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Monday, May 8, 2017

U of T library online exhibit: Pierson v. Post judgment roll

The policy of this blog has been to post on Canadian legal history, rather than legal history written by Canadians. I have made a few exceptions, and here is an exceptionally worthy one. (Beside which, Pierson v. Post has been taught in Canadian as well as American classrooms, although it is very much an American case.)

fc4ab5a71c1423bea6189e30cc0670b1.jpgAngela Fernandez of the University of Toronto Faculty of Law, a notable Pierson v. Post scholar, has arranged an online library exhibit of the judgment roll.

The exhibit includes a short piece by Angela on the context of the judgment, and reproduces the twenty pages of the judgment roll in PDF format.

Here's the description of the exhibit:

Pierson v. Post has been made famous by its use in American property law classrooms since the 1950s. It is often the first case law students study in property as it provides an introduction to the concept of first possession and how one acquires possession in a wild animal, the fox, owned by no one. 

The case report reproduced in law school casebooks was created by New York’s first official law reporter George Caines after the case was argued by eminent counsel and reversed in Pierson’s favor at the New York Supreme Court. What law students generally read is a brief statement of the facts, followed the majority decision by Justice Daniel Tompkins and a dissent by Justice Brockholst Livingston. 

The Judgment Roll is a copy — probably made by the clerk of Pierson’s lawyer Nathan Sanford — of the documents Sanford filed in his writ of certiorari to the New York Supreme Court. This was a process in which the loser before a Justice of the Peace could appeal the decision by asking for the New York Supreme Court to command that the Justice of the Peace explain what had been done before him in the magistrate’s court, in this case a jury trial held at Post’s request on December 30, 1802, for their review. It was the job of the New York Supreme Court to check, yes, all the ‘i’s were dotted and ‘t’s were crossed in the magistrate’s proceedings and if they were not, Pierson (the “now plaintiff” before the New York Supreme Court) was justified in winning a reversal of the jury’s 75¢ award for Post and his $5 in costs. The Judgment Roll also includes the command to Justice of the Peace John N. Fordham to return the documentation, Sanford’s six specific grounds of appeal, as well as the words the New York Supreme Court used in order to hold the case over from year to year until it was ultimately decided in Pierson’s favor on September 10, 1805. Sanford then filed this copy of all of the documents (those provided by Fordham, his own, and the New York Supreme Court) as the “Record” in the case on the same day.
This judgment roll was found by University of Toronto law professor and legal historian Angela Fernandez at the Division of Old Records, New York County Clerk’s Office in New York City in May 2007.
Each page of the judgment roll is reproduced with an accompanying transcript prepared by Professor Fernandez.
It has subsequently disappeared but a dataset was created to preserve the images and make them publicly available. You can find it here. A transcript of the Judgment Roll is also available as an appendix in Angela Fernandez, Pierson v. Post, the Hunt for the Fox: Law and Professionalization in American Legal Culture (New York: Cambridge University Press, 2017).
Running Fox by Paul de Vos, courtesy of Museo Nacional del Prado.

See also related articles through the U of T Dataverse accessible here.

Tuesday, May 2, 2017

Thomas McMahon, 'We Must Teach the Indian What Laws Are': The Laws of Indian Residential Schools in Canada on SSRN

Thomas L. McMahon has posted 'We Must Teach the Indian What Law Is': The Laws of Indian Residential Schools in Canada (April 18, 2017) on SSRN. 

Here's the abstract:

This paper provides a chronological sequence of the laws that were used to create and enforce Indian Residential Schools in Canada. The paper provides extensive excerpts from the final report of the Truth and Reconciliation Commission of Canada. The excerpts are chosen based on how directly they are related to law, and the excerpts are re-organized to be presented in a chronological manner. The table of contents of the paper can serve as a time line of the laws that created and enforced and ended Indian Residential Schools. Other sources are also cited.

This paper is one of series written by the author in attempting to understand and explain why it was nearly impossible for indigenous peoples to use the legal system to protect themselves or obtain compensation for the abuses they suffered in the residential schools until well into the 1990s.