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Abstract:
The importance of private property is generally assumed in American law and society. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principal of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post (1805), makes all four of these points. This article argues that Pierson has been misunderstood, however. Pierson was in fact a defective torts case which the judges shoe-horned into a property mold using legal fictions and antiquated "facts" about fox hunting. Moreover, they themselves knew their arguments were frivolous. My conclusions undermine several prominent theories about private property that are based on Pierson v. Post.

Pierson v. Post, farae naturae, fox hunting, possession, title, property, coase theorem

Abstract:
Before the civil war, "lynching" signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to "vigilante values," that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed over due process on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially with respect to members of their own communities.

The core of the article is a comprehensive study of law in the California gold rush. The thousands of publications on lynching have simply missed this critical chapter in American legal history. Hundreds of accounts of lynchings or "trials" (the miners used the terms interchangeably) indicate that most suspects were tried before a judge and an impartial jury, and some were acquitted. Lynchings or trials in the gold mines thus often resembled those on the overland trail studied by John Reid. This article further suggests that similar trials were common on the frontier. Scholars have failed to distinguish these rather poorly documented proceedings from the activities of vigilance committees, thereby omitting an important factor in their studies of the American legal experience. The importance of due process to Americans, even in crowds, and even beyond the reach of the courts, must now be reassessed.

Lynch law, vigilantes, due process, criminal law, legal history, frontier