John Hanson Mitchell
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Night of the Falling Stars
Bird of Dreadful Night

The Cult of Monadnock

The Fox Went Out

Anyone who has ever studied law will know of the sad story of Mr. Lodovick Post, who one fine morning in the year of our lord, l805, set out with his hounds and horse in pursuit of what the law books refer to as a beast fera natura, which is to say, a wild animal.  The beast in this case was a red fox, an animal despised by Mr. Post --- the plaintiff in this particular case  --- and also by the defendant, a certain Mr. Pierson. In fact at this point in time, the nineteenth century, the poor fox was despised by almost everyone, save a few eccentric nature lovers.

The fox was regarded by both parties in the case as a pirate, the scourge of barn yards, the bane of farmers, a renegade, a despoiler, an eater of hens.  To put him to death, wherever found was considered meritorious and of public benefit.  Accordingly, the law,  and in fact the decision in this case, which ended up as a model law concerning American property rights, offered the greatest possible encouragement to destroy this cunning vandal.

Mr. Lodovick Post, a country gentleman of some means, had mounted his steed at the crack of dawn on the day in question and with hounds and horn rode out in pursuit of the "wily quadruped"  --- as the dissent termed it.  Towards evening, having pursued the windings of Sir Fox the day long, and weary with hunting, Squire Post closed in on his prey, whereupon, Mr. Pierson  --- who had not shared in the labors, nor the honors, of the hunt, appeared on the scene.  This Pierson, this "saucy intruder", drew his fusil, took aim, shot the fox, and made off with it.

Who owns the fox?  Mr. Post, who chased it all day, who tore through brambles, who sweated, who went without lunch, who was stiff with riding, whose hounds were hoarse, breathless and scratched?  Or Mr. Pierson, who happened upon a tired fox and shot it?

Post took Pierson to court, claiming ownership, and won his case.  Pierson appealed, and there rose a mighty furor over the poor, long dead fox, who by this time was reduced to a mere pelt. Counsels for both parties reached  deep into  history to make their points, citing, among others, the Roman emperor Justinian, whose laws held that pursuit alone vests no property. Pierson's counsel argued that the fact that Post rode after the fox all day meant nothing, mere pursuit gave no legal right to ownership, he argued, and the fox in fact became the possession of Pierson as soon as he killed it.  Post's counsel countered that whatever Justinian thought about foxes was insignificant. He argued these were modern times (1805!) and society had changed since Roman times, and if society changes, should not also laws change?

Post lost the case, Pierson got his fox after all, and4 Pierson v Post went on to become a seminal case in the annals of American property law.

But the dissent bears watching.  In modern times, (l995), in a world in which "resources"  (a loaded, anthropocentric, word if ever there was one) are shrinking,  who in fact does own the fox?  Sir Fox, were he with us now, would surely argue that he is his own man and beholden to nobody but his wife and little ones.  And the native people of this continent might have agreed.

Nicholas Perrot, who spent time among the Indian hunters of the Great Lakes region in the eighteenth century, says that a man returning from a hunt, not matter how long or laborious it may have been, was bound by tradition to share his catch with the other members of his tribe.  The custom was so ingrained that hungry huntsmen would sometimes hide their kill in the forest and butcher it alone so as not to have to divide the booty.

And if the ownership of a fox or any other quarry is in question, it's not much of a jump to wonder who owns the land?

Chief Tecumseh of the Pawnee was in awe when he was informed that the white aliens "owned" land.  "Own the land?" he asked incredulously, "why not own the sky?"

More to the point, who owns the land? Who owns the rivers, the sky, the sea?

Chief Tecumseh, whose people successfully lived on the American continent for some fifteen thousand years or more without actually owning a scrap of it, came to the heart of the issue in l810  when he was informed by a Johnny- come-lately government that his people would have to move because the United States Government now "owned" his land.  "Own the land?" he said.  "Why not own the sky.  Why not own the sea?".

Sanctuary: The Journal of the Massachusetts Audubon Society
September/October 1995
Volume 35 Number 1

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