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Papyrology and 3 Caines 175
Published online by Cambridge University Press: 18 August 2010
Extract
Those who work with the papyri or stone inscriptions from the ancient world frequently are faced with incomplete texts. Papyrologists or epigraphers will attempt to fill in the missing parts of the text, relying on their knowledge of what similar documents say. Sometimes a later find will provide a missing piece. Experience with such finds has been that an expert reconstruction normally will get the basic sense of the document right, but rarely gets the exact wording right when anything more than a few letters needs to be filled in.
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References
1. Pierson v. Post, 3 Caines 175 (N.Y. Sup. Ct. 1805).
2. Ibid. at 177.
3. Donahue, Charles, Kauper, Thomas, and Martin, Peter, Cases and Materials on Property, 3rd ed. (St. Paul: West Publishing, 1993), 8.Google Scholar
4. Adams, James Truslow, Memorials of Old Bridgehampton (Bridgehampton, 1916; repr., Port Washington, N.Y.: I. J. Friedman, 1962), 166, 319, 364Google Scholar (relying on an account by H. P. Hedges, published in 1895 in a local newspaper).
5. http://en.wikipedia.org/wiki/Nassau_County,_New_York; http://en.wikipedia.org/wiki/Suffolk_County,_New_York; (last visited 4/11/08).
6. Frank, Jerome, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949; repr. 1973), 74–77.Google Scholar
7. http://en.wikipedia.org/wiki/Cadwallader_D._Colden (last visited, 4/11/08).
8. He died in October, 1803. See Berger, Bethany, “It's Not About the Fox: The Untold History of Pierson v. Post,” Duke Law Journal 55 (2006): 1135.Google Scholar Professor Berger has convinced me that my speculation that the Posts were “probably of Dutch descent” is almost certainly wrong. What divided the Piersons and the Posts was much more complicated than that, but it “was not about the fox.”
9. 3 Caines, at 175.
10. It is perhaps not quite technically a “declaration,” as Caines calls it (a document that normally implies a preceding bill of Middlesex and/or latitat), but it is close enough.
11. Fernandez, Angela, “The Lost Record of Pierson v. Post,” Law and History Review 27 (2009): 165.CrossRefGoogle Scholar
12. Ibid., 168.
13. Ibid, 167.
14. Keeble v. Hickeringill, 11 East 574, 103 Eng.Rep. 1127 (K.B. 1707). 11 East was not published until 1815, and previous reports are unreliable. This fact may have affected both the advocacy and the result in Pierson. The majority opinion, relying on older reports, distinguishes Keeble on grounds that are not viable if we rely on East's report (which is said to have been taken from Holt's own manuscript). 3 Caines, at 179.
15. See Simpson, A. W. B., “The Timeless Principles of the Common Law: Keeble v. Hickeringill (1707),” in Leading Cases in the Common Law (Oxford: Clarendon Press, 1995), 64.Google Scholar For an argument distinguishing Keeble on policy grounds, see Krier, James E., “Capture and Counteraction: Self-Help by Environmental Zealots,” University of Richmond Law Review 30 (1996): 1045–52Google Scholar.
16. Angela Fernandez, “The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent,” http://ssrn.com/abstract=984163 (last visited, 4/11/08).
17. 3 Caines, at 180.
18. This is drawn from the fourth assignment of error in the record. Transcript, pp. 12–13. The one that I had imagined was that the justice held court in his living room rather than in a courthouse. The record shows that the justice did hold court in someone's living room (not his own), but Sanford did not assign this as error.
19. 3 Caines, at 177.
20. Fernandez, , “The Lost Record of Pierson v. Post,” 177.Google Scholar
21. Transcript, p. 9.
22. 3 Caines, at 175–76.
23. Sanford was no country bumpkin. He became the U.S. District Attorney for New York in 1803. Berger, , “It's Not About the Fox,” at 1134.Google Scholar But, in a way, they were all country bumpkins. If Donahue, Charles, “Noodt, Titius, and the Natural Law School,” in Satura Roberto Feenstra, ed. J. A. (Hans) al, Ankum et. (Fribourg: Éditions universitaires, 1985), 609Google Scholar, has it right, the eighteenth-century natural-law writers all sided with Barbeyrac (and Locke), and, hence, with Post. As a piece of natural-law jurisprudence, Pierson v. Post is more than a hundred years out of date.