European Legal History: Natural Law School & Beyond

Continental European Constitutional and Legal History: The Natural Law School and Beyond, Pierson v. Post Lecture 21 Click here for a printed outline.

Outline of legal thought: 17th and into 18th centtury Let us begin by saying a few words generally about the massive list of names and schools of thought on the outline. The number of names here gets very large. Although most of the most important figures are mentioned here, the selection below the level of the absolute first rank is based on the fact that they all had something interesting to say about a particular problem related to the capture of wild animals, to which we will devote most of the lecture.

Outline of legal thought: 17th and into 18th century (contd) One way to get into this material is to say something about the development of international law. The problem of the justification for the conquest of the Indies troubled Spanish writers in the 16th century, and writers in the same country made a considerable contribution to political thought in Europe at the end of the sixteenth and the beginning of the seventeenth centuries. Such writers as Victoria and de Soto had a considerable amount to say about the relations between nations, as they sought to work the problem of the conquest of the Indies. Suarez and others of the later Spanish scholastics seemed to be prepared to accept the notion of the nation-state, but they retained a firm commitment to the idea of natural law. Indeed, natural law was the governing force in international relations, along with international custom (which is how Suarez distinguishes ius naturale from ius gentium). The first writer in the north to pick up these ideas was Hugo Grotius, and his ideas owe much to his Spanish predecessors. He is, for example, the first clear articulator of the principle of eminent domain, that the state may take private property for public use but only on the payment of just compensation.

Outline of legal thought: 17th and into 18th century (contd) It is not really until the end of the 17th century that positivistic ideas begin to make their appearance in writers on international law. Cornelis van Bijnkershoeck was one of the first. The positivistic line then passes to Vattel in the mid-eighteenth century, who, though he was strongly influenced by the naturalists, particularly Wolff, was a diplomat rather than an academic and thus is continually qualifying his statements of theory with remarks on how it really works. While we are on the topic of Spanish influence, we also ought to note that theory was not the only long suit of the Spanish writers of the Golden Age. Thomas S nchez s treatise on matrimony became a standard work wherever Roman Catholic canon law was still in effect, and it was also used in places where the Tridentine decrees were not in effect. Covarruvias writings on the ius commune were read and cited by a number of 17th century Dutch jurists. This is not surprising considering the presence of Spain in the Low Countries. But the point is broader than that. Anyone who wrote on law in Latin could and would be read by anyone else who was an academic. Books on the learned law in Latin circulated widely in Europe even in the 18th century. Religion and national lines were still not great barriers. This point has been strikingly reinforced by a recent book on the canon law in England. The English canon lawyers of the early modern period cite Protestant and Catholic authors indiscriminately.

Outline of legal thought: 17th and into 18th century (contd) Now let us take a look at the way in which we have divided up the legal world of the 17th and 18th centuries. Because most of the histories of the law of this period have been written from a national point view, there is a tendency to ignore the transnational character of much that was done. Nonetheless, it is striking how the schools seem to migrate from region to region, at least as to where the important work was being done. The late 16th and early 17th centuries belong to Spain. France, as we have seen, is still very important in this period. With Grotius the lead passes from Spain to the Low Countries. In the second half of the 17th century, the French lose their steam, though Domat is a notable exception; the Spanish virtually disappear from the international scene, and the Italians turn their attention more to legal philosophy than to law. The name to remember here is Giambattista Vico (1668 1744), whom I ve classified as a natural lawyer but who really defies classification. The Germans become prominent late in the 17th century and remain so throughout the 18th century, though they have to share the laurels with the Dutch in the first part of the 18th century. Burlamaqui and Vattel were both Swiss. Barbeyrac, though he was born in France, was a Protestant emigr . He taught at Lausanne in Switzerland and at Groningen in the Netherlands. .

Outline of legal thought: 17th and into 18th century (contd) Let us now take a look at the divisions. There is no sharp line between the natural lawyers and the international lawyers. They cite one another s works. They all have a profound knowledge of antiquity which they inherit from the humanists. They largely agree that the division between ius naturale and ius gentium is that the former deals with basic principles of law that are applicable in all places and in all times whereas the latter deals with relations between nation states. The positivistic strand that comes into the international law tradition rather late is, at first, based more on the notion of custom than it is on treaties, the other possible source of positive international law once one recognizes the notion of national sovereignty. .

Outline of legal thought: 17th and into 18th century (contd) A number of the authors wrote both about international law and the law of nature. Though Grotius De jure belli et pacis seems from its title to be a work exclusively about international law, in fact it contains a great deal about natural law, as well. Christian Wolff, whom I have listed as an international lawyer, also wrote an early treatise entirely on the law of nature. The division is really one of convenience. If a work has a title that contains the words ius gentium, it is likely to have a large amount in it about peace and war, treaties, ambassadors, freedom or lack of it of the seas, trading between nations. If the work is exclusively entitled ius naturale, it is likely to do with the basic principles of contract and commerce, the origins of property, marriage, and slavery, in short, it is likely to deal more with the topics that we call civil law.

Outline of legal thought: 17th and into 18th century (contd) Now what is this stuff all about? One way of looking at it is to see it as the logical extension of what the humanists had done. The humanists pointed out that much that went under the name of Roman law in the Bartolist tradition was far away from anything that the Romans would have recognized as law. As we have seen there could be a number reactions to this proposition. One of them, which leads, in my view, straight into the enterprise of the natural law school of the 17th and 18th centuries, was to raise the argument to a higher level of generality. The Roman rules of property may not be quite the same as those of 15th and 16th century Italy, and Justinian s writ certainly does not run in France or in the Low Countries, but the Romans talk about property and so do we. What are the common principles that inform this institution of property? Can they be seen to be universal, either by abstract reasoning or by examining what we know other societies? Hence, the natural lawyers all deal with the basic texts of Roman law, and to some extent of canon, but their notion of authority has changed. Their effort is one to find the basic principles. We suggested in the last lecture that this may be seen as relating to philosophical ideas of the period, ideas that placed a heavy emphasis on the reality of abstract ideas and on mathematical deduction of propositions from basic principles.

Outline of legal thought: 17th and into 18th century (contd) None of the natural lawyers suggests that there should be direct application of their law to the practical law of the day, though they are frequently found criticizing the law of the day when it does not correspond to their notion of natural law. But the world has to go on, and disputes have to be resolved. How is this to be done when so much time in the academy is being devoted to natural law? Hugo Grotius not only wrote a great treatise on international law, he also wrote the first modern book on the custom of Holland, the Inleiding tot de hollandsche rechtsgeleerdheyt, Introduction to the Legal Science of Holland, in which, needless to say, many of his general ideas are found, but in which he also expounded customary law. In this regard the work of Grotius is much like that of Guy Coquille in France. Practical jurisprudence in the Northern Netherlands, however, takes a rather odd turn in the 17th century. We should remember that the United Provinces were not very united. They weren t even united linguistically, the northeast being a Frisian-speaking area, and the east containing areas where various dialects of low German were spoken. There was, however, one major center of legal studies, Leiden. And what the students studied at Leiden was Roman law. The resulting mix of Roman law and common elements in the customary law, known as Roman-Dutch law, is still in effect for some purposes in South Africa today.

Outline of legal thought: 17th and into 18th century (contd) The practitioners of what is called elegant jurisprudence in the 17th century are interestingh. Some of them, like Gerardus Noodt, basically follow the line of French editors of texts, like the Pithou brothers in the 16th century or the Godefrois in the 17th, Noodt s effort is basically one of reconstructing Roman law and Roman legal ideas. We will see when we come to his work specifically that he regarded this work as important because it allowed him to recover principles that he thought were important, and in this regard his aim was much like those of the contemporary natural lawyers, though he used a very different method. Others of them, Johannes Voet is probably the best known, but there are number of others, including Tuldenus who operated in the southern Netherlands rather than the northern, were more interested in creating a workable system of law for the low countries of their day. In this regard their effort can be regarded as similar to Bartolus , except that unlike Bartolus for the most part, they didn t just say that the custom was different, they showed what it was and how it was different. Their work differed from that of the French institutional writers, in that they took, by and large, the Digest rather than the Institutes as their base text, and they tended to introduce the customary elements as they were expounding the basic Roman law, rather than, as the French writers had, introducing the Roman law after the custom had been expounded.

Outline of legal thought: 17th and into 18th century (contd) The same development happened in Germany, though a bit later. In Germany a law professor named Samuel Stryk (1640 1710) coined the phrase usus modernus pandectarum (1690). There were many who followed in his style. Gottlieb Gerhard Titius will play a prominent role in the story of wild animals we are about to tell; Augustin Leyser would rank high on anyone s list of the important jurists of the 18th century. Leyser is particularly notable for the use that he makes of case decisions of the German courts in his chief work, which is, however, entitled Meditations on the Pandects. As is the case with the natural lawyers and the international lawyers, it is dangerous to overclassify. Elegant jurisprudence in the Netherlands can lead to speculation on the true nature of the lex Aebutia in Roman law, or it can lead to trying to determine what the appropriate rule is for risk of loss in sales of goods. There is no sharp line between elegant jurisprudence and practical jurisprudence. Similarly in Germany, there is no sharp line between the practioners of the usus modernus pandectarum and those who continued the scholarly tradition of Holland and whose work was to set the stage for the modern historical school under Mommsen in the 19th century. Similarly, it is a mistake to see too sharp a line between the natural/international lawyers on the one hand and the practical lawyers/elegant jurisprudes on the other. They all read one another s work and the lines frequently crossed.

Pierson v. Post and its sources I would like to illustrate this last point by tracing the history of the treatment of one particular problem. Let us imagine that a huntsman has started a fox and is pursuing it with his hounds and horses. As he is right on the verge of catching the beast, a neighbor emerges from the woods, sees the fox hiding in the bushes and clubs it to death. Let us also suppose that the huntsman alleges that the neighbor did what did out of spite, not to get the fox for himself. These are the facts of a case called Pierson v. Post, decided in New York in 1805. In the case Post was the huntsman and Pierson was the neighbor. The events are alleged to have taken place on a beach, on public property, and hence the possibly competing rights of the landowner are not at issue. Over a strong dissent, the majority of the court held for Pierson, the man who killed the fox. The case still appears at the front of many first-year property casebooks, and some of the law students may have read it not too long ago. I wrote a couple of essays about the problem a few years ago, and what I want to do it to trace it through most of the authors that are listed on today s outline. It will probably take us in the next class fully to discuss it, but let me expound it all here. I think we may be able to get a better feel for legal thought in the 17th and 18th centuries that way than by dealing with sweeping generalities.

Pierson v. Post and its sources (contd) Justinian s Institutes, the relevant passage from which is laid out in the outline does not resolve the issue in Pierson v. Post. The text deals only with acquiring title to the animal; it does not say that there is no remedy against someone who knowingly interferes with the hunt. Even assuming that there is no remedy for the huntsman who has been interfered with unless he has property in the animal, the text is still not quite squarely on point. It says that wild animals belong to the occupant and that the occupant s ownership is lost if the animal escapes so that it is out of sight or if pursuit is difficult. Post had admittedly not taken the animal nor had it escaped, but the animal was within sight and pursuit was not difficult. Only if we assume that Justinian s text was intended to be exclusive, i.e., that all the positive statements imply a negative, is the text dispositive.

Pierson v. Post and its sources (contd) But what of the remarks in Justinian about wounding? Surely if a wounded animal does not become yours even if the wounding enables you to capture it, then ipso fortiori pursuit alone, even pursuit that would have resulted in capture, is not sufficient, absent capture. This is the line of reasoning that impressed the majority of the Pierson court, but even this line, though plausible, is not inevitable. The opinion of some including, as the Digest (D.41.1.5.1) tells us, the Republican jurist Trebatius was that wounding is enough, so long as the animal could be captured. The Institutesrejects this view on the ground that it may happen in many ways that you will not capture it. But that is not Pierson. The pleading in Pierson clearly implies that Post would have taken the animal but for Pierson s interference. So the case remains undecided on the basis of the Institutes.

Pierson v. Post and its sources (contd) If we look behind Justinian s text in an effort to determine how the classical Roman lawyers would have decided Pierson, we discover that even what seems clear in Justinian is not so clear. The only classical responsum on the topic other than Trebatius , Proculus in the case of the boar in the trap (D.41.1.55; extracted on the outline), suggests a much vaguer dividing line between the natural liberty of the animal, on the one hand, and the control or power of the huntsman, on the other. It also suggests, though it does not expressly so state, that what we call a tort action, an actio in factum on the lex Aquilia, might be available against one who, like Pierson, knowingly interferes with the hunt.

Pierson v. Post and its sources (contd) No place in the classical Roman law is it suggested that a consequence of the doctrine of ownership by occupation presented in the institutional treatises is that one cannot sue someone who knowingly interferes with the hunt. This is not surprising if we consider the sharp conceptual distinction that Roman lawyers made between property and obligation and the fact that Roman casuistic literature is firmly grounded in the actions of the Roman formulary procedure. If one did not own the animal one could not vindicate it, and the penal action for theft did not lie. If one did not possess it, one could not bring a possessory interdict for it. But the point of Post s suit against Pierson is not that Pierson took Post s fox or the fox he possessed. The point is that Pierson interfered with the hunt. It would not have occurred to a classical jurist that the two questions were the same; it might not even have occurred to him that they were related.

Pierson v. Post and its sources (contd) But could a Roman Post have sued a Roman Pierson? There is no text squarely on point, but there is enough to suggest that the action for iniuria, the general action for intentional tort, might have lain in favor of Post against Pierson. The key text is one by Ulpian, D.47.10.13.7 on your outline, which suggests that even if an act like killing a wild animal is privileged, it may not be done with specific intent to harm another. This is a concept that later Continental writers call abus de droit, abuse of right.

Pierson v. Post and its sources (contd) As we have seen (Mats., Part VII), glossatorial effort on these passages seems largely to have been devoted to ensuring that they could be used in a world that had an elaborate system of customary rules that determined both who was entitled to hunt and who as between competing hunters was entitled to the animal once captured. These rules were largely connected with the tenure of, or lordship over, land. The Roman law of hunting as reflected in the Corpus Juris could not be reconciled with these customary rules, but it could be interpreted to bring it closer to them, and this, consciously or unconsciously, is what the glossators did. As we also saw (Mats., Part XIII), the commentators tended to dismiss the torturing of the Roman texts in which the glossators had engaged, recognizing simply that they came out one way and customary law was different. The commentators also shifted the focus more to the general principles of natural law or the law of nations that were at stake in these cases, but they came to no firm conclusions about them.

Pierson v. Post and its sources (contd) In the seventeenth century, concern with the natural modes of acquisition intensified. It could hardly have been otherwise when the principal justification of the conquest of the New World depended on the concept of occupation. The occupation of wild animals, however, only gradually came to play an important role in this concern. For example, like Justinian, Grotius (Mats., p. XVIII 7) deals only with the question of ownership, not with interference with the hunt. Thus, he gives the impression that if ownership cannot be found, Post has no action against Pierson. On the other hand, occupation of wild animals is clearly not for Grotius a primary principle of natural law. The rule, he tells us, may be changed by positive law.

Pierson v. Post and its sources (contd) The connection between the Roman texts on the occupation of wild animals and the philosophical predispositions of the writer became clearer as the seventeenth century developed. Pufendorf s thought on property has a decidedly Hobbesian cast (p. XVIII 8). Pufendorf was not a Hobbesian, but he was influenced by him. For Pufendorf, as for Thomas Hobbes, there is no natural right to property. All property is dependent upon the compact among men. According to this compact things seized by one man out of the common stock are protected from seizure by another. But since the core of the compact is that men surrender their autonomy to the sovereign, the sovereign may change the rule about first occupancy, as in most places he had with regard to hunting wild animals. Nonetheless, the law cannot change the rule that what is in no one s dominion cannot be owned.

Pierson v. Post and its sources (contd) Pufendorf is clearly the source of the rules stated in Pierson. Even more clearly than Grotius he spells out the negative implications of Justinian s text: A wild animal is not reduced to possession except by bodily seizure, either directly or by instruments. An exception is made in the case of an animal mortally wounded or greatly maimed, but even here there has been physical contact with the animal. Post was only pursuing it.

Pierson v. Post and its sources (contd) Barbeyrac, the translator and annotator of Pufendorf, was a follower of John Locke. Barbeyrac s adherence to Locke led him to disagree with Pufendorf s treatment of occupancy in general and that of wild animals in particular. As to the first, property, according to Barbeyrac as it was according to Locke, is a natural right that antedates civil society. As to the second, actual seizure is not necessary to give rise to the natural right of property in a wild animal. This also derives from Locke. For Locke the reason why property was protected was not so much because of human acquisitiveness but because it is necessary to protect the labor that humans put into acquiring things to meet their needs.

Pierson v. Post and its sources (contd) Barbeyrac s text applies precisely to Post. Post had, in Barbeyrac s words, made known to others his design to seize the fox; he was within reach of taking it; he had not ceased pursuing it; Pierson could not lawfully put in a claim to it. It is no wonder that Post s counsel relied heavily on Barbeyrac in presenting his case to the court.

Pierson v. Post and its sources (contd) The line from Barbeyrac through the English cases on the topic of hunting and through Blackstone to Pierson v. Post is even more tortuous than what went before, but we can leave Pierson v. Post here and pose our problem: How is it that continental academic law developed in such a way as to make an early nineteenth century New York court think that Post had no remedy against Pierson unless he could show that he owned the fox? As we have seen, the implications of what the classical writers said about the actio in factum and about iniuria seem to have been forgotten by the eighteenth century. Barbeyrac argues the position contrary to Pufendorf not on the basis of iniuria but on the basis of a different conception of property, one which the court in Pierson rejects.

Pierson v. Post and its sources (contd) In the case of the Pierson court, a relatively simple explanation will probably suffice. The court was, after all, looking for a solution to a practical problem: a way to dismiss a silly suit between two squabbling members of the local gentry. For such a court what Alan Watson has called the block effect of incorporation of Roman law allows it to see a direct line from Justinian to the natural law writers, excluding in each case the setting that qualifies the doctrine stated. I may add that that may not be full explanation of why the court in Pierson came out the way in which it did. Recent work with the case, based on the fortuitous discovery of the original record, has raised the possibility that something more may be involved, a desire on the part of at least some of justices in a new country to show off their sophistication to the western world, but that must be left to those whose focus is on American law in the early 19th century.

Pierson v. Post and its sources (contd) In the case of the natural law writers themselves, however, such a simple explanation will probably not suffice. They were far better Romanists than the justices of the New York Supreme Court, even in 1805. They knew the texts that suggest abuse of right, as the New York justices almost certainly did not, and they knew the difference between a vindicatio and an actio iniuriarum.

Pierson v. Post and its sources (contd) I m still not sure that I know why the development took place in this way. What I think I do understand is what happened. What happened turns out to be a curious chapter in still-untold story of the development of the concept of abus de droit; it is largely a story of Barbeyrac s contemporaries and his immediate successors, with writers in the Low Countries, Germany and Switzerland contributing, but none, so far as I now know, in France, Italy or Spain.

Property in early modern legal thought Barbeyrac was not alone in his view that actual manucaption was not necessary to give the hunter a property right to the animal in natural law. He cites in support both Gottlieb Gerhard Titius (1661 1714) and Gerardus Noodt (1647 1725). Titius succinctly summarizes his views in his Twelve books on Romano-Germanic private law (Materials, p. XVII 10): This also is to be observed: that occupation is required for acquiring ownership not simply but rather as a means of indicating to others the will of him who is to acquire; hence other acts, equally indicating the will of the same, are efficacious along with occupation. Thus wounding and pursuit also afford ownership of a wild animal (assuming that it is no one s) as well as occupation. [D.41.1.5.1.] The contrary opinion that prevailed among the Romans [J.I.2.1.13] is a matter of the positive law. . . . Further, occupation naturally has no prerogative over the other acts indicating intent, such as sight, casting a spear, or other similar things; hence if many concur in acquiring a thing, neither sight nor occupation nor casting a spear gives the ownership to one, but rather it is common to all, although others think otherwise; see Pufendorf, [4.6.8].

Property in early modern legal thought (contd) Titius elaborates on his views in his Disputation on ownership in things occupied lasting beyond possession. In it he makes clear that his real opponent is Cornelius Bynkershoek and the latter s remark in the Concerning dominion of the sea that in the natural law ownership ceases with possession. What is at stake, in Titius view, are some fundamental presuppositions about the nature of man. By taking things from the common stock, man is following a divine ordinance. The fundamental principle of natural law is sociality among men. Therefore any manifestation of one s will to others deserves their respect as a matter of natural law. Bynkershoek s views are altogether too Hobbesian for Titius.

Property in early modern legal thought (contd) The basic cast of Titius thought on the topic of property comes from his teacher, Christian Thomasius, but the specifics about occupation do not. Thomasius own treatment of occupation in the Three books of institutes of divine jurisprudence can only be described as confused, and they are inconsistent with his general precepts about property. Of these three seem to be relevant, and they are derived from an elaborate discussion of creation, and the life of man both before and after the fall of Adam (p. XVII 10): [1] Use created things in such a way as not to destroy the good of your soul or your body. . . . [2] Use created things in such a way that you preserve equality with others; to wit, do not abuse them for pride; do not harm others by this use; serve others through them; keep faith given on that account. [3] Let no one disturb another in his use of created things. . . .

Property in early modern legal thought (contd)) Thomasius treatment of property is more powerful in the general than it is in the particular. What makes it powerful in the general is that it offers an alternative to what has been called the possessive individualism of both Hobbes and Locke. Man is not a solitary savage whose precarious possession of things can only be protected by the introduction of a totalitarian sovereign, nor is he the solitary laborer whose pre-existing right to things is protected by the social compact. Man is God s noblest creature, ordained to use the things of the earth for his own good and to live in communities with other men. His rights and duties with regard to things are in a delicate balance. He may not use those things to harm others or, indeed, even to establish an inequality with others, but others must respect his use of those things. There is a clear connection between Thomasius ideas and those of Leibniz; since they are virtually contemporaries, it s hard to tell who influenced whom.

Property in early modern legal thought (contd) What Titius did, then, was to take Thomasius general principles and apply them more consistently to the question of occupation of wild animals. Thus, so long as the occupation is legitimate (i.e., does not violate the basic equality among men), any method of announcing the intention to seize is sufficient to ground a right to be free from the interference of others.

Property in early modern legal thought (contd) Titius resolution of the problem of acquisition of wild animals may be original with him. Gerardus Noodt, however, came to similar conclusions by a very different route, and his work was also cited by Barbeyrac in opposition to Pufendorf. Barbeyrac refers to a passage in Noodt s Probable opinions about law, which reads (Materials, p. XVII 11): It was variously disputed by the ancients whether possession is acquired by intent alone, or by intent and body, not that they had doubts about the origin of possession or the rule, but they disagreed among themselves as to what ought to be observed in practice. There were those, I have convinced myself, who departed from the definition of the majority, as if utility commanded it, and when the holding was that possession is acquired not otherwise than by intent and body, they nonetheless pretended that both were present, as soon as the intent was apparent by a suitable sign together with the probable ability to seize the thing. Thus if a pebble or gem should be found by two people on the shore of the sea, but only by the sight of one and by the seizure also of the other, both fell into common ownership, so that he who first came into corporeal possession would not prevail unless he had previously indicated the affect.

Property in early modern legal thought (contd) The proposition is clear enough. The support for it is tenuous: Noodt begins with three passages from non-legal sources, each of which is considerably less persuasive when taken in context but which taken together may point to some sort of customary practice that was never recognized in law. There follows the opinion of Trebatius on wounding reported in the Digest (D.41.1.5.1). Wounding, of course, is more than a manifestation of intent, and nothing in the passage suggests that common ownership will be the result.

Property in early modern legal thought (contd) Noodt next analyzes Proculus on the boar in the trap (D.41.1.55). Here, he tells us, Proculus would hold for the actual occupant if the trap were laid in a public place, for the owner of the land if the trap were laid on another s land without the landowner s permission, and for the trapper if the trap were laid on the trapper s land or on another s land with the owner s permission. Tribonian, Noodt continues, misunderstood the passage. The summary at the end of the passage is designed to show that the boar is the trapper s if he could get it when he wanted to. This reading involves a strained interpretation of one of words in the passage, and no place are we told where Tribonian misread the passage. Finally, D.41.2.3.3, a text that states a quite different view of possession from what Noodt is arguing for ( Neratius and Proculus [say] that we cannot acquire possession by intent alone unless natural possession is had before ), is simply emended (by leaving out the not ) to make it consistent with Noodt s views.

Property in early modern legal thought (contd) As a piece of historical scholarship Noodt s effort is not convincing. Indeed, Christfried W chtler pointed out most of the objections suggested above in his acerbic Notes on Noodt. While the passage may simply illustrate Noodt s well-known tendency to engage in wild emendations of his texts, there is something about what he says that cannot be so easily dismissed. As we noted above in our discussion of the sources of the arguments in Pierson v. Post, the Roman law texts on the occupation of wild animals do not inevitably lead to the conclusion that Post must lose. Whether Post could sue Pierson for interference with the hunt is a least an open question in the Roman sources as they stand, and precisely what mental and corporeal elements were the minimum essentials for title is by no means clear once we go behind the institutional treatises. Although the details are unconvincing, Noodt does offer another view that (except for the idea about ownership in common) does have some support in the texts.

Property in early modern legal thought (contd) That Noodt was working on a theory of possession different from that prevailing in his time is seems reasonably clear not only from this passage but from others in his work. Noodt s effort is the first that I know of to state a legal theory of possession different from that of the prevailing ideology of possessive individualism current in his day. Noodt s work antedates Thomasius ; it antedates Titius by almost a generation. Whether they knew it we cannot tell, but perhaps that is not important. In the history of ideas similar changes frequently occur independently of each other, when the time for them is ripe.

Property in early modern legal thought (contd) Noodt s views on the law of occupation of wild animals were not generally accepted by the historical scholars of Roman law, the proponents of elegant jurisprudence who followed him. We have already noted W chtler s caustic remarks on Noodt s proposed emendations. The fullest discussion of Noodt s views is found in Bernard Reinold s dissertation on the Digest title on acquiring ownership. Reinold accepts Noodt s emendation of D.41.2.3.3 and conjectures that the final sentence of D.41.1.55 is Tribonian s not Proculus . He makes much clearer what had been Noodt s implicit argument that Trebatius and Proculus believed that something short of actual manucaption was sufficient to found possession. But for Reinold the purpose of the exercise is to ferret out heresy. He has no sympathy with the alternative view. We must investigate such things, he suggests, in order to discover how the true rule came about, or in order to know which passages in the Digest have been superseded. Not even this much of Noodt s views seems to have survived. The views of W chtler and of others who followed him seem to have held the day.

Property in early modern legal thought (contd) The Noodt/Titius view of the law of occupation of wild animals was not to prevail the more practically inclined of the practitioners of elegant jurisprudence nor among the practitioners of the usus modernus pandectarum any more than it prevailed among the historical scholars. What did prevail was a Bartolist rendering of the texts, perhaps best illustrated by Tuldenus who wrote in the first half of the seventeenth century but whose work was still being published in 1702. On the question of wounding a wild animal Tuldenus, after noting Justinian s resolution of the problem, writes (Mats., p. XVIII 11): The fact that it seemed wrong that someone should take from you the reward of industry had moved some to the contrary opinion. . . . But a better reason convinced Justinian, to wit, that hunting has to do with occupation: he is not regarded as having occupied who has not taken with his hands. Further, the laws ought to so provide that they not contain the seeds of perpetual litigation, which would happen if the wild animal were adjudged to him who so wounded that he could be captured; for this very thing, whether he could be captured, would be forever controverted. Nor could it be defined by a certain rule. Justinian therefore decided the controversy in this way so that his decision in one case not excite new controversies.

Property in early modern legal thought (contd) For Johannes Voet the basic principle is that occupation is the just apprehension of corporeal things that are common by the law of nations done with the intention of becoming owner whereby that which is no one s is granted by natural reason to the first occupant. He spends little time on the question whether something short of taking hold of the animal will give rise to title; he is principally concerned with the problem of poaching. Here his views differ markedly from Noodt s: The game belongs to the poacher, even though he is liable in iniuria for taking it. Although he does not cite Noodt in his discussion of the case of the boar caught in the trap, he makes clear his total disagreement with Noodt s analysis of it.

Property in early modern legal thought (contd) While Voet seems clear that actual seizure is necessary for a title to a wild animal to arise in Roman law, he is also aware that the customary law of Holland is different (or perhaps ought to be different) (Mats, pp. XVIII 11): Although it is still held now that a wild animal wounded by one person, and occupied by another does not become the property of him who wounds, but of him who occupies, . . . still anyone who comes on the scene and occupies a wild animal on the pursuit of which another is still bent ought to be fined, on the ground that he is carrying on a meddlesome form of hunting, the frequent cause of quarrels and of brawls.

Property in early modern legal thought (contd) Titius views were particularly obnoxious to Augustin Leyser, whose Hobbesian vision of the law of occupation leads him to the following statement: Occupation and acquisition of ownership is nothing other than reduction to one s power. He who declares that he will occupy a thing has not yet reduced it to [his] power. It is necessary that another act also be present. Will and thought alone even if expressed in words can have no effect, nor does he who fixes his spear on the gate subject the city to his right and power. Similarly Leyser does not attempt to justify the change in the law by which the German princes had arrogated hunting rights to themselves. It was an act of naked power, and in this situation might makes right. Leyser alone of the eighteenth century writers we have examined supports the result in Pierson v. Post, and he quotes at length from a contemporary German case to the same effect.

Property in early modern legal thought (contd) If the more practically inclined elegant jurisprdudes and the adherents of the usus modernus pandectarum, like the historians, did not, as a general matter accept the Noodt/Titius view on the occupation of wild animals, those views, perhaps because of the influence of Barbeyrac and Thomasius, found much firmer echoes in the writers in the natural law tradition and among the international lawyers. Indeed, one element of these views had already been anticipated by Johann Wolfgang Textor in his Synopsis of the law of nations. Textor is most concerned about the problem of ownership of the sea, and he is at pains to hold that it cannot be occupied. This leads him to three principles about occupation (p. XVIII-11): (1) The object must belong to no one. (2) It must be susceptible of human ownership, and, without any breach of Natural Reason, it must be possible to exclude other men from the use of it. (3) The occupant must indicate by some adequate external sign or deed his intent to possess and to acquire. The last requirement is odd. It would suit Textor s argument better to hold that actual manucaption or pedis possessio is necessary, since neither can be had of the sea. He may already have been thinking of the more communitarian notions of property developed by Thomasius.

Property in early modern legal thought (contd) Christian Wolff s definition of occupation, like Textor s, emphasizes the announcement of intention (not in Mats): Occupation is a fact, by which someone declares that a thing belonging to no one ought to be his and reduces it to this state so that it can be his. . . . If someone, when ownership of things has begun to be introduced, reduces a moveable belonging to no one to that state in which it can be seized and the fact is such that at the same time he declares that he wishes the thing to be his, he is deemed to have occupied it and to have acquired its ownership. In a somewhat simplified form the argument that supports these propositions is this: In the primitive community one subjected things to one s use by will. That will must be declared to other members of the community, but apprehension is only one way to declare that will. The introduction of ownership has simply substituted ownership rights for use rights; all else remains the same so far as things in the common are concerned.

Property in early modern legal thought (contd) Wherefore, Wolff continues, acts of the occupancy consist not in seizure alone, nor is it always required, only that they be such that from them it can be discerned with reasonable probability that you want the thing to be yours. Note especially that the acts of occupancy ought to be so defined or determined . . . to avoid the suits that would arise if another frustrated your effort which you had spend on reducing something to that state in which it could be yours, without which, there is no one who does not understand, it could not have become the other s.

Property in early modern legal thought (contd) Jean-Jacques Burlamaqui attempts to answer the argument that any rule of occupation that does not require actual seizure is too indefinite for actual application by drawing the line on the other side of those who are on the threshold of actual capture (p. XVIII-11 to 12): What properly founds the right of the first occupant is that by seizing a thing that belongs to no one he lets it be known before all others his design to acquire the thing. If, however, one should manifest the intention to acquire a thing by some other act as significant as the taking of possession, as, for example, by the marks made on certain things, one can acquire property that way as well as by the taking of possession. Of course, he must be at the threshold of taking what he claims to have the intention of seizing. For it would be silly to pretend that an intention of uncertain effect would deprive other men of their rights. The boundless avarice of many men would thus render useless the right of others, which would be plainly contrary to God s intention and would give rise to continual disputes and quarrels. Burlamaqui then makes it clear that he is thinking of wild animals in this context.

Property in early modern legal thought (contd) Perhaps the most remarkable statement of the Thomasius/Titius thesis is Emer de Vattel s, for he indicates that he regards it as generally accepted that natural law forbids interference with the act of appropriation (p. XVIII- 12): All members of a community have an equal right to the use of its common property. But the members of the community, as a body, may make such regulations as they think fit concerning the manner of using it, provided such regulations do not violate the principle of equality in the enjoyment of it. . . . The right of the first comer (jus praeventionis) should be faithfully observed in the use of common property which can not be used by several persons at the same time. . . . For example, if I am actually drawing water from a common or public well, another who comes after me may not push me aside in order to draw water himself, but must wait till I have finished; for in thus drawing water I am acting on my right and may not be troubled in it by anyone; a second comer, who has an equal right, may not exercise it to the impairment of mine, and in stopping me by his arrival he would be claiming a greater right than mine and violating the law of equality.

Property in early modern legal thought (contd) The same rule should be observed with respect to the use of such common property as is consumed in the using. It belongs to the first person who takes actual steps to put it to use; a second comer has no right to deprive him of it. I go to a public forest and begin to cut down a tree; you come upon the scene and want the same tree; you may not take it away from me, for that would be to assert a right superior to mine, and our rights are equal. This rule is similar to that prescribed by the Law of Nature for the use of the fruits of the earth before the introduction of private ownership.

Property in early modern legal thought (contd) A few patterns are relatively clear in this extraordinary divergence of views: First, the genre in which the author is writing is a good indicator of his views on the occupation of wild animals. If he is writing in the Roman law tradition, he will not give title to the animal to the huntsman who has not succeeded in depriving the animal of its natural liberty. Noodt is the only exception, and as an interpretation of the Roman texts his effort is a failure, however interesting it may be for the legal ideas it suggests. On the other hand, those writing in the natural law tradition seem to have abandoned Pufendorf s Hobbesian views about the occupation of wild animals sometime around the turn of the eighteenth century. This seems to have happened because their philosophical predispositions changed either in the direction of Barbeyrac s Lockeanism or in the direction of Thomasius Leibnizian communitarianism. As a piece of natural-law thinking Pierson v. Post is a century out of date.

Property in early modern legal thought (contd) Those seeking to provide a practical body of rules for the resolution of contemporary legal problems were caught in the middle. If they were like Voet, inclined to accept Roman law solutions and not particularly interested in philosophy, they would hold that title belonged to the first person to seize the animal, but then give wide play to customary and statutory rules that punished those who interfered with the hunt. If they were like Titius, inclined to reconcile their rules with broader philosophical concerns and not particularly interested in preserving the solutions of the Roman texts, they would restate the law of occupation broadly in such a way as to protect the hunter by the rules of property as well as those of delict.