THREE HUNDRED AND THIRTY SIX

From Patricia J. Williams, The Alchemy of Race and Rights.

Some time ago, I taught a property class in which we studied the old case of Pierson v. Post:

 

Post, being in possession of certain dogs and hounds under his command, did, “upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox,” and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off.

 

One day a student gave me a version of the case as reinterpreted by her six-year-old, written from the perspective of the wild fox. In some ways it resembled Peter Rabbit with an unhappy ending; most important, it was a tale retold from the doomed prey’s point of view, the hunted reviewing the hunter. It was about this time that I began studying something that may have been the contract of sale of my great-great-grandmother as well as a census accounting that does list her, along with other, inanimate evidence of wealth, as the “personal property” of Austin Miller.

 

In reviewing those powerfully impersonal documents, I realized that both she and the fox shared a common lot, were either owned or unowned, never the owner. And whether owned or unowned, rights over them never filtered down to them; rights to their persons were not vested in them. When owned, issues of physical, mental, and emotional abuse or cruelty were assigned by the law to the private tolerance, whimsy or insanity of an external master. And when unowned—free, freed, or escaped—again their situation was uncontrollably precarious, for as objects to be owned, they and the game of their conquest were seen only as potential enhancements to some other self.

…

The problem, as I came to see it, is not really one of choosing rhetoric, of formal over informal, of structure and certainty over context, of right over need. Rather it is a problem of appropriately choosing signs within any system of rhetoric.