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The Lost Record of Pierson v. Post, the Famous Fox Case

Published online by Cambridge University Press:  18 August 2010

Angela Fernandez
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Extract

Pierson v. Post is usually used in law school classrooms to introduce law students to the complexities of establishing possession in property law. The published appellate-level opinion is widely available from commercial judgment database services and has been reproduced in countless law school casebooks, with a first-page pride of place given to the case in such collections since at least 1915. In the words of one scholar, “[m[ost [property law] casebooks begin at the beginning by considering the original acquisition of property. Almost all books suggest possession is the root of title … A favorite place to start is the old case of Pierson v. Post.” According to another, Pierson v. Post is “the perfect case for giving students a taste of what it means to ‘think like a lawyer.’” It is an “old chestnut” if ever there was one. Indeed, it would be difficult to overstate the extent to which the case has been the subject of scholarly commentary.

Type
Forum: Pierson v. Post: Capturing New Facts about the Fox
Information
Law and History Review , Volume 27 , Issue 1 , Spring 2009 , pp. 149 - 178
Copyright
Copyright © the Board of Trustees of the University of Illinois 2009

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References

1. Pierson v. Post, 3 Cai. R. 175 (1805).

2. See Warren, Edward H., Select Cases and Authorities on the Law of Property (Cambridge, [Mass.]: The Editor, 1915), 1–3.Google Scholar Earlier non-first page appearances include: Pattee, William Sullivan, Illustrative Cases in Personalty (Philadelphia: T. & J. W. Johnson, 1893), 1:19–22Google Scholar(in a section on animals ferae naturae) and Lawson, John D., Select Cases in the Law of Personal Property: with Analysis and References to Other Cases (Columbia, Mo.: E. W. Stephens, 1896), 164–67Google Scholar(under “capturing wild animals”).

3. Singer, Joseph William, “Starting Property,” Saint Louis University Law Journal 46 (2002): 565, 566.Google Scholar See also, Morriss, Andrew P., “Review of Jesse Dukeminier and James E. Krier, Property (4th Edition 1998),” Seattle University Law Review 22 (1999): 997, 998–99Google Scholar(discussing the treatment of Pierson v. Post in this popular property casebook and referring to its treatment as “typical of the high quality of the casebook's supplemental material”).

4. Wendel, Peter T., “Using Property to Teach Students How to ‘Think Like a Lawyer’: Whetting Their Appetites and Attitudes,” St. Louis University Law Journal 46 (2002): 733, 735–36Google Scholar.

5. See Brown, Barry, “The Old Chestnut Explored: Thoughts about the Survival of Casner's Cases and Text on Property Long Past Its Prime,” Seattle University Law Review 22 (1999): 947Google Scholar.

6. See, e.g., Epstein, Richard A., “Possession as the Root of Title,” Georgia Law Review 13 (1979): 1221Google Scholar; Rose, Carol M., “Possession as the Origin of Property,” University of Chicago Law Review 52 (1985): 73CrossRefGoogle Scholar; Donahue, Charles Jr, “Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N.Y.,” in Studies in Roman Law: In Memory of A. Arthur Schiller, ed. Bagnall, Roger S. and Harris, William V. (Leiden: E. J. Brill, 1986), 39–63Google Scholar; Watson, Alan, “Introduction to Law for Second Year Law Students,” Journal of Legal Education 46 (1996): 430Google Scholar; Krier, James E., “Capture and Counteraction: Self-Help by Environmental Zealots,” University of Richmond Law Review 30 (1996): 1039Google Scholar; Dharmapala, Dhammika and Pitchford, Rohan, “An Economic Analysis of ‘Riding to Hounds’: Pierson v. Post Revisited,” Journal of Law, Economics & Organization 18 (2002): 39CrossRefGoogle Scholar; Smith, Henry E., “The Language of Property: Form, Context, and Audience,” Stanford Law Review 55 (2003): 1105.Google Scholar There are many more articles than this—pieces from the environmental law scholarship alone would constitute a small bibliography (these relate to “the rule of capture” and fugitive resources like oil and gas), as well as those relating to other animals like whales and wolves. There is also a noteworthy handful on baseballs and who owns them when they are hit into the stands.

7. Caines, George, New-York Term Reports: Or Cases Argued and Determined in the Supreme Court of that State [1803–1805] (New York: Printed for Isaac Riley, 1806), 3:175–82Google Scholar.

8. See McDowell, Andrea, “Legal Fictions in Pierson v. Post,” Michigan Law Review 105 (2007): 735Google Scholar(exploring a variety of nonsensical features in Livingston's dissent). Professor McDowell's work on the dissent, which I first heard at the American Society for Legal History Conference in Austin, Texas, October 2004, is what piqued my interest in the case.

9. Pierson v. Post, 3 Cai. R. 180.

10. Examples include Pattee, Lawson, and Warren, cited above in note 2.

11. Transcript of the Judgment Roll in Pierson v. Post. www.historycooperative.org/lhrindex. html. Quotes in the article with in-text citation to transcript, page numbers are to the diplomatic transcription located here.

12. Kent, James, Commentaries on American Law, vol. 2 (New York: O. Halsted, 1827)Google Scholar. See Fernandez, Angela, “Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State,” forthcoming in Law and Social Inquiry 34.2 (Spring 2009)Google Scholar.

13. See Hedges, H. P., “Pierson vs. Post,” The Sag-Harbor Express, Thursday, 24 October 1895Google Scholar, front-page, from which all quotes are taken. Hedges's account was reproduced in an abbreviated form in Adams, James Truslow, Memorials of Old Bridgehampton (Port Washington, Long Island, N.Y.: Ira J. Friedman, 1962, original copyright, 1916), 166–67,Google Scholar as well as Halsey, William Donaldson, Sketches from Local History (Southampton, N.Y.: Yankee Peddler Book Company, 1966), 131Google Scholar.

14. See Berger, Bethany, “It's Not About the Fox: The Untold History of Pierson v. Post,” Duke Law Journal 55 (2006): 1089, 1135Google Scholar.

15. See ibid., 1134.

16. See Fernandez, “Pierson v. Post: A Great Debate.”

17. This was at a presentation in January 2005 to the Legal History Group at the Faculty of Law, University of Toronto and the colleague was Stephen Waddams.

18. See Langbein, John H., “Chancellor Kent and the History of Legal Literature,” Columbia Law Review 93 (1993): 547CrossRefGoogle Scholar; Horton, John Theodore, James Kent: A Study in Conservatism, 1763–1847 (New York; London: D. Appleton-Century, 1939).Google Scholar See also Watson, Alan, “Chancellor Kent's Use of Foreign Law,” in The Reception of Continental Ideas in the Common Law World, 1820–1920, ed. Reimann, Mathias (Berlin: Duncker & Humbolt, 1993), 45–62Google Scholar; Raack, David W., “‘To Preserve the Best Fruits’: The Legal Thought of Chancellor James Kent,” American Journal of Legal History 33 (1989): 320CrossRefGoogle Scholar; Stychin, Carl F., “The Commentaries of Chancellor James Kent and the Development of an American Common Law,” American Journal of Legal History 37 (1993): 440CrossRefGoogle Scholar; Alexander, Gregory, Commodity and Propriety: Competing Visions of Property in American Thought, 1776–1970 (Chicago & London: University of Chicago Press, 1997), 127–57CrossRefGoogle Scholar; Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 274–302Google Scholar.

19. See Robertson, Lindsay G., Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005), 29–36, 74CrossRefGoogle Scholar(explaining how the taint of suspicious pleadings in Fletcher v. Peck, a collusive case made up for the purpose of obtaining a United States Supreme Court ruling, infected the course of Johnson v. M'Intosh).

20. Pierson v. Post, 3 Cai. R. 180.

21. Ibid., 177.

22. See Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West, 1990)Google Scholar, s.v. “writ” and “certiorari.” See also Folts, James D., “Duely and Constantly Kept”: History of the Supreme Court of Judicature, 1691–1847, and an Inventory of its Records (Albany, Utica, and Geneva Offices), 1797–1847 (Albany: New York State Court of Appeals & the New York State Archives and Records Administration, 1991), 21Google Scholar(the writ of certiorari was used “to remove judgments in justice's civil courts directly to the Supreme Court for review … A party seeking review by certiorari was required to submit an affidavit stating the grounds for the writ. Based on the affidavit, the Supreme Court justice could allow the writ upon reasonable cause, ‘either for error therein or some unfair practice of the justice’”). A PDF copy of this resource is available at http://www.courts.state.ny.us/history/pdf/Library/Research/Duely_and_Constantly_Kept.pdf (last visited November 6, 2007). Page numbers correspond to topics as they are listed in the table of contents in this electronic version.

23. Bouvier, John, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union, with References to the Civil Law and other Systems of Foreign Law (Philadelphia: T. & J. W. Johnson, 1839; reprint, New York: The Lawbook Exchange, 1993), 1:163Google Scholar.

24. See, e.g., “Duely and Constantly Kept,” Appendix, B, “Suggestions for Locating Case Papers,” 54Google Scholar.

25. See McDowell, , “Legal Fictions in Pierson v. Post,” 740 n.14Google Scholar.

26. This was again a suggestion from Stephen Waddams.

27. Suffolk Gazette, Monday, 9 September 1805, p. 3. The notices contained the following remark: “In the first page of this paper a mistake occurred in the date; instead of September 9, it should be September 16.” However, notwithstanding this correction, the paper would be indexed in any collection under September 9.

28. Caines, George, A Summary of the Practice of the Supreme Court of the State of New York (New York: Isaac Riley, 1808), 1:2Google Scholar(“February and August terms are held in Albany; May and November, in New-York”). Early American Imprints, Series II: Shaw-Shoemaker 1801–1819. Shaw & Shoemaker 14628. Record Number: 104404614FA58DE0; w274778. American Antiquarian Society and NewsBank, 2004. http://infoweb.newsbank.com (accessed October 10, 2007).

29. See “Duely and Constantly Kept,” 12.

30. See Griffith, Michael, “[Review of] ‘Duely and Constantly Kept’: A History of the New York Supreme Court, 1691–1847, and An Inventory of Its Records (Albany, Utica, and Geneva Offices), 1797–1847 by James D. Folts,” The Public Historian 14.3 (1992): 127–29, 129Google Scholar.

31. Law Judgment #1805 P-33.

32. The database, “Law Judgments, 1799–1910,” is one of four databases based on the index cards at the Division of Old Records, 31 Chambers Street, Room 703 in Manhattan. Email to the author from Bruce Abrams, December 13, 2007. For a description of the database project and the other indexes it contains, see Abrams, Bruce and Luft, Edward, “Rough Guide to Index Databases of Historical Records in Office of New York County Clerk” [forthcoming in Dorot: The Journal of the Jewish Genealogical Society]Google Scholar.

33. See Halsey, , Sketches from Local History, 14Google Scholar(noting that the spelling of the name of the first Town Clerk, Henry Peirson, was “[l]ater changed to Pierson”). See also 34 (where school records have Jesse spelled both ways, along with many other “Peirsons”). Another variation on Jesse's name in particular is “Jessee Pearson,” used in the 1800 Suffolk County Census, available at http: //www.rootsweb.com/~nysuffol/1800csh.html (last visited June 11, 2008). Yet another variation is “Person.” See Tracing the Past: Writings of Henry P. Hedges, 1817–1911, relating to the history of the East End, ed. Twomey, Tom (New York: Newmarket Press, 2000), 59Google Scholar.

34. Email to the author from Bruce Abrams, December 13, 2007. Mr. Abrams wrote further to me: “As far as I know, you are the first researcher to obtain copies of this case, at least in my 23 years here.”

35. The use of “high” and “low” in this context is a variation on, but not the same as, that used by Douglas Hay and Paul Craven in their work on master and servant law. See “Introduction” to Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, ed. Hay, Douglas and Craven, Paul (Chapel Hill: University of North Carolina Press, 2004), 1–58.Google Scholar I use it to refer both to justice of the peace proceedings, as well as appellate treatment devoid of elaborate, scholarly reasoning, or indeed, in the case of this record, any reasoning at all.

36. See “Duely and Constantly Kept,” Appendix E, “Supreme Court Clerks (1797–C1847),” listing clerks, offices, and years of service, 59. See also Caines, , A Summary of the Practice of the Supreme Court of the State of New York, 3Google Scholar(listing Fairlie and Bloodgood as clerks on the court on a sample writ).

37. The handwriting deviates in the sideways marginal text stating the disposition, “Judgment signed the 10th day of September …” (Transcript, p. 19). This is in the same hand as at least one other place in the text where an addition to the document has been made (see at Transcript, p. 7).

38. Hedges referred in his account to Post's “companions,” who were hunting with him. Perhaps these were the witnesses. See Hedges, Sag Harbor Express.

39. Pierson v. Post, 3 Cai. R. 180.

40. See Cowen, Esek, A Treatise on the Civil Jurisdiction of a Justice of the Peace, in the State of New York (Albany: W. M. Gould, 1821), 320.Google Scholar The Making of Modern Law. Gale. 2007. Thomson Gale. 08 November 2007 http://galenet.galegroup.com/servlet/MOML?af=R N&ae=F105917386&srchtp=a&ste=14. Document number F105917386. Thanks to Donald Roper for his direction to this source.

41. Ibid., 302.

42. Ibid.

43. “Duely and Constantly Kept,” Appendix, C, “Inferior Courts of Law,” 55Google Scholar.

44. Ibid., 18.

45. More generic descriptions of a judgment roll identify it as the document filed by the clerk of the court. See, e.g., Black's Law Dictionary, s.v. “Roll” (“Judgment roll. Such is required to be filed in certain states by the clerk when he enters judgment. It normally contains the summons, pleadings, admissions, and each judgment and each order involving the merits or necessarily affecting the final judgment”). This roll might have been prepared by Sanford with some spots filed by the New York City clerk, James Fairlie. Francis Bloodgood was the clerk in the Albany office. The text in the record that is in a different handwriting at a few select places (see at Transcript, pp. 4, 7) would then likely be Fairlie's.

46. “Duely and Constantly Kept,” 18.

47. Compare with image of 1818 judgment roll, ibid.

48. See Caines, , A Summary of the Practice of the Supreme Court of the State of New York, 147Google Scholar(indented across from the name of the court: “Pleas before the Justices of the People of the State of New York, of the Supreme Court of Judicature of the same people at the City-Hall of the City of New York, of November term, in the year of our Lord one thousand eight hundred and seven. Witness, James Kent, Esquire, Chief Justice. Fairlie and Bloodgood”).

Compare with Transcript, p. 1 (“Pleas before the Justices of the People of the State of New York of the Supreme Court of Judicature of the same People at the City hall of the City of New York of the term of May in the year of our Lord one thousand eight hundred and three. Witness Morgan Lewis Esquire Chief Justice. Fairlie and Bloodgood”).

49. Caines, George, Practical forms of the Supreme Court taken from Tidd's Appendix of the forms of the Court of King's bench, in personal actions, and adapted to the Supreme Court of the state of New-York (New York: Alsop, Brannon and Alsop, 1808), 41–42, 53–54.Google Scholar Early American Imprints, Series II: Shaw-Shoemaker 1801–1819. Shaw & Shoemaker 14627. Record Number: 104404614BD07D88; w274777. American Antiquarian Society and News-Bank, 2004. http://infoweb.newsbank.com (accessed October 10, 2007).

50. Pierson v. Post, 3 Cai. R. 177.

51. See, e.g., Donahue, “Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N.Y.”; Berger, “It's Not About the Fox” 1134. Both lawyers in the case had connections to Flushing, Queen's. Cadwallader David Colden was from Flushing (see *note Transcript, p. 14). Nathan Sanford built a “marble-adorned mansion” there. See Berger, “It's Not About the Fox,” 1134 n.260. However, this appeared to be later in life. See Roper, Donald M., “The Elite of the New York Bar as Seen from the Bench: James Kent's Necrologies,” The New York Historical Society Quarterly 56 (1972): 199, 230Google Scholar(James Kent wrote that Sanford “spent his last years in building a most extravagantly expensive but inconvenient House”).

52. See 1800 Suffolk County Census.

53. “Duely and Constantly Kept,” Appendix, C, “Inferior Courts of Law,” 55Google Scholar.

54. Fordham referred to the statute as “an Act of the Legislature of the State of New York entitled an Act for the more speedy recovery of debts to the value of twenty-five dollars passed the seventh day of April one thousand eight hundred and one” (Transcript, p. 3). The statute was published as An Act for the more Speedy Recovery of Debts, to the Value of Twenty-Five Dollars, passed 7th April, 1801 (Albany: Printed by Charles R. and George Webster, 1802).Google Scholar Early American Imprints, Series II: Shaw-Shoemaker 1801–1819. Shaw & Shoemaker 2770. Record Number: 104404E10019A280; w283058. American Antiquarian Society and NewsBank, 2004. http://infoweb.newsbank.com (accessed December 9, 2007). S. 12 of the Twenty-Five Dollar Act sets out that either party can request trial by jury and describes the process to be followed. Fordham follows much of the language in this section in the account he provides.

55. See Suffolk County Census (“Thomas L. Harris”).

56. See s. 12, Twenty-Five Dollar Act (setting out that the venire should “summon twelve good and lawful men, being freeholders … who shall be in no wise of kin to the plaintiff or defendant, nor interested in such suit”).

57. Of these twelve, nine seem to be listed in the 1800 Suffolk County Census: John F. Havens (listed there as “Jonathan Havens”), William R. Halsey (there are two ”William Halsey” listed), John Norris, Thomas Beebe (spelled there “Beebee”), Silas Havens, Theophilus Cook, Charles Douglass, Isaac Jessup, and James Sayre.

58. Irregular spelling of names left as is.

59. S. 12, Twenty-Five Dollar Act.

60. The Twenty-Five Dollar Act set out swearing of the jury at 12.5¢. It also set out the charge of each juror's fee at 12.5¢, to make a total charged here of 75¢ for 6 jurors. See s. 21, Twenty-Five Dollar Act.

61. Under s. 21 of the Twenty-Five Dollar Act, each oath cost 6¢, each subpoena 6¢, each witness attending and sworn 12.5¢, and each subpoena sent to a witness 12.5¢. Subpoenas for five witnesses would therefore be 30¢ and service of these would be 62.5¢, for a total of 92.5¢. Fordham seemed to overcharge then by 3.5¢. Seven witness oaths would cost 42¢ and witness fees would be 87.5¢, what Fordham charged.

62. This charge then should have been 36¢ not 37.5¢, since jurors who attended and were not sworn cost 6¢ each under the statute. See s. 21, Twenty-Five Dollar Act.

63. Both of these charges were set out under s. 21 of the Twenty-Five Dollar Act.

64. The summons was charged at 9.5¢ when the statute put it at 9¢. The constable serving the summons was supposed to cost 12.5¢, 6¢ for each additional mile the constable was required to travel. If the cost here was 69¢, then presumably Pierson lived at a distance of 9.4 miles. See s. 21, Twenty-Five Dollar Act.

65. Of the other items listed, the other one not authorized by this section of the statute is a charge for swearing evidence at 42¢. When added to the swearing the constable 6¢, this, plus the overcharges for other items set out above, totaled 53.5¢.

66. See Caines, , A Summary of the Practice of the Supreme Court of the State of New York, 5Google Scholar.

67. Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 639.Google Scholar I am unable to find this specifically set out in the 1801 version of the act. Cowen might be referring to a later version of the statute, or, as he cites a case to support the proposition, it might be that this case read the general proposition into the more specific language of s. 11, the provision Cowen identified.

68. S. 21, Twenty-Five Dollar Act.

69. Hugh Gelston is also in the 1800 Suffolk County Census. The record refers to “Hugh Gelston [?Junr?], “which I take to be “Junior,” although he is not listed in this way in the census.

70. Lawrence H. Officer and Samuel H. Williamson, “Purchasing Power of Money in the United States from 1774 to 2006” (MeasuringWorth.Com, 2007), using the calculators for measuring the worth of money over time, available at http://measuringworth.com/calculators/ppowerus/.

71. S. 20, Twenty-Five Dollar Act.

72. See Smith v. Goodrich, 5 Johns. R. 353 (1810), cited for the proposition in Brown, Samuel R., The Justices' directory, or points on Certiorari, being a digest of the cases reported by Johnson and Caines by a Gentleman of the Bar (Ballston Spa [New York]: John Howe, 1813), 11.Google Scholar The Making of Modern Law. 2008. Gale. Gale, Cengage Learning. 30 April 2008 http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F105002513&srchtp=a&ste=14 Gale Document Number F105002513. I have not been able to determine when attorneys began to be allowed to appear in courts of justices of the peace in New York. However, they are certainly there by the time that Cowen writes his book in 1821. See A Treatise on the Civil Jurisdiction of a Justice of the Peace, 291 (“All persons of full age may, if they choose, appear in this court by attorney”).

73. Emphasis added to these quotes.

74. See Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 426Google Scholar.

75. Pierson v. Post, 3 Cai. R. 175.

76. Hedges, Sag Harbor Express.

77. Ibid.

78. McDowell, , “Legal Fictions in Pierson v. Post,” 739Google Scholar(hunting to hounds “was practiced only south of New England[,] up to and including New York City and Eastern Long Island. New Englanders disapproved of the elaborate form of the sport”), 744 (“New Englanders … disapproved of hunting for sport as wasteful and self-indulgent”), 763–64 (on foxhunting in Westchester, Long Island, and Manhattan and New Englanders resistance to doing it in style).

79. See Bonomi, Patricia U., A Factious People: Politics and Society in Colonial New York (New York and London: Columbia University Press, 1971), 22–24Google Scholar.

80. Hedges, Sag Harbor Express.

81. See, e.g., Halsey, , Sketches from Local History, 74Google Scholar(describing David Pierson's role as captain of a company of soldiers from Southampton known as “the Minute Men of Bridgehampton”). See also Berger, , “It's Not About the Fox,” 1123–25Google Scholar(tracing prominence of the Pierson family in the town's history).

82. Hedges, Sag Harbor Express.

83. See “Map Extending from Water Mill to Wainscott About the Year 1800, Compiled by William Donaldson Halsey [and] Drawn by George H. Baldwin, 1924[,] Bridgehampton N.Y.,” in Halsey, Sketches from Local History, Appendix.

84. See, e.g., ibid., 109.

85. See “Map Extending from Water Mill to Wainscott About the Year 1800,” ibid., Appendix.

86. Hedges, Sag Harbor Express.

87. See Berger, “It's Not About the Fox,” 1125–33.

88. See McDowell, , “Legal Fictions in Pierson v. Post,” 764–65, 762Google Scholar.

89. See Halsey, , Sketches from Local History, 9–12Google Scholar.

90. McDowell, , “Legal Fictions in Pierson v. Post,” 765Google Scholar.

91. If Cowen is a good indicator, malice did not seem to have been a standard pleading form. When it is used (outside the context of malicious prosecution) it appears as a qualifier of behavior in an ordinary action. For instance, a “willful and malicious” trespass could have consequences in terms of the execution of a judgment. See Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 654–55Google Scholar.

92. Pierson v. Post, 3 Cai. R. 180.

93. Donahue, , “Animalia Ferae Naturae: Rome, Bologna, Leyden, Oxford, and Queen's County, N.Y.,” 47–48.Google Scholar See also Charles Donahue, Jr., “Noodt, Titius, and the Natural Law School: The Occupation of Wild Animals and the Intersection of Property and Tort,” in Satura Roberto Feenstra, ed. Ankum, J. A., Spruit, J. E., and Wubbe, F. B. J. (Fribourg: Presses Universitaires Fribourg Suisse, 1985), 609–29, 611Google Scholar.

94. McDowell, , “Legal Fictions in Pierson v. Post,” 738.Google Scholar See also 770–72, discussing malicious interference and the Keeble v. Hickeringill case.

95. “Duely and Constantly Kept,” Appendix A, “Forms of Action, at Common Law,” 50.

96. See Simpson, A. W. B., “The Timeless Principles of the Common Law: Keeble v. Hickeringill (1707),” in Leading Cases in the Common Law (Oxford: Oxford University Press, 1995), 45–75, 64Google Scholar.

97. McDowell, , “Legal Fictions in Pierson v. Post,” 763Google Scholar.

98. Ibid., 738.

99. The jurisdiction was expanded to $50 in matters litigated and $100 upon confession in 1818. See Cowen, , Preface to A Treatise on the Civil Jurisdiction of a Justice of the Peace, iii.Google Scholar The two primary jurisdictional divisions in the work were the Twenty-Five Dollar Act and the Fifty-Dollar Act.

100. Offutt, William M. JrOf “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680–1710 (Chicago: University of Illinois Press, 1995), 123Google Scholar(“The fee structure made this contest before a jury a potentially costly gamble. Summoning and swearing jurors, calling and recording witnesses, and recording the verdict were additional costs not usually present in an uncontested or even a contested bench proceeding”).

101. Cowen, , Preface to A Treatise on the Civil Jurisdiction of a Justice of the Peace, iiiGoogle Scholar.

102. See Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginian Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina Press, 1981), 33–34Google Scholar.

103. Ibid., 57.

104. Ibid., 113.

105. Ibid., 168, 190, 176.

106. See ibid., 235 (referring to Jefferson's famous defense of an “aristocracy of talent,” which did not go unnoticed or uncontested—“The replacement of familial oligarchies with cerebral and professional cabals struck many Virginians as thoroughly suspect”); 236–37 (on Tucker's, edition of Blackstone's Commentaries); 239Google Scholar(Jefferson and his mentor Wythe on education); 255 (“What had such a ‘professional’ and elitist argument to do with republicanism?”); 257 (“a system of law [that] naturally promoted the interests of an elite profession of lawyers … had to justify itself within the Country tradition of Virginia's past”).

107. On lay justice generally, see Dawson, John P., A History of Lay Judges (Cambridge: Harvard University Press, 1960)CrossRefGoogle Scholar.

108. “Duely and Constantly Kept,” 20.

109. Cowen, , Preface to A Treatise on the Civil Jurisdiction of a Justice of the Peace, vGoogle Scholar.

110. Roeber, , Faithful Magistrates and Republican Lawyers, 18Google Scholar.

111. Quoted in ibid.

112. Van Patten v. Ouderkirk, 2 John. Cases 108 (1800), cited for the proposition in Brown, , The Justices' directory, or points on Certiorari, 41.Google Scholar Also quoted and cited in Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 683Google Scholar.

113. Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 680.Google Scholar Cowen sets out a sample return and explains various other obligations of the justice of the peace, e.g., to return and affix the affidavit of the party requesting the writ. See 681–84.

114. Pierson v. Post, 3 Cai. R. 180.

115. See s. 2, Twenty-Five Dollar Act (the summons or warrant shall be “directed to some constable or other proper officer of the city or town where the defendant dwells, or can be found”).

116. See Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 248Google Scholar(emphasis added); s. 12, Twenty-Five Dollar Act.

117. Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 252Google Scholar(“The defendant must be summoned at a time and place to be expressed in the summons, not less than six, nor more than twelve days, from the time of issuing the summons”). See s. 2, Twenty-Five Dollar Act.

118. This might well be yet another variation on the spelling of “Jesse Pierson.” See note 33.

119. As Cowen explained, a summons could be served by reading it to the defendant, and if he required it by delivering him a copy. It could also be served by leaving a copy at the defendant's house in the presence of a family member, who would be informed of its contents. See A Treatise on the Civil Jurisdiction of a Justice of the Peace, 271. See also, s. 3, Twenty-Five Dollar Act.

120. Pierson v. Post, 3 Cai. R. 175.

121. See Cowen, , A Treatise on the Civil Jurisdiction of a Justice of the Peace, 530Google Scholar.

122. See above, notes 60, 61, and 64.

123. Jones and Crawford v. Reed, 1 Johns. Cas 20 (1799), partially quoted in Brown, , The Justices' directory, or points on Certiorari, 42Google Scholar.

124. See Caines, , A Summary of the Practice of the Supreme Court of the State of New York, 147Google Scholar n.3 (a note next to the term in the introductory heading of a roll entry stating that this is to be “[t]he term in which you make up your roll”).

125. See, e.g., Caines, , Practical forms of the Supreme Court, 18–19, 51Google Scholar.

126. See, e.g., Hedges, Sag Harbor Express (“It was said the costs amounted to a thousand pounds [on] each side; at that day an enormous sum and justifying the facetions [sic] epigram of one of my name and kin, ‘Law is costive’”). If this rumored amount included the lawyers' fees, £1000 might not have been such a wild exaggeration.

127. Pierson v. Post, 3 Cai. R. 175.

128. Officer and Williamson, “Purchasing Power of Money in the United States from 1774 to 2006.”

129. Pierson v. Post, 3 Cai. R. 180.

130. Ibid., 177.

131. See, e.g., Halsey, , Sketches from Local History, 184–85Google Scholar(for a sketch of Sanford, calling him “the most distinguished and eminent man ever born in the limits of the town of Southampton, Long Island”); “Map Extending from Water Mill to Wainscott About the Year 1800,” in Halsey, Sketches from Local History, Appendix (house of Nathan “Sandford” located in Scuttle Hole north of Bridgehampton).

132. I have been unable to ascertain what was happening in the Riverhead courthouse on either September 10 or September 18, 1805. Riverhead is not among the locations for which there are minute books in the Albany archives (email to the author from New York State Archives, Reference Services, August 13, 2008). Minute books for sessions of the New York Supreme Court held by the Suffolk County Clerk's Office do not begin until the late 1840s (email to the author from Sharon Pullen, August 15, 2008).

133. Brown, The Justices' directory, or points on Certiorari.