LawsForAttorneys.com posts a perfect piece of perfect legal satire titled Shock permeates legal world as Pierson v. Post overturned.
In what can be billed as one of the most surprising decisions handed down in recent memory, the ruling in Pierson v. Post, one of the nation’s oldest property-law cases, was reversed this week by the Supreme Court of New York. The court’s reconsideration of the ruling was prompted by new evidence arising from an in-depth autopsy analysis that was performed last month on the remains of the fox at the heart of the famed case.
However, earlier this summer at the request of Broderick Post, great-great-great-grandson of Lodowick Post, the remains of the fox were exhumed and analyzed, at a personal cost of about $1 million. The long-overdue autopsy found conclusive evidence that, by the time Pierson had discovered the fox, it had already died of exhaustion from Post’s pursuit. Post then petitioned the court to have the case reopened.
All levity aside, this piece but illustrates the endurance of Locke’s Labor Theory. In this revised historical account, Post’s pursuit of the fox was the proximate cause of the fox’s death. Chasing the fox–and not physical capture–caused the fox to tire. This deprived him of his natural liberty, and signified capture.
However, the appellate court sided with Post, holding that the death of the ferae naturae (the fox) was proximately caused by Post’s chase. “The fatal exhaustion was the mortal wound that killed the fox,” wrote Justice Oring for the majority.
I discussed just this issue in an article I wrote (and am about to submit to the law reviews this month) titled OutFoxed: Pierson v. Post and The Natural Law (SSRN).
Pufendorf and Grotius required mancupation (physical occupation) in order to constitute possession of a wild animal. The jurists also permitted occupation by mortally wounding the animal, even in the absence of physical control. Under certain circumstances, a hunter can retain dominion of a wild animal, even if it escapes.According to Barbeyrac, physical mancupation is not always required to constitute dominion. Barbeyrac adopts a Lockean labor theory, and considers the value of mixing labor when determining whether property exists. Next, I analyze the crux of Pierson; can pursuit yield dominion? I find that Judge Tompkins, writing for the majority, narrowly construed Barbeyrac’s view of pursuit in order to resolve a split of opinion among the jurists, and rule in favor of Pierson, the interloper. I also find that Judge Livingston writing for the dissent, to his own detriment, also narrowly construed Barbeyrac, and conceded that pursuit cannot establish dominion. Barbeyrac can be read to create a possessory right in a hunter who pursues a fox, openly declaring his intent to seize the beast, such that others know about it. Therefore, the holding in Pierson was not necessarily consonant with all of the natural law authorities on point.
Under a Lockean theory of labor, also adopted by Barbeyrac, Post acquired title to the fox because of the labor he invested in the hunt. By contrast, the majority opinion–which was apparently overturned 200 years later–relied on Punfendorf’s conception of property,which required physical capture.
200 years later, Locke was vindicated!