tion of Lord Coke (Hart 1956; Lucas 1963). The Commentaries were wildlypopular in the colonies. Yes, they dealt with English law; however, they tooka selective and reasoned approach to the legal rules, accepting or rejecting aparticular rule based on its suitability—in light of the rationale one couldadvance for the rule—to the new non-English environment (Nolan 1976). Ina context in which English common law was accepted or rejected on the basisof how well it fit or did not fit with local conditions, this ability to give reasonswas important.

As part of this process, lawyers in the new republic turned in no smallmeasure to civil law, since it too offered reasoning from first principles.Specifically, civil law contained relatively easy-to-access contract law andspecialized commercial law, which was less developed (although hardly non-existent) in English law (Cairns 1984). It also provided a way of thinkingabout property in absolute rather than feudal terms, important when therewas no longer a Crown. Wasteland specifically was the imaginative equiva-lent of the state of nature in seventeenth- and eighteenth-century philo-sophical treatments of property law and political order. Just as philosopherslike Hobbes or Rousseau used the state of nature to explore problems ofpolitical theory, natural law thinkers like Grotius and Pufendorf used the

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concept in their reasoning about legal problems, like who owned wildanimals.

Brockholst Livingston penned a famously satirical dissent in the case,which pointed out the importance of custom and emphasized the folly ofblindly following authority, however eminent, on the issue of establishingownership in wild animals. The question whether Post’s pursuit of the foxshould give him an interest in the animal that allowed him a claim againstPierson, Livingston wrote, “is a knotty point, and should have been submittedto the arbitration of sportsmen, without pouring over Justinian, Fleta,Bracton, Puffendorf, Locke, Barbeyrac or Blackstone” (Pierson v. Post 1805,179). Yes, Justinian may well be a better authority than Barbeyrac, but “[dowe not] have a right to establish a rule for ourselves[?]” (181). The court,Livingston suggests, should choose the best rule—the one that hunters wouldrecognize—not automatically adopt the one supported by a more weightyauthority. Hence, he wrote, “[w]hatever Justinian may have thought of thematter, it must be recollected that his code was compiled many hundred yearsago” (181).

The rule Livingston suggested was that “property in animals feraenaturae, may be acquired without bodily touch or manucaption, provided thepursuer be within reach, or have a reasonable prospect (which certainlyexisted here) of taking” (182). This rule of imminent, or reasonable, taking isadmittedly more fuzzy than the bright line rule preferred by Tompkins (hewho seizes takes) and might well have given rise to Blackstone-like worriesabout disturbances, quarrels, and tumults. However, it would seem to be aworkable rule and might well have been one that hunters would have pre-ferred. It was in fact the position the New York legislature later adopted withrespect to deer, when it declared that in Suffolk and Queens Counties “anyperson who starts and pursues such game shall be deemed in possession ofthe same, so long as he continues in fresh pursuit thereof” (Kent 1873, 350,note d).

There are many satirical and indeed even nonsensical portions ofLivingston’s dissent (McDowell 2007). There is the hyperbolic descriptionof the hunt—“at the sound of the horn, and at the peep of day [thehunter] would mount his steed, and for hours . . . pursue the windings ofthis wily quadruped” (Pierson v. Post 1805, 180–81). There is also the memo-rable description of Pierson as “a saucy intruder” (181). And even thoughLivingston had serious points to make about the importance of custom,adopting a rule that made sense for its time and place, and offered a formu-lation of what he thought was a better rule, he also had his tongue firmly inhis cheek.

So, for instance, Livingston purported to base his preference for Bar-beyrac over Justinian on the size of the dog Post used and how that (of allthings) should be used to decide the dispute—were they “large dogs andhounds” or “beagles only” (182). There is no indication of what kind or size


of dog Post used in the case, and this is the moment in the dissent at whichLivingston is most clearly making fun of the pseudoscholarly way in whichthe case was being handled. Although the dog-size criterion looks made up,Livingston was actually paraphrasing a passage from Pufendorf where it is,in turn, taken from a chronicle that purports to state the law handed downby the twelfth-century Holy Roman emperor Frederick I. It is located abouta half a dozen pages from the passage Cadwallader David Colden, Post’sattorney, referred to in his oral argument (Pufendorf 1749, 392). Living-ston’s point would seem to be that one might as well flip through the pagesof a law book and go with whatever one’s finger happened to alight upon ifone was going to refuse to think the problem through independent ofauthority, however eminent.

It was certainly not unusual for the New York Supreme Court to use civillaw authorities at the time of Pierson v. Post. This occurred most frequently injudgments by its two most senior judges, James Kent and Brockholst Living-ston. The context for the use of civilian sources was usually maritime law, andoften they were cases dealing specifically with insurance issues.4 However, noother case in the three volumes of the Caines Reports (1804–1806), in whichPierson v. Post was reported, had anything like its intensive use of non-EnglishEuropean sources, made most palpable by the odd absence of a commercialcontext that usually made recourse to the law of other systems a sensiblechoice at this time.

Kent (1898) reported that he and Brockholst Livingston were taughtby Alexander Hamilton to use civil law in commercial cases, specificallythe law of insurance, in which Hamilton specialized (317–18). The casesthat deal with insurance law and other maritime law issues relied on dis-cussions of the lex mercatoria, or law merchant, by English and continentallegal scholars.5 However, there is no other decision that takes on its legalissue in the same kind of abstract way as Pierson v. Post did, separated froma commercial context that would explain its recourse to Roman and civillaw authorities.

II. THE LAWYERS AND JUDGES

We now know from the record that Post’s lawyer was, as had beenspeculated, Cadwallader David Colden (Berger 2006; Fernandez, forthcom-ing). He had one year of classical education at a school near London,England, followed by law office training under a Loyalist émigré in NewBrunswick before returning to practice in New York (Dictionary of AmericanBiography 2008a; hereafter DAB). He was a former US District Attorney for

4. Henshaw v. M. I. Co. 1805; The United Ins. Co. of NY v. Robinson and Hartshorne 1805;Penny and Scribner v. The NY Ins. Co. 1805.

5. Leavenworth v. Delafield 1804; Penny and Scribner 1805; Lawrence v. Sebor 1804.

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New York City, a leading practitioner of commercial law in Poughkeepsie andNew York City, and a future US representative and New York City mayor(Berger 2006).

Pierson’s lawyer, Nathan Sanford, was originally from Bridgehampton onLong Island in New York State. He was a recipient of patronage as a childfrom the family of his future client, Pierson; went to Yale College; wasadmitted to the New York Bar in 1799; and was appointed US districtattorney for New York at the time the appellate case was decided (Berger2006). This was a position he held from 1803 to 1815, and thought to bringhim $100,000 annually in fees (DAB 2008d). In addition to wealth andeminence, Sanford was known for the delight he took in reading the Latinpoets (DAB 2008d). He was said to be “learned in the Pandects of Justinian”(Hedges 1895, 1) and was “distinguished for [his] mastery of many modernlanguages” (1).

In other words, both of these lawyers were established members of theNew York bar by the time that the New York Supreme Court decided Pierson.Colden had already taken a turn in the seat of United States attorney for NewYork City in 1798 (DAB 2008a). Even if the projected salary of $100,000 inannual fees was an exaggeration in Sanford’s case, one has to wonder whatsuch an eminent attorney was doing involved in a case where the amount atissue was 75 cents (presumably what the jury assessed to be the value of thefox) or $5.75, if one includes the amount of costs awarded against Pierson(Fernandez, forthcoming).

The judge who wrote the majority decision, Daniel Tompkins, was notmuch more senior than Sanford, having been called to the bar just two yearsearlier in 1797 (DAB 2008d; Roper 2000). Tompkins was appointed to theNew York Supreme Court in 1804, and so was a relatively junior judge at thetime he wrote the majority opinion in Pierson. Tompkins has been describedas having had an “uneventful” (Roper 2000) judicial career, which endedshortly after this case—in 1807 he took the path of party politics, holding anumber of high-profile positions, including various turns in the governor’schair, several unsuccessful bids for the presidency, and, finally, accepting whatwas thought of as a consolation prize, vice presidency of the United States(Roper 2000).

It was unlike Tompkins to write the kind of long and involved decisionhe did in Pierson. Indeed, it was relatively rare for him to say much ofanything at all in the cases he sat on. Prior to Pierson, Tompkins heard 258cases and wrote only 11 times. In 3 of those decisions, what he said consistedof 1 line stating that he agreed with one of the other judges.6 The other 8decisions in 1805 were short compared with Pierson—at 3 pages, it wastwice as long as his previous longest decision and much longer than the

6. Schuyler v. Van Der Veer 1804; Post and La Rue v. Neafie 1805; Shadwick v. Phillips 1805.


others.7 In an earlier decision, Tompkins was obliged to speak per curiam (forthe court) by the fact that he and Livingston were the only two judges presentfor the case, and Livingston was forced to recuse himself (Codwife and Ludlowv. Hacker 1804, 401). In another case, the comment was not much more thana line in agreement with what others said (Delevan v. Baldwin 1805, 104). Hereturned to his laconic style in the 3 cases included in the Caines Reports for1805 that he wrote after Pierson.8 The same is generally true of the 16 otherdecisions he produced before the end of his judicial career in 1807.9 Pierson isthus an anomaly in Tompkins’s judicial career, both in the use of Continentalauthorities and expenditure of energy.

As for Brockholst Livingston, it was not unusual to see him working withcivil law authorities. As noted above, he, like Chief Justice James Kent, wasvery comfortable doing this and took readily to such sources in a commercialcontext, such as maritime insurance law. Indeed, when Livingston wasappointed to the US Supreme Court, commercial law and maritime law werethe two areas he specialized in (DAB 2008c). So, then, why do we see himexpressing what would appear to be impatience with the use of civil lawsources in Pierson?

Livingston occasionally voiced exasperation with the way that thesesources provided an unwieldy “diversity of opinion[s]” on any given point(Penny and Scribner v. The NY Ins. Co. 1805, 160; see also Lawrence v. Sebor1804). “Writers on general law, who have favored us with their speculationson these points, differ on them all [with a great] diversity of sentiment amongthem,” as he wrote in Pierson (Pierson v. Post 1805, 181). Simply finding acivilian source containing one view would not necessarily answer a difficultlegal issue if contrary opinions were expressed in other sources. That is why itwas important to remember the need to find “a rule for ourselves” that madesense for the present time and its social and legal conditions (181). It mightwell have bothered him to see Sanford and Colden arguing the issue as iffinding the best authority simply decided the case, and Tompkins respondingso enthusiastically to this.

James Kent was known for raising the status of French and civil law atthe New York Supreme Court, treating such law as having special authorita-tive status, and using them to bully his colleagues on the bench intoacquiescence with his views. As he expressed it,

7. Codwife and Ludlow v. Hacker 1804; Robinson v. NY Ins. Co. 1805; Robert v. Garnie1805; Keeler v. Adams 1805; Brandt v. Ogden 1805; Delevan v. Baldwin 1805; Hinckley v.Boardman 1805; Ruan v. Perry 1805.

8. Ferris v. Coles 1805; Smith and Delamater v. Richardson 1805; Palmer v. Mulligan 1805.9. Ludlow v. Bowne and Eddy 1806; The People v. Barrett and Ward 1806; Peck v. The

Trustees of Randall 1806; Jackson v. Vredenbergh 1806; Potter v. Lansing 1806; Cheviot v. Brooks1806; Bebee v. Bank of New York 1806; Ward v. Clark 1806; Jackson v. Shepard 1806; Jackson v.Chase 1806; Vrooman v. Phelps 1807; Tom v. Goodrich 1807; Dewitt v. Schoonmaker 1807; VanBramer v. Cooper 1807; Sands v. Codwise 1807; Colden v. Thurbur 1807.

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[t]he judges, when we met, all assumed that foreign sentences were onlygood prima facie. I presented and read my written opinion that they wereconclusive, and they all gave up to me, and so I read it in court as itstands. This was the commencement of a new plan, and then was laidthe first stone in the subsequently erected temple of our jurisprudence.(Kent 1898, 117)

Kent identified Livingston as the only judge he could not “rout andcarry . . . by my mysterious wand of French and civil law” (117).

It was relatively unusual for the New York Supreme Court to issue anopinion with such a clearly delineated majority and dissent at this time. Thereare not many examples in the three volumes of the Caines Reports (1804–1806)where a dissent is identified as such (Jacob Schoonmaker v. Trans. 1804; Post andLa Rue v. Neafie 1805). The opinions are mostly by the whole court, per curiam,although there are others that use the particular combination we find inPierson, namely, a per curiam decision with one judge saying “I differ from thecourt” (Newkerk and others v. Newkerk and others 1805, 356). There does notseem to be a practice of identifying who else joined when there was a majority,although if one of the other judges wrote a one-line statement “I concur” thenwe know who the majority of at least two was (Pelton v. Ward 1805). However,in Pierson, we do not know whether any other judge was in the dissent withLivingston. The other three justices on the court at that time were SmithThompson, Ambrose Spencer, and the court’s chef justice, James Kent. Atleast one of them had to join with Tompkins for this to be the court’s opinion.Yet, there is no indication of who that was.

III. MOOT COURT DEBATE

Civilian authorities were extremely valuable for working with commer-cial law, maritime law, and the law of nations. However, opportunities toacquire this learning in early nineteenth-century New York State would havebeen fairly limited. A reading list provided by the senior lawyer in an appren-ticeship arrangement that included Justinian’s Institutes and Pufendorf’s TheLaw of Nature and Nations would get one started. Knowledge of more special-ized texts on the law merchant, the law of shipping, insurance, and interna-tional custom would come in due course if this became a focus in one’spractice, as it did for Alexander Hamilton. However, chances for most judgesand lawyers to use the basic texts in their day-to-day lives must have beenrelatively few and far between. Pierson would have been attractive to thesejudges and lawyers because it presented an opportunity to work with thosetexts in a real case. Foxhunting in New York might not have presented apressing economic or commercial issue, but one would want to be ready todeal in a sophisticated way with other cases that did. So, for instance, Daniel


Coquillette (1984, 383–86) has narrated the way that John Adams stood atthe ready with his Justinian and Grotius in an eighteenth-century Massachu-setts case, which posed a problem very similar to that in Pierson.

In Adams’s case, two whalers were arguing over who was the rightfulowner of a harpooned whale—the one who first sighted it and harpooned itbut then lost it, or the one who succeeded in bringing it in. Adams pointedto the same passage in Justinian that was invoked in Pierson (385). However,the case went to arbitration and “Adams’ classical learning was [n]everbrought to bear. . . . [Nonetheless] Adams certainly did get his Roman lawbooks out for the case, and doubtless would have tried to see if the Court ofVice Admiralty would have listened to those arguments, even in Boston in1768” (386). The mentor who emphasized to Adams the importance ofGrotius and Pufendorf set Adams on a path reading these texts, which werestandard readings for those who were preparing themselves for the bar (363).

It would make sense then that judges and lawyers involved in Pierson v.Post would have become genuinely excited by the chance to use the limitedclassical sources and classical training they received. Nathan Sanford, whosereasoning Tompkins tracked in his majority decision, in particular, seems tohave been keen on the use of such sources. Their interest in doing so wouldexplain why the case was not disposed of on the basis of the procedural errorwe now know was present, or any of the other simpler and more straightfor-ward substantive-law grounds (for example, no property in vermin). It wouldalso explain why the case was held over from term to term for such a longtime. Members of the court might have been keen to have their debate ingrand and eloquent terms but probably did not have much time for this giventhe press of more regular business.

So, just what did the context for moot court debates look like during thisperiod? Brockholst Livingston’s father, William Livingston, founded “theMoot,” a colonial debating club for lawyers (Hamlin 1970). As Milton Kleinhas explained, this was a club founded in 1770, modeled on one of the EnglishInns of Court, Gray’s Inn.

[Its] [m]eetings were professional rather than social, and its regular ses-sions were devoted to formal debates on technical questions in law andto discussions of large questions of professional policy. Younger membersof the bar received there virtually the benefits of a graduate education inlaw, and veteran lawyers and even justices of the Supreme Court soughtthe collective judgment of the Moot on knotty legal questions. (Klein1958, 357)

Indeed, versions of the moot court were a standard part of formal or semifor-malized legal education in early nineteenth-century North America.

The earliest American university law program, begun by Jefferson’smentor George Wythe, at the College of William and Mary in 1779, included

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moot courts and a “moot legislature” presided over by Wythe (Carrington1990). Probably the most famous of the early proprietary office schools inLitchfield, Connecticut, had a moot court “program” in which various topicswere chosen for debate (McKenna 1986). James Kent toyed briefly withopening up a version of this school in New York State (Horton 1939).Maximilien Bibaud, who organized an early law school in Québec, used anannual “Solemn Repetitoria” in his two-year program, in which students werequestioned by eminent lawyers (Morel and LaMonde 2000). Under anEnglish Inn of Court influence, lawyers training in Ontario arranged variousclubs and literary societies in which junior members of the profession wouldengage in public speaking exercises, a format that was especially popular inperiods in which the formal part of the education, then firmly in the hands ofthe profession, was faltering for one reason or another (Baker 1985). Loyalistlawyers in New Brunswick established a student version of “the Moot” in1786 called the “Forensick Society” (Bell 1988).

In a context in which apprenticeship and self-teaching and learningwere the norm, lawyers would likely have thought of themselves as engagedin an ongoing educational project in which a performative opportunity wasnot to be missed. It was the kind of thing one did—Bibaud’s repertoria, forinstance, were great social events (Macdonald 1987). Unlike the English Innsof Court, New York’s “The Moot” did not accept law students, althoughyounger members would be called upon to speak to the problem underconsideration or extemporaneously on a question of law (Hamlin 1970).Similar organizations existed in other colonies—one called Sodalitas inMassachusetts and another named the Institutio Legalis in New Jersey (Hamlin1970; Coquillette 1984; Skemer 1978). These clubs for practicing lawyersindicate that one did not need to be a student to participate in an oralexercise like this. A practicing lawyer or judge might well seize such aneducational debating opportunity.

This might look a little odd to us. However, what we might now thinkof as eccentric or unprofessional behavior, such as the assumption of a Romanlaw pseudonym to engage in vituperative debate in the local newspaper, was,for instance, all the rage in the early Republic. Engaging in a mock legal orpolitical debate, or a pretend judgment on a thorny issue, was thought of aslegitimate activity for an early nineteenth-century lawyer. Moreover, the linebetween fact and fiction was a wavy one when an educational motive was atstake. 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 atWestminster” (Hamlin 1970, 14). “The Moot also gave its members anotherkind of training—that of reporting cases tried in the supreme court. Theywere, therefore the first law reporters in New York. . . . Whatever reportsthere were, if any, have not been discovered” (104, note 12). Just as members


of “the Moot” were assigned the duty of making reports of proceedings of theNew York Supreme Court, the court report of a real case might partake insome moot court-style embellishment.

IV. JAMES KENT

When Kent came to write the installment on property law in hisfamous Blackstone-modeled work, the Commentaries on American Law, inthe 1820s, he included a discussion of animals ferae naturae as a species ofqualified property and Pierson v. Post specifically (Kent 1827, 281–83).Indeed, Kent included fairly extensive annotations on his copy of thesecond edition of the Caines Reports where Pierson v. Post was reported(Caines 1814, 177; reproduced in Figure 1).10 I have, unfortunately, beenunable to locate Kent’s copy of the first edition of the case, which mightbetter reflect what he was thinking closer to the time the case wasdecided.11 Although it is possible that Kent went back and annotated hiscopy of the case after the Commentaries were published, it is more likelythat he wrote these notes while in the process of preparing that work,sometime between 1814 and 1827.

It is well known that Kent was a furious annotator (DAB 2008b). Hismarginal notes on Pierson do not stand out in this respect. What is interestingabout them, however, is their particular content. As we will see, Kent addedan additional civilian authority to the debate who would have supported afinding for Post rather than Pierson—the eighteenth-century French jurist,Robert-Joseph Pothier. Pothier agreed with Livingston that custom was whatwas important in the case of hunting for wild animals, and from what hewrote in his property law treatise, Pothier seemed to agree with Barbeyracthat pursuit alone might be sufficient to establish possession in such situa-tions. However, we will see that even though Kent’s annotation indicated

10. Kent’s annotated copy of the case is located at the New York State Library, CulturalEducation Center, Albany, New York. Thanks to Helen Weltin, Senior Librarian, Manuscriptsand Special Collections, for her assistance in obtaining a copy of the case and confirming thatthe handwriting was Kent’s. Donald Roper (1980) referred to “Kent’s erudite marginal notes”(82, note 31) on his copy of Pierson v. Post in a 1979 working paper.

11. The New York State Library has the first and second volumes of the first edition ofCaines Reports (1806) but not the third volume (e-mail dated April 24, 2006, from HelenWeltin, Manuscripts and Special Collections, New York State Library, Cultural EducationCenter, Albany, New York, to the author). It also does not seem to be among the books in theKent collection at Columbia University, New York. The Columbia library does have a copy ofthe third volume of the first edition. Although the signature has been cut out of the title page,a remaining flourish indicates that it did not belong to Kent (e-mail dated June 8, 2006, fromWhitney Bagnall, then Librarian for Special Collections in Law, Columbia University, to theauthor). Kent might have destroyed or mislaid his copy of the third volume of the first edition.“[I]t’s inconceivable that he didn’t own it” (e-mail from Donald Roper on March 13, 2007, tothe author).

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Figure 1. James Kent’s annotations on his copy of a page of Pierson v. Postin George Caines, New-York Term Reports of Cases Argued and Deter-mined in the Supreme Court of that State, 2nd ed. Vol. 3 (New York: VanWinkle and Wiley Printers, 1814), located at the New York State Library,Cultural Education Center, Albany, New York.


that he knew Pothier was a dissonant authority, he edited this out of hisdiscussion of wild animals in the Commentaries.

A. Kent’s Annotations

Let us begin with Pufendorf’s The Law of Nature and Nations and, specifi-cally, the 1749 English translation that included notes by a commentator onthe text, Barbeyrac. Other scholars have noted that this is almost certainly thespecific text that was being used in the case (Donahue 1986, 57, note 69).Pufendorf (1749) wrote that “the first occupant” is “him who, before others,took bodily Possession” (386). However, as Tompkins put it in his reasons,“Barbeyrac, in his notes on Puffendorf, does not accede to the definition ofoccupancy by the latter, but, on the contrary, affirms, that actual bodily seizureis not, in all cases, necessary to constitute possession of wild animals” (Piersonv. Post 1805, 178). Kent placed a “+” sign next to “Barebyrac in his notes onPuffendorf” and wrote in the margin “+Lib. 4. ch. 6. #2.9. note 2” (see Figure 1).

“+Lib. 4. ch. 6. #2.9. note 2” would indeed appear to be a reference toPufendorf’s The Law of Nature and Nations, book four, chapter six, titled “OfOccupancy.” The 1749 English translation with Barbeyrac’s note is numberednote two and it is in section two, a little further down than the ninth line.Hence, Kent’s writing “#2.9. note 2.” Barbeyrac wrote in this note “that takingPossession actually (Occupatio) is not always absolutely necessary to acquire athing that belongs to no body” (Pufendorf 1749, 386). A person can also maketheir intention to take known so long as the thing is “within Reach of takingwhat he declares his Design to feixe on” (386). This is the part of the text thatwould have been most helpful to Post, a point that was not lost on his lawyer.Colden referred to this note of Barbeyrac’s in support of the contention that“manucaption” was only one way “to declare the intention of exclusivelyappropriating” what was in a state of nature (Pierson v. Post 1805, 176). Pursuitshould give “a person who starts a wild animal . . . an exclusive right whilst itis followed” (176). So long as that pursuit continues, it is the equivalent ofoccupancy, as “it declares the intention of acquiring dominion” (177).

Pufendorf (1749) himself, however, left the general issue that arose inPierson undecided. He defined “the most early Occupant,” as “he who layshold on such a thing before others, or gets the start of them in putting in hisClaim to it” (386, emphasis added). It was ambiguous “who,” either Pierson(who laid hold of the fox) or Post (who initiated the hunt), would be the firstoccupant and therefore the rightful owner. In other words, this bit of the textwould have been the perfect place for the scholarly disputation to begin.

Kent added an additional reference to Justinian in these handwrittennotes: “Dig. 41.1.5.#2. S.O.[?]” (see Figure 1) is a reference to Justinian’sDigest. This section of the Digest is titled “Concerning the Acquisition ofOwnership,” the first subsection of which focuses on “wild beasts” that are

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“captured on land or sea or in the air” and that thereby “become the propertyof their captors” (Justinian 1950, 45, D.41.1). There is a paraphrase fromGaius 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 keptunder his control; but when it has escaped from his control and recovered itsnatural liberty it ceases to be his and becomes once more the property of thefirst taker” (46, D.41.1.3). Why is this? Well, as “5 #2,” Kent’s “pin pointcitation” to the Digest, puts it, “many things may occur to prevent his cap-turing it” (46, D.41.1.5.2). That is why the beast must be actually taken, asKent underlined in the text (see Figure 1).

Sanford used Justinian’s Institutes rather than the Digest, both on thegeneral point that wild beasts when seized become the property of their captorby the law of nations—“for natural reason admits the title of the first occu-pant to that which previously had no owner”—and on the specific point thatthis stays as the captor’s property “so long as it is completely under yourcontrol; but so soon as it has escaped from your control, and recovered itsnatural liberty, it ceases to be yours, and belongs to the first person whosubsequently catches it” (Justinian 1913, 37, 2.1.12). Even if wounded, “itmay happen in many ways that you will not capture it” (37, 2.1.13).

Charles Donahue (1986) has explained that this passage from Justinianshould not have been taken to decide the case because the passage in its fullcontext “says that wild animals belong to the occupant and that the occu-pant’s ownership is lost if the animal escapes so that it is out of sight or pursuitis difficult” (48). However, in Pierson, the fox had not escaped, so it was notout of sight nor was pursuit difficult. “It is only if we assume that Justinian’stext was intended to be exclusive, i.e., that all the positive statements implya negative, that the test is dispositive” (48). At any rate, it was taken as such,even if this was not quite accurate.

Alan Watson (1996) has called the Institutes a “textbook for first-yearstudents,” noting that the less elementary Digest “was often simply not readilyto hand or was thought overly difficult” (437, note 26). Tompkins followedSanford’s use of the more elementary text. When Kent discussed this in hisCommentaries, he included both references, thereby completing the full cita-tion to both works he wanted to see (Kent 1827, 283, note b). His librarycontained copies of both the Institutes and the Digest (referred to by itsoccasional alternate name, the Pandects) (Kent Family Papers).

The next left-hand margin annotation on Kent’s copy of the case refersto someone who is mentioned nowhere by any of the lawyers and judges inthe reported decision: the great eighteenth-century French doctrinal theoristRobert-Joseph Pothier. Kent was fond of citing Pothier (Watson 1993). Kent(1872) wrote in one autobiographical sketch, “I read a great deal in Pothier’sworks, and always consulted him when applicable” (389). In one of hisopinions, Kent described Pothier as treating his topics “with a clearness ofperception, a precision of style, and a fullness of illustration, above all praise,


and beyond all example” (Griswold v. Waddington 1818, 492). Many of Pothi-er’s works were translated into English, and Kent had titles like “Pothier onContracts” and “Pothier on Contract of Sale” in his library (Kent FamilyPapers). However, Kent also read French, and his list of books contains manypublications in that language, including a twenty-six volume set of Pothier’scomplete works,12 probably an edition from 1821–1824.13

Pothier was one of the eighteenth-century treatise writers whose workwas so important to the rapid production of the 1804 Napoleonic Civil Codeof France. Scholars like Pothier, Jean Domat, and Françoise Bourjon wereinformally codifying the general law in their scholarly treatise-writing prior tothe official codification process (Halperin 2006). Much of this work consistedof drawing on Roman law sources like Justinian to smooth out inconsistenciesbetween different bodies of French customary law. Pothier himself had pro-duced an authoritative version of Justinian’s Digest, or Pandects (De Mont-morency 1913), which Kent had in his collection (Kent Family Papers).Modern scholars have pointed out that much of this Roman law was not realRoman law. Ideas supposedly based on Roman law that made their way intothe code were “almost always ‘modern ideas’ developed in the seventeenthand eighteenth centuries, dressed up in a toga” (Halperin 2006, 69). At anyrate, the work done by these French doctrinal writers was extremely impor-tant to that jurisdiction’s ability to codify as quickly as it did, and Pothier isamong those who made that particular reorganization of the law possible.

Kent’s annotation—“See Pothier Vol. 17. [?]. 28–31”—would appear tobe a reference to a volume seventeen of some edition of the collected works(see Figure 1). Some editions of the collected works include a volume seven-teen on the customary laws relating to possession, and numbered passages inthe vicinity of these more specific numbers deal with issues that would havebeen relevant to Pierson. For instance, one finds treatment of the various waysof conserving and losing possession at paragraphs 27 to 39 (Pothier 1822,385–407), including the point that it was not absolutely necessary to touch athing to acquire possession of it at paragraph 19 (393) and some discussion ofanimals that are habituated to come and go at paragraph 39 (402). But thereis nothing on wild animals and nothing that would directly support thecomment Kent wrote in the margin: “[t]he animal must be brought within thePower of the Pursuer” (see Figure 1).

The treatise on property, by contrast, contains material directly on point(Pothier 1821). This was the last of Pothier’s published material, finished in

12. This is listed as “Works of Pothier, 26 vols. (French)” (Kent Family Papers).13. Of the editions of the complete works listed by David Hoffman (1846)—and therefore

available in the United States—there is only one with twenty-six volumes: “M. Berville. Paris,1820, 26 vols” (496). The Berville edition is actually dated 1821–1824 (Pothier 1821–1824). Ihave been unable to track down Kent’s set and cannot therefore ascertain which edition of thecomplete works he was using; however, I suspect it was the Berville. It is the only twenty-sixvolume set I have been able to locate.

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1772 (De Montmorency 1913). Unlike the work on obligations and contractof sale, it was not translated into English.14 We know that Kent was readingPothier in French in 1805—although the property work is not among thoseindividually listed for that year (Kent Papers, “1805 [List of Books Read]”).Kent was, however, citing from it as a stand-alone treatise as early as 1810(Curtis v. Groat 1810, 170). He continued to cite to the individual works inthe Commentaries.15

Kent’s recourse to the stand-alone treatises made sense, since the volumenumbers of different topics varied from set to set of the complete works, anda reader of a published report or book like the Commentaries might well havea different set. An annotation, on the other hand, is a personal note—theperson who makes it knows it is to his or her set. The only twenty-six volumeset I have been able to identify—compiled by Saint-Albin Berville—does notinclude property in its volume seventeen.16 Kent had a habit of providing thewrong citations in his published work (Watson 1993), and it might be thatthe handwritten remark was a case of this, specifically mixing it up with thevolume containing the customary laws relating to possession. In any event,what is found in the property treatise is too much on point to be a coinci-dence. If Kent did not write it in the margin there, he should have.

The first part of the treatise addressed the issue of what the right ofproperty was and the ways of acquiring and losing it (Pothier 1821, 2).Immediately after considering the substance and contents of the right ofproperty, the text next considered the occupation of things that belong to noone (13). What was said? Of things that belong to no one, they may beacquired by “the first occupant” (13). The discussion then moved on to thingsthat are res communes or res nullius like air and water, as well as animals. Adistinction was made between domesticated animals, in respect of which a

14. A list of English translations of Pothier’s work includes his treatise on maritimecontracts, the contract of sale, and multiple editions of the treatise on obligations, but nothingon property (Parrish 1979). Another list contained translations of the treatise on obligationsand contract of sale (Marvin 1847). Thomas Jefferson had only the English translation of thetreatise on obligations (Sowerby 1953). Another list using Morris Cohen’s Bibliography of EarlyAmerican Law and Marvin included no English translations of Pothier’s treatise on property orthe complete works (Hoeflich 2002). Given the absence of an English translation of the work,I rely on my own translations skills in the passages referred to here.

15. “Pothier’s Trait[é] du Contrat de Marriage” (Kent 1827, 67, note a); “Pothier’s Trait[é]du Contrat de Vente” (Kent 1827, 262, note b); “Pothier, Traité des Oblig[ations]” (Kent 1827,398, note a); “Pothier, Traité du Contrat de Dépôt” (Kent 1827, 437, note a); “Pothier, Traitédu Prêt à Usage” (Kent 1827, 447, note b); “Pothier, Contrat de Nantissement” (Kent 1827,452, note a)). This included citation to the property law treatise “Pothier’s Trait[é] du droit dePropri[é]té” (Kent 1827, 43, note b).

16. My best guess is that the property material is in volume fifteen of the Berville edition.The Bibliothèque Nationale de France Berville edition is missing its volume fifteen (Pothier1821–1824). What appears to be a Berville edition at the Yale Law School Lillian Goldman LawLibrary places “possession, prescription” in volume fifteen. http://morris.law.yale.edu/search?/apothier/apothier/1%2C4%2C86%2CB/frameset&FF=apothier+robert+joseph+1699+1772&4%2C%2C83 (accessed December 19, 2008).


http://morris.law.yale.edu/search?

loss of possession would not entail loss of ownership, and wild animals (feraenaturae), which being possessed by no one remain the common property ofall. Pothier called the latter state one of “negative community” (14). Wildanimals “stay in this state and can only be acquired when seized” (15).Speaking specifically of the hunt, Pothier wrote that “it is sufficient that theanimal be in the person’s power in a manner in which it cannot escape” (16).It is this that comes closest to the words Kent wrote: “[t]he animal must bebrought within the Power of the Pursuer” (see Figure 1).

Kent inscribed his Pothier annotation next to the text in Pierson v. Postthat reads “[i]t therefore only remains to inquire whether there are anycontrary principles, or authorities, to be found in other books, which ought toinduce a different decision” (see Figure 1). He probably wrote it at that spotbecause, as it turns out, Pothier was one of those authorities who would have“induce[d] a different decision” (Pierson v. Post 1805, 178).

Pothier’ property law treatise went on to summarize Pufendorf’s discus-sion of wounding an animal when in pursuit of it and the consequences ofthat wounding being mortal or slight. If it was slight, the animal would go tothe one who seized it rather than the original pursuer. A more serious wound-ing, however, would be able to block the claim of an interloper like Pierson.Pothier then noted that Barbeyrac was of a completely opposed sentiment.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 permittedfor someone else to seize that animal during that time. Why did Barbeyracthink this? Because, according to Pothier, this more civilized sentiment waswhat was followed in practice. Pothier grounded it in an article in the old lawof the Salians (Pothier 1821, 18).

If the case really was being determined by a battle of authorities, as thelawyers’ arguments and Tompkins’s opinion in the Caines Reports at timessuggests, this might well have resulted in Post’s triumph over Pierson, or, ifyou prefer, Pothier’s over Justinian. At the very least, had Pothier been amongthe sources canvassed by Post’s lawyer or by the judges, Pierson’s lawyer couldnot have said as he did (rather contemptuously) of Post’s position that “[t]heonly authority relied on is that of an annotator,” namely, Barbeyrac (Piersonv. Post 1805, 177).17 Post’s lawyer could have pointed out that a scholar aseminent as Pothier—who had himself helped to shape how Justinian wasreceived by the modern world—agreed with his position on the issue.Although the issue of whether escape was possible was important, pursuitalone should be sufficient given the more civilized sentiment followed inpractice, according to the great French theorist Robert-Joseph Pothier.

17. Barebyrac was, however, held in high esteem; some like Adams’s mentor, JeremiahGridley, preferring Barbeyrac’s notes to Pufendorf’s text (Coquillette 1984). “The most fre-quently used edition of Pufendorf was that by Barbeyrac, whose own commentary on the textwas itself cited with approval in a number of cases” (Rogers 1987, 169).

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Kent’s handwritten reference to Pothier—“[t]he animal must be broughtwithin the Power of the Pursuer”—does not deal with the crucial question ofwhat degree of control is required vis-à-vis the power of the pursuer. Must heseize the animal such that escape is no longer possible, as Justinian stated?Well, as Kent wrote in the most dramatic of the annotations at the bottom ofthe page:

Almost all the modern civilians agree that the Beast must have beenbrought within the reach or power of the Pursuer to vest property. Actualtaking may not in all cases be requisite, but all agree that mere pursuitwithout bringing the animal within the power of the party, is not suffi-cient (see Figure 1).

In other words, while seizing the fox, as the interloper Pierson did, might nothave been required to make him the first occupant in the legal sense, Post’s“mere pursuit,” without bringing the fox within his reach or power, was notenough to make him the owner.

B. Kent’s Commentaries

When it came time for Kent to formulate the point about posses-sion and ownership of wild animals in the Commentaries, he wrote that“[i]t was held by the Supreme Court of this state, in Pierson v. Post, thatpursuit alone gave no property in animals ferae naturae” (Kent 1827, 282).He went on to write, mirroring the annotation (with changes marked byunderlining):

Almost all the jurists on general jurisprudence agree [instead of Almostall the modern civilians agree], that the animal [rather than the Beast]must have been brought within the power [as opposed to reach or power]of the pursuer, before the property in the animal vests [in place of to vestproperty]. Actual taking may not, in all cases, be requisite; but all agree,that mere pursuit, without bringing the animal within the power of theparty, is not sufficient. (282)

Kent followed this substantially similar reproduction of his own annotationon Pierson with the following: “The possession must be so far established, bythe aid of nets, snares, or other means, that the animal cannot escape” (282).He then summarized the holding in Pierson:

It was, accordingly, held, in the case just mentioned, that an actionwould not lie against a person for killing and taking a fox which hadbeen pursued by another, and was then actually in the view of the personwho had originally found, started, and chased it. The mere pursuit, and


being within view of the animal, did not create a property, because nopossession had been acquired. (282–83)

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

The civil law contained the same principle as that which the SupremeCourt adopted. It was a question in the Roman law, whether a wild beastbelonged to him who had wounded it so that it might easily be taken.The civilians differed on the question; but Justinian adopted theopinion, that the property in the wounded wild beast did not attach untilthe beast was actually taken. (283)

There was no reference to Pothier, although it seems likely that Kent had himin mind when he originally wrote “almost all the modern civilians agree” inthe annotation rather than “all” (see Figure 1). He did not point out Pothier’sdivergence in his Commentaries either, writing there again that “[a]lmost allthe jurists on general jurisprudence agree” (282, emphasis added). Pothier wasone of those dissonant authorities, since although he thought that “power”did have to encompass more than mere pursuit, he did not require an actualtaking such that the animal could not escape, as Justinian seemed to. Why didKent edit out Pothier’s disagreement?

Part of Kent’s reluctance over reproducing Pothier’s contrary view in theCommentaries may have had to do with language. We know that Post’s lawyer,Colden, used a popular English translation (by David William Evans) ofPothier’s work on obligations in at least one case (Frith v. Baker 1807). Theabsence of an English-language translation of the property treatise, which fewcould read in the original, might have contributed to Kent’s decision to letsleeping dogs lie. As Michael Hoeflich (2002) has written, “when one askshow many lawyers during this period would have been fluent enough inFrench to read the works of Pothier or Barbeyrac in French [one is] left withthe impression that the number was not great outside of places like Louisiana”(757). However, it is also very likely that Kent was motivated by a concernabout doctrinal stability.

By the time the second volume of the Commentaries appeared, it hadbeen twenty-two years since Pierson was decided. Moreover, it had beenfollowed in other cases—as Kent (1827) himself wrote, “the same doctrinewas afterwards declared in the case of Buster v. Newkirk” (283), althoughthis was a case in which the interloper was a second hunter and the originalpursuer had given up the chase overnight, making “he who seizes takes” theobvious outcome, with or without Pierson v. Post. In any event, it was notobvious what good would come from calling into question the rule inPierson v. Post. It was not clearly better to replace “he who seizes takes” (abright line rule) with the customary (but arguably vaguer) polite rule that

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being close to seizing the prey is enough to exclude others. Kent probablyfelt that part of the point of a work like the Commentaries was to fix anauthoritative iteration of the law, not cast doubt on what had becomesettled law. As Lord Mansfield said, and Kent quoted elsewhere in the Com-mentaries, “the certainty of a rule was often of much more importance inmercantile cases than the reason of it, and . . . a settled rule ought to beobserved for the sake of property” (Kent 1826, 444). This was particularlyso in the case of potentially troublesome ownerless property like wildanimals, in which competing claims could easily lead to the dissensionBlackstone warned about.

Kent started the property discussion in his Commentaries just as Black-stone did, with a discussion of how important property was. Blackstonefamously wrote:

There is nothing which so generally strikes the imagination, and engagesthe affections of mankind, as the right of property; or that sole anddespotic dominion which one man claims and exercises over the exter-nal things of the world, in total exclusion of the right of any otherindividual in the universe. (Blackstone 1766, 3)

“The sense of property is inherent in the human breast,” Kent echoed(1827, 256). Indeed, according to Kent, “[t]he appetite for property is sokeen, and the blessings of it are so palpable, and so impressive, that thepassion to acquire is incessantly busy and active. Every man is striving tobetter his condition” (270). Kent then moved on, as Blackstone also did,to the classification of chattels as either absolute or qualified, the latterconsisting of air, light, and water, as well as animals ferae naturae (281;Blackstone 1766, 14).

From one perspective, the legal issues raised by wild animals are veryspecific and indeed rather quaint, especially when the animal was of as littleeconomic significance as the fox in Pierson. However, animals ferae naturae arethe classic example of qualified property. And this example has historicallyplayed an important role in a general script for property law, very familiar tothose with some knowledge of civilian sources: property either moves or it doesnot; of property that moves, ownership of it is either absolute or qualified; theclassic example of qualified ownership in movable property was animals feraenaturae. If Kent’s work was going to be thought of as great and complete, itwould be important to convincingly reproduce something like this recogniz-able rhythm for American property law in his book.

We know that the great focus in English property law on real propertywas perceived as a problem by Kent and his contemporaries. The emphasis onland was inappropriate, given the increasing importance of personal (ormovable) property in the new republic. Kent (1827) wrote in his Commen-taries that “the law of chattels, once so unimportant, has grown into a system,


which, by its magnitude, overshadows, in a very considerable degree, thelearning of real estates” (278). Compared to England, an island on which therelative scarcity of land enhanced its function as a source of wealth and classdefinition, real estate in the United States did not occupy the same symbolicparamountcy, since land was cheap, society was somewhat less rigidly class-structured—at least so the song was sung—and it was more important forthere to be more mobile forms of property.

In the United States, land itself was commodified, in the sense that itbecame subject to ready and easy exchange in contract (Friedman 2005).Kent reflected the American reprioritization by “mov[ing] personal propertyahead of real property and great[ly] expand[ing] the scope of personalproperty law” by placing in it “virtually the whole of what we would callcommercial law, including negotiable instruments, sales, and insurance”(Alexander 1997, 141–42). It was, therefore, important to establish the firstprinciples of property law in just the same way one would in a civiliansystem. Considering whether ownership was absolute or qualified was one ofthese first principles. In a common law system it was much better to supportthe discussion of these basic issues with examples like ownership in wildanimals, backed up by cases, rather than engaging in “law-making by trea-tise” (Wenig 1990, 844). Kent did not require a case to deal with occupancyof wild animals in the Commentaries; however, having one made for abetter, more persuasive, more authoritative presentation. A first principleschattel case considered in the light of civilian authority, Pierson would,therefore, have been a valuable case to him, regardless of which specific rulerespecting wild animals was adopted.

Kent’s discussion of Pierson dealt with a foundational building blockconcept—property could be absolute or qualified. Such concepts and theirpresentation in a work like the Commentaries is part of what made such workspedagogical or “didactic” (Langbein 1993, 586). As John Langbein haswritten about Kent’s Commentaries and works of “institutes of national law”generally, “they are works of instruction, introducing neophytes to the law”(586–87). Indeed, the importance of setting out the basics of a doctrinalexplanation in general abstract terms was probably one of the most importantthings that the civil law taught English common law lawyers, who turned toit for inspiration. Both Thomas Wood and Matthew Hale, for instance, usedthe “institutionalist” form for organizing English law, employing the charac-teristic tripartite division of persons-things-actions (Simpson 1981). Thisfamiliar structure came from Justinian and the chief architect of his code,Gaius (Kelley 1979; Langbein 1993).

In addition to being didactic, these works were generally “devoted to thetask of defining national legal systems” (Langbein 1993, 586). Countries likeFrance and Spain used the tripartite structure to solidify the nation-state(Cairns 1984). When Blackstone used it after Wood and Hale, it was similarlyin the service of national law—organizing English common law in a way that

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was uniform and easy to access. Unlike civil law countries, where university-taught law played a key role in these nationalizing efforts, English commonlaw was studied outside that setting. The institute-structured books, therefore,had an important role to play in students’ and lawyers’ self-teaching andlearning. This need was even more heightened in America, where Black-stone’s books “were at once law school and law library . . . the [very] bible ofAmerican lawyers” (Boorstin 1941, 4). Institute works were “commonly. . . meant to serve in place of organized university education or in advance ofit” (Langbein 1993, 587). Early American didactic law writers like ZephaniahSwift and Tapping Reeve also used versions of this structure in their writingand teaching (Fernandez 2007). When Kent offered his version in the Com-mentaries, he was therefore following in an established pedagogical tradition.And there is no reason to think that his work was any less important to theconsolidation of the nation-state.

The Commentaries themselves were not prepared until quite late, afterKent had left the bench and at his son’s suggestion (DAB 2008b). However,we know that Kent was thinking about property and what a treatment in thegeneral law would look like from an early date. The public announcement ofthe topics for his 1794–1795 lectures at Columbia University in New Yorkstated that he would cover “the rights of property, both real and personal inall their several gradations and modifications, and the several ways in whichproperty is acquired and transferred” (Kent 1903, 342). We also know thathe wrote to his brother, Moss, that he was unable to get to the part of thecourse that dealt with personal property, although he hoped to in the future(Langbein 1993). He might have done so when he subsequently offered thecourse in the fall of 1795 or 1796. He certainly may have covered the topicin the second set of lectures he delivered at Columbia in February 1824 andthe academic year 1825–1826.

Kent (1898) read and made “copious extracts” (19) from Grotius andPufendorf. Referring to his clerkship years in Poughkeepsie, New York, Kentwrote, “I read, the following Winter [1782], Grotius and Puffendorf, in hugefolios, and made copious extracts” (19). He would have, therefore, beenfamiliar with the way that they dealt with the chestnut problem of propertyin wild animals in the state of nature. He also read Blackstone “again andagain” (19) and would certainly have known about Blackstone’s obsessionwith the need to avoid strife in the opening passages of his property lawtreatment.

Blackstone’s natural right to property was based on “the authority ofGrotius, Pufendorf, Barbeyrac and Mr. Locke” (Lieberman 1989, 46). Byciting such authorities, Blackstone “ensured that the science of English lawwould not be found insularly ignorant of the prestigious and influentialbody of Grotian natural law theory” (37). Kent was likewise concerned toraise the level of law making at the New York Supreme Court to a levelwhere it would not be found to be “insularly ignorant” (37). This was a


concern he had about the bench from his earliest days there, finding theother judges, as he famously put it, “very illiterate as lawyers” (Langbein1993, 567). So, for instance, Kent expressed disappointment with his juniorcolleague Smith Thompson for knowing “nothing of the civil or Frenchlaw” and for being “very little of a Scholar & with no large & liberal views”(Roper 1972, 234–35). Thompson tended to cite to the English translationof Pothier’s treatise on obligations (Dennis v. Cummins 1803; S. Hall v.Shultz & Shultz 1809).

Knowledge of Roman law operated as evidence of superior learning forKent, and he cherished Latin for its ability to create an elite caste of juristswho understood the mysteries of the law. So, for instance, Kent (1898) wrotein response to a proofreader who suggested that the Latin phrases be renderedin English: “[W]e don’t want every man to be his own lawyer, and he couldnot be, even if all the Latin was in the plainest possible English. What kindof legal protection would you have if every man could be a lawyer?” (199–200). Elitism helps explain why Kent tended to speak (falsely) of everythinghaving its roots in Rome in the Commentaries—the roots of English law andthe beginning of the law teaching profession (Langbein 1993, 570). Heexpressed much admiration for Rome’s patrician class. It was their job “toretain the management and control of the whole administration of justice”(Kent 1826, 491). Kent noted that the “mysteries of jurisprudence, confinedto the learned of the patrician order, [were] locked up in the pontificalarchives” (491).

Michael Hoeflich (1992) characterized Kent’s interest in Roman law as“antiquarian,” noting that he was more interested in the idea of Roman lawthan the details and the appearance of learnedness (1732–35). Seeminglyaware that this charge might be made against him, Kent denied that his useof Roman law was done with an “idle view, to gratify a mere speculativecuriosity, or to gather up the fragments of antiquarian fame” (quoted inRobinson 1914–1915, 406).

Lawyers in America—particularly those of a Federalist persuasion—werethe members of a native “patrician order” (Kent 1826, 491). As Tocqueville(1990) famously observed in Democracy in America, they were the closestthing to an aristocratic class in the country. Tocqueville quoted Kent’s Com-mentaries on a passage meant to illustrate that antidemocratic sentiment wasalive and well in 1830 (202). Kent had Democracy in America in his library, inFrench (Kent Family Papers).

Great scholarly judges like Kent would help make codification of thelaws unnecessary through their treatise-writing, which would becomeauthoritative in the way that a case or statute itself would be. And, indeed,conservative branches of the profession were thrilled with Kent’s Commen-taries for precisely that reason, calling him the “doctor of the laws to thewhole republic” (Horton 1939, 306), the malady to be cured being seeminglyendless debates about codification and whether state legislatures should be

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enacting codes for various branches of the law.18 High jurisprudential litera-ture would help keep the “mysteries of jurisprudence . . . locked up in thepontifical archives” (Kent 1826, 491) rather than expose the law to thepotentially dangerously democratic excesses of state legislatures.19

Court reports like Caines were themselves part of this effort to stave offcodification. As Kent (1826) put it, this was a matter of being able to claimcredibly that “[a] great proportion of the rules and maxims which constitutethe immense code of the common law” (439) are knowable. In other words,a real code was not required. A body of published reports would enable thosejurists who opposed codification to say we effectively already have a kind oflegal code in the cases. The importance of published reports was therefore apillar in the anticodification/pro-common law arguments of the 1820s. JohnLangbein (1993) has explained how important the reports were to Kent’sefforts to build up “learned law” in the state (571–84). The report in Piersonand Kent’s inclusion of it in his Commentaries played a role, albeit a small one,in this larger and extremely important project of providing learned law forNew York State.

C. Kent’s Influence

Of all the judges on the New York Supreme Court in 1805, Kent andLivingston were the best positioned to recognize in the facts of Pierson v. Postan opportunity to create a great case. Given the flippant attitude Livingstonexpressed in his dissent, it seems unlikely to have had its source in him.Tompkins did not exhibit much enthusiasm for the exercise, rather roboti-cally following Sanford’s arguments in his majority opinion. Nor was heterribly committed to elevating the legal tone of the New York SupremeCourt, as we have seen. Thompson was weak with foreign law and civil lawas noted above. And Ambrose Spencer was an unlikely candidate: “Not adeep student of legal lore like James Kent, he [Spencer] wrote brief opinionswherein citations were few and reasoning was based on commonsense reali-ties” (DAB 2008e). Of the judges, it is Kent who was most likely to have

18. In addition to multiple copies of the French Civil Code, Kent’s library containedother codes and works on codification. The list of books included: Empress Catherine’s Code forRussia; Report on Penn. civil code; Commercial Code of France (English); Code Penal (French);Humphrey on Codification; Civil Code of Louisiana; Code de Succession; The Livingston Code; PenalCode of Louisiana; Penal Code of China, 2 vols; French Code of Commerce (translation); and Code(French) of Criminal Instruction (Kent Family Papers).

19. As Daniel Hulsebosch (2005, 299) has written, “Kent and other Federalist heirsresisted most codification efforts because they arose at the state rather than the national level.The federal government lacked the power to enact a private-law code”; “in practice thecodification controversy was a conflict between two groups of lawyers: those who wanted tounify American law through treatises and legal education, and those who wanted to do so asdelegates of state legislatures.”


recognized the potential in the facts of the case for a learned law exercise and,unlike Livingston, to have actually wanted this to happen in a serious way.

Kent’s familiarity with the texts in question, specifically Pufendorf andBlackstone, would have been important to recognizing the opportunity thecase presented. But more so would have been his desire to see the New YorkSupreme Court deal with the case in grand style. He would have had atleast three motives for wanting this to happen: (1) to provide a pedagogicalexercise for more junior members of the legal community, whom he wanted toteach to speak in the learned style he thought should be adopted by the NewYork bar and bench, as part of his quest to elevate them from their so-calledlegal illiteracy; (2) to generate an American precedent on the classic issue ofhow one acquired possession in wild animals worthy of inclusion in a worklike the Commentaries; and (3) to augment generally the quality of what wasbeing included in the reports.

It has been said that Kent used erudition as “a weapon in itself . . . [to]subdue his opponents into acquiescence in his own views” (Horton 1939, 148).

I made much use of the Corpus Juris, and as the Judges (Livingstonexcepted) knew nothing of French or civil law, I had immense advantageover them. I could generally put my brethren to rout and carry my pointby some mysterious wand of French and civil law. (Kent 1898, 117)

As effective as this might have been for Kent to have his way with hiscolleagues, it is clear that he wanted junior members of the bar and bench tobecome trained in the learned dimensions of the law and not look illiteratewhen measured by nonprovincial standards. In other words, he wanted to seethe creation of a more refined national legal community to which his ownstate would be an important contributor.

By the time Kent left the bench, according to his biographer, JohnHorton, some success had been met with in that respect:

Never again could it be said of the judges of New York . . . that theirdecisions showed no trace of knowledge or investigation. Never againcould it be said that those judges were content to deliver their opinionsorally. On the morrow of his appointment, Kent had mounted the benchfurnished with an opinion written out and bristling with citations; andto his associate’s dismay, he had kept up the practice until they too weredriven to adopt it in self defence. (Horton 1939, 150–51)

Hence, Tompkins was forced to meet the general law principles and civil lawauthorities on their own terms in the case, regardless of whether it would havebeen his preference to do so. We have seen that it was certainly not the onlyway that the case could have been dealt with.

Cases involving certiorari petitions that went directly to the New YorkSupreme Court for review “became very numerous in the early nineteenth

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century; by 1814 the number was nearly two hundred a year” (Folts 1991, 53).A collection of basic principles taken from many of these reported casesappeared in print in 1813 (Gentleman of the Bar 1813). It amounts to a listof reasons for reversal or nonreversal of decisions made by justices of thepeace. This was extremely helpful, especially to a justice seeking to avoidreversal for error. However, it would be difficult to describe the principlescoming out of these cases as constituting a “temple of . . . jurisprudence”(Kent 1898, 117). So, for instance, holding for Pierson on procedural groundsas could have been done in the case would do nothing in the service ofproviding an American precedent on a classic first principles property lawchattels case. Nor would a report, similar to the judgment roll that containeda simple disposition in favor of Pierson, do much to elevate the learned-lawlevel of the reports generally.

Kent cared intensely about the level of learned law in the state.However, and here is the crux of the matter, just because Pierson fit perfectlywith that interest—as a pedagogical exercise for junior members of bar andbench, to create an American precedent on a classic issue, and as way toaugment the reports—this does not mean that this is in fact what happened,namely, that he engineered the hearing of the fox case with these aims inmind.

In fact, Kent was not the chief justice when the certioriari writ wasgranted in Pierson. We now know that the judge who signed the record in1803, ordering the production of documents from the court below so theycould be examined for error by the New York Supreme Court, was then ChiefJustice Morgan Lewis (Fernandez, forthcoming). Lewis was not given towriting long or learned decisions and was not likely to have been interestedin a learned-law exercise.20 However, we also now know that the case washeld over for what seemed an inordinately long length of time—over two anda half years—and was only decided after Kent had assumed the office of chiefjustice. This fact suggests that Kent was behind saving it until there was anopportunity to deal with it in the way that was desired.

Yet, if Kent was behind holding the case over as an opportunity for agreat debate, some puzzling questions remain. Given how prolific Kent wasand all the reasons he would have had for playing an active role in Pierson,why would he not have written reasons in the case? Why leave it to Tomp-kins? Why not, at the very least, point out to the lawyers the relevance ofPothier, since at that time there was no concern about doctrinal stability?

The simplest explanation of why Kent did not write reasons in the caseis that he may not have been present at the oral hearing when judgment wasrendered on September 10, 1805. Unfortunately, neither the Columbia

20. Under Lewis’s leadership there were 174 unanimous decisions (usually about thelength of a paragraph) and only 18 dissents, with few concurrences.


University collection nor the Library of Congress collection of Kent’s papersreveal his whereabouts at that time.21

Even if Kent was present at the hearing, he might well have wanted togive Tompkins a chance to see what he could do with the problem. How elsewas the process of “upgrading” the legal community going to proceed withoutproviding more junior members of the bar and bench with such opportunities?We know that acting as a “preceptor” to junior judges like Tompkins was apriority for Kent (Horton 1939, 150). Tompkins had actually been a studentof Kent’s, when he attended Kent’s lectures at Columbia between 1794 and1795 (Roper 2000). Given the participation of such strong lawyers, andespecially if Kent agreed with the position as it was formulated by the strongerof the two, Nathan Sanford, he might well have thought Tompkins should beprovided with an opportunity to show what he could do.

As for Pothier, it is possible that Kent had not yet read the propertytreatise. The earliest example of citation to it I have been able to locate is1810 (Curtis v. Groat, 1810, 170). Or, if he was not present, there was noopportunity to suggest the text to those involved in the exercise. It might alsobe that Kent knew what Pothier said but thought it unfair to introduce thebook given that not all parties involved could work with the French text,specifically Post’s lawyer, Cadwallader David Colden. However, perhaps hissuppression of the authority was more deliberate if he actually disagreed withPothier and Barbeyrac, and preferred Justinian for the certainty of the rule “hewho seizes takes.” If Kent thought that the polite rule based on an imminenttaking preferred by Livingston, and which seemed to be supported in at leastsome instances by custom, was a bad rule, this could also explain why he lateredited Pothier’s disagreement out of the Commentaries. Why advertise in his

21. The conclusion, with respect to the Columbia University papers, is based ona consultation of the finding aid. http://www.columbia.edu/cu/lweb/archival/collections/ldpd_4078978/index.html (accessed May 5, 2008). Since some items are only partially listed,Columbia University Butler Rare Book and Manuscript librarian Gerald Cloud performed asearch and found no items from 1805 (e-mail dated May 8, 2008 from Gerald Cloud, to theauthor). A finding aid for the Library of Congress collection was provided in photocopy form bymanuscript reference librarian Lia Apodaca. I performed a search using Yale Law School’s set ofmicrofilm of the Library of Congress collection, the results of which are some letters from 1805,the relevant aspects of which are described below.

The August term was in Albany, New York, and the absence of letters written to his wife,Betsey, would suggest that Kent was at home in Albany with her. We know that earlier thatsummer Kent made an arrangement with Livingston to do some circuit court duty that wouldallow him to be closer to Albany after the termination of the May term (The Papers of JamesKent, Letter A). Given the wild enthusiasm both he and Betsey express over this (Letter B), onegets the impression he would not have returned to New York City (where the judgment roll wasfound) any earlier than he absolutely had to, that is, for the November term. However, we donot know where his September and October circuit duties took him. There are journals of thecircuit court trips in the Library of Congress papers; however, there are no entries in the findingaid for 1805. It is certainly possible that he was in the New York City area or elsewhere, and theletters between he and Betsey from this time have simply not been preserved.

Pierson v. Post 329

http://www.columbia.edu/cu/lweb/archival/collections

own work what he likely knew would be an influential view he would rathersee repressed rather than promulgated?

CONCLUSION

There is no Chase, in which Men are so heated and rais’d, and in whichthey 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. (Kennett 1703, 1)

Pierson v. Post was accepted and treated in the way that it was by the New YorkSupreme Court in order to raise and then settle, as Tompkins put it, “a noveland nice question” (Pierson v. Post 1805, 177) or, as Livingston said, “a knottypoint” (180). One wonders why make a case more complicated than it neededto be for the purposes of disposing of it as between the parties? However, fromanother point of view, this was exactly what a court like the New York SupremeCourt was supposed to be doing, in the push to create a more refined legalprofession and a body of sophisticated law for New York State.

The lawyers and judges did not need to treat the case in the elaborateway that they did, given all the other grounds for reversal that were available.First, there were the procedural issues that could have led to a finding forPierson (Fernandez, forthcoming). Second, the tort claim was unlikely tohave succeeded in a ruling for Post. And, third, the foxes were vermin thatcould (and indeed perhaps should) have resulted in a straightforward defeat ofPost’s property claim. In other words, Post could not win, and Pierson’sappeal, as “the now plaintiff” (Pierson v. Post 1805, 175) could have beengranted on any of these grounds, without invoking any Roman law or civillaw sources or engaging in any discussion of the general issue of wild animalson wasteland. Nonetheless, the lawyers and judges involved in the case wentout of their way to use the case to have that great debate. Reversing the caseon pedestrian procedural grounds or on trite common law would not haveprovided an occasion for junior members of bench and bar to flex theirlearned law muscles, nor would it do anything for the larger project ofenhancing the sophistication of the law in New York State. A decision usinggeneral civil law sources made important by unique American conditions andthe importance of movable commercial property was something else again.Given the position New York occupied in its ability to influence the devel-opment of the common law in other states, what was at stake was nothing lessthan New York’s status as the provider of learned law for the new nation.

No one cared more about these aims and ambitions for New York lawthan James Kent, and, as we have seen, there are many good reasons forthinking that he was behind the decision to hold the case over and to turn itinto an occasion for a great debate. Yet, we have also seen that evidence as to


the precise nature of his involvement is elusive and that there is a generousdose of speculation in the story of his influence. As Pufendorf’s Englishtranslator, Kennett wrote (1703), one must be alive to the possibility that allone has managed to do is participate in the hunt and “mistake[n] the scent”(1). However, at least three things may be said with confidence at the end ofthe day. First, the New York Supreme Court was not required to deal with thefox case in the elaborate way it did. Second, someone involved in the case sawin it the opportunity to create a great debate. And, third, while circumstantialevidence points to Kent, we are unable to say with certainty that he was thedriving force behind the case, however well it lines up with his aims, interests,and ambitions for the bar and bench of New York state, the New YorkSupreme Court and its reports, and his own later work. Yet, as the annota-tions and treatment of the topic in the Commentaries amply demonstrate,Kent certainly took an intense interest in the case at a later date, therebyhelping pave the way to its future fame.

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CASES

Bebee v. Bank of New York, 1 Johns. 529 (NY Ct. Err. 1806).Brandt v. Ogden, 3 Cai. R. 6 (NY Sup. Ct. 1805).Cheviot v. Brooks, 1 Johns. 365 (NY Sup. Ct. 1806).Codwife and Ludlow v. Hacker, Cole & Cas, Cai. R. 401 (NY Sup. Ct., 1804).Colden v. Thurbur, 2 Johns. 424 (NY Sup. Ct. 1807).Curtis v. Groat, 6 Johns. 168, 170 (N. Sup. Ct. 1810).Delevan v. Baldwin, 3 Cai. R. 104 (NY Sup. Ct. 1805).Dennis v. Cummins, 3 Johns. 297 (NY Sup. St. 1803).Dewitt v. Schoonmaker, 2 Johns. 243 (NY Sup. Ct. 1807).Ferris v. Coles, 3 Cai.R. 207 (NY Sup. Ct. 1805).Frith v. Baker, 2 Johns. 327 (NY Sup. Ct. 1807).Griswold v. Waddington, 16 Johns. 438 (NY 1818).Hall v. Shultz & Shultz, 4 Johns. 240 (NY Sup. Ct. 1809).Henshaw v. M. I. Co., 2 Cai. R. 274 (NY Sup. Ct. 1805).Hinckley v. Boardman, 3 Cai. R. 134 (NY Sup. Ct. 1805).Jackson v. Chase, 2 Johns. 84 (NY Sup. Ct. 1806).Jackson v. Shepard, 2 Johns. 78 (NY Sup. Ct. 1806).Jackson v. Vredenbergh, 1 Johns. 159 (NY Sup. Ct., 1806).Keeler v. Adams, 3 Cai. R. 84 (NY Sup. Ct. 1805).Lawrence v. Sebor, 2 Cai. R. 203 (NY Sup. Ct. 1804).Leavenworth v. Delafield, 1 Cai. R. 573 (NY Sup. Ct. 1804).Ludlow v. Bowne and Eddy, 1 Johns. 1 (NY Sup. Ct. 1806).Newkerk and others v. Newkerk and others, 2 Cai. R. 345 (NY Sup. Ct. 1805).Palmer v. Mulligan, 3 Cai. R. 307 (NY Sup. Ct. 1805).Peck v. The Trustees of Randall, 1 Johns. 165 (NY Sup. Ct. 1806).Pelton v. Ward, 3 Cai. R. 73 (NY Sup. Ct. 1805).Penny and Scribner v. The NY Ins. Co., 3 Cai. R. 155 (NY Sup. Ct. 1805).The People v. Barrett and Ward, 1 Johns. 66 (N.Y. Sup. Ct. 1806).Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805).Post and La Rue v. Neafie, 3 Cai. R. 22 (NY Sup. Ct. 1805).Potter v. Lansing, 1 Johns. 215 (NY Sup. Ct. 1806).Robert v. Garnie, 3 Cai. R. 14 (NY Sup. Ct. 1805).Robinson v. N.Y. Ins. Co., 2 Cai. R. 357 (NY Sup. Ct. 1805).Ruan v. Perry, 3 Cai. R. 120 (NY Sup. Ct. 1805).Sands v. Codwise, 2 Johns. 485 (NY Ct. Errors 1807).Schoonmaker v. Trans., 2 Cai. R. 110 (NY Sup. Ct. 1804).

Pierson v. Post 335

Schuyler v. Van Der Veer, 2 Cai. R. 235 (NY Sup. Ct. 1804).Shadwick v. Phillips, 3 Cai. R. 129 (NY Sup. Ct. 1805).Smith and Delamater v. Richardson, 3 Cai. R. 219 (NY Sup. Ct. 1805).Tom v. Goodrich, 2 Johns. 213 (NY Sup. Ct. 1807).The United Ins. Co. of NY v. Robinson and Hartshorne, 2 Cai. R. 280 (NY Sup. Ct. 1805).Van Bramer v. Cooper, 2 Johns. 279 (NY Sup. Ct. 1807).Vrooman v. Phelps, 2 Johns. 177 (NY Sup. Ct. 1807).Ward v. Clark, 2 Johns. 10 (NY Sup. Ct. 1806).

ARCHIVAL DOCUMENTS

The Papers of James Kent, 1799–1808, Library of Congress, Washington, DC.[Letter A]. James Kent to Elizabeth Kent. May 7, 1805. Reel 2. Vol. 3.[Letter B]. Elizabeth Kent to James Kent. May 11, 1805. Reel 2. Vol. 3.[List of Books Read]. 1805. Reel 2. Vol. 3.

Kent Family Papers, Diaries and Notebooks, 1842–1843, Columbia University, New York,Butler Rare Book and Manuscript Library. Catalogue of his Library. Vol. 8.


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