Thomas Jefferson Papers

The Dismissal of Livingston v. Jefferson: I. John Tyler’s Opinion in Livingston v. Jefferson, [4 December 1811]

I. John Tyler’s Opinion in Livingston v. Jefferson

[4 Dec. 1811]



in trespass quare clausum fregit.

Demurrer on a plea to this jurisdiction. } Tyler, J.

OPINION.—This case, although so ably and elaborately argued on both sides, affords but a single question; and that may be drawn within a narrow compass; and while I freely acknowledge how much I was pleased with the ingenuity and eloquence of the Plaintiff’s Counsel, I cannot do so much injustice to plain truth as to say, that any conviction was wrought on my mind of the soundness of the arguments they exhibited in a legal acceptation. It is the happy talent of some professional gentlemen, and particularly of the Plaintiff’s Counsel often to make the worse appear the better “cause,” but it is the duty of the Judge to guard against the effects intended to be produced, by selecting those arguments & principles from the mass afforded as will enable him to give such an opinion, at least, as may satisfy himself, if not others—These arguments and this eloquence, however, have been met by an Herculean strength of forensic ability, which I take pride in saying sheds a lustre over the bar of Virginia.

But to proceed in the examination of the single1 point before us; and that is, to enquire, whether this court has Jurisdiction over this cause? And how it comes to be made a question at this day, I confess myself entirely at a loss to say; but as it is made, we must determine it.

By the Common Law which was adopted by an Act of Convention of this State, so far as it applied to our Constitution, then formed, this point has been settled uninterruptedly for Centuries past, and recognized by uniform opinion & decisions both in England & America. It is true the great Luminary of the judicial department of G.B. did make an effort to shake the principle they had established, but the Judges in that country would not suffer it to be unsettled, it having been so long acknowledged as the indubitable law of the land. Nor was it for them—nor is it for us, to be over-scrupulous in enquiring for the reasons on which the opinion was originally given, why an action of Trespass should be deemed a local Action.

Time may have cast a shade over the reasons of many maxims and principles; & yet they are principles and maxims much to be respected.—But to me some appear to be evident; for instance; in this action the title and bounds of land may come in question; & who so proper to decide on them as one’s Neighbors who are so much better acquainted with each other’s lines and every thing else which may lead to2 fair decision? In an action of this kind it may be necessary to direct a Survey and lay down the pretensions of both parties; for the defendant has a right to show in himself a better title and defend himself on that title. He calls for a direction from the court for this purpose; & if it goes at all, it must go to an Officer to carry his Posse to remove force, if any should be offered. And suppose the Sheriff and Jury should deny the power of the Court, can3 they be coerced? And is not this an undeniable proof of the want of jurisdiction; since although we should sustain the cause in court by a sort of violence against principle, we should not be able to compleat what was begun?4 The law never sanctions a vain thing—How vain therefore to begin what we cannot end! Is not this enough to show the locality of the action & the consequent want of jurisdiction?

I shall not attempt to travel up to the time when both real and personal actions were local. This has been sufficiently done (though perhaps not necessary,) by the Gentlemen at5 bar, nor shall I enquire when the distinction took place between local and transitory actions. It is enough to say that notwithstanding this distinction, the action for Trespass Quare Clausum Fregit still remained local & is so held to this day. The Jury of the Vicinage was & still is a valuable privilege in both cases—May it not be true that when G.B. had emancipated herself from her insulated state, figuratively speaking, by spreading her canvass & carrying her commerce over every clime and every region, this change, this distinction soon followed after it, so as to give greater energy to the transactions between man and man; therefore, by a fiction in law, suffer a transitory action to be maintained any where and every where in which a contract could be made.

But some how or other the Court must have jurisdiction of every cause it attempts to sustain; and I can conceive no better scheme than that which is pursued, of giving the Court jurisdiction by a fiction in transitory actions in this way; that a contract, for instance, was entered into in New-Orleans, to wit, in the City of Richmond, between the parties (not traversable but in case of jurisdiction,) from which City or the County in which the City is, the Jury must come. I say must be supposed to come, notwithstanding the Act of Assembly which requires the by-standers to be summoned, for they are of the County or Vicinage;6 and this Act saves the necessity of a Venire facias in every case. The Venire therefore is indispensible in my opinion to show Jurisdiction.

Again; I well recollect a case of Waste brought in the Petersburg District Court, when the County of Greensville was supposed7 to make one which composed that District. The cause went on to trial, & a Verdict passed for the Plaintiff, without its being observed that Greensville belonged to Brunswick District; but at length the Defendant’s Counsel found it out and moved in arrest of Judgment; but the Verdict was sustained, an Appeal was taken and the High Court of Appeals reversed the Judgment, because, it being a local action, it ought to have been instituted in the District where the Trespass was committed over which that Court alone had jurisdiction—Notwithstanding a Verdict had passed, upon the general issue, & it often has been determined that no consent of the parties by their pleadings could give8 jurisdiction—Various are the causes which have been determined in this country in support of the doctrine laid down in this cause, & not one to the contrary9 I venture to affirm can be reverted10 to. Why then attempt to alter this settled principle? Has any statute been passed in this country that in the slightest manner disturbs the uniform decisions? The case I have referred to was between Galt11 and Thweatt; & I own is a strong one, as the place wasted and recovered was to have been delivered up and the Court had no power to enforce the judgment.—But I have given reasons enough to shew how inadequate would be the power of this Court to carry on the cause before us and enforce the Judgment.

It seems clear then, that where title of land is in question, the action must be local, notwithstanding, what may be and has been said of a contract to convey land—I well know there is a legal and moral obligation on every man to perform what he contracts to perform: and this among others is a reason why an action personal should follow a person wherever he might be found and there rise in judgment against him.

Upon the ground taken, so far then, the action cannot be maintained in this Court; but the ingenious Counsel, never at a loss for argument and new matter, has resorted to what he calls the General, the Universal law. Now, I want to see this undefined law, before I can sustain a principle under it. I suppose what is meant by the General or Universal law is the Law of Nature and Nations; and who yet has been able to find where the Law of Nature has defined what a civil action is, or directed the mode of proceeding in it, or in what court it should be brought;—These are high sounding words, indeed, but they only serve to round a period and fill up a vacuum in the argument. This is something like the last resort of Kings where every thing else fails: for I know of no other actions in that quarter but such as flow from that source: Neither do I know of any law that can change the locality of a man’s land in New-Orleans to the City of Richmond. This mighty engine therefore fails; this undefined law as to the case before us ceases to be any thing more than empty sound.

But I will suppose for the sake of argument that we now were proceeding with the Trial of the cause, and the witnesses with the survey and plat were before us, which would show the Trespass, if any12 had been committed, to have been committed in the Territory of New-Orleans; what could the court do but send the cause out of doors? For take notice, there is to be no fiction in a local action. Here the Venire is laid in Henrico, the evidence would come from a distant territorial government and would not agree with13 the allegations in the Declaration; and here would end the struggle. Indeed taking the premises, which I have laid down, to be true, which cannot well be denied; and the question resolves itself into a self-evident proposition.

But there would be a failure of justice, unless we sustain this action; and to avoid this evil, we must enact a law, for, I know of no other way of answering the plaintiff’s design—but this I cannot consent to do; neither can I fly in the face of my own decisions, until better taught.

But there is no failure of justice: there is a court of competent power to try the cause, if an actual Trespass has been committed; and there ought the suit to have been brought against the real Trespasser. I own there may be cases where a man might so manage his matters as to run through another’s ground and lay waste his enclosures and even pull down his fences, and then flee from justice, like another criminal, and thus get out of the reach of the law; which is not uncommon.—There are cases that no law can well provide against, and these14 may be considered as partial evils, and exceptions to a good general Rule.

I am too unwell to follow and pay respect to all the arguments which have been advanced in support of the jurisdiction of this court over the case before us; and therefore must conclude by giving my decided opinion in favor of the Plea to the jurisdiction. The cause must therefore go out of Court.

Printed in Richmond Enquirer, 19 Dec. 1811; undated. Reprinted in American Law Journal 4 (1813): 78–82, and The Federal Cases: comprising Cases Argued and Determined in the Circuit and District Courts of the United States (1894–97), 15:661–3 (case no. 8,411).

trespass quare clausum fregit: unlawful entry onto land that is visibly enclosed (Black’s Law Dictionary description begins Bryan A. Garner and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ). The Virginia Convention of 1776 stipulated that the common law “of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, and which are of a general nature, not local to that kingdom … shall be considered as in full force, until the same shall be altered by the legislative power of this colony” (Ordinances Passed at a General Convention of Delegates and Representatives, From the several Counties and Corporations of Virginia [Williamsburg, 1776], 21). The great luminary of the judicial department of Great Britain (g.b.) was William Murray, 1st Earl of Mansfield. Under Virginia law, sheriffs were authorized to choose jurors from the local pool of by-standers (Samuel Shepherd, The Statutes at Large of Virginia, from October Session 1792, to December Session 1806, Inclusive [1835, repr. 1970], 1:19).

1Word omitted in American Law Journal. Here and below, Federal Cases follows American Law Journal.

2 American Law Journal here adds “a.”

3 American Law Journal: “could.”

4 American Law Journal: “what we begun.”

5 American Law Journal here adds “the.”

6 American Law Journal: “vicarage.”

7 Enquirer: “suppposed.”

8 American Law Journal: “prove.”

9 Enquirer: “contsary.”

10 American Law Journal: “adverted.”

11 American Law Journal: “Gall.”

12 American Law Journal: “if one.”

13 American Law Journal: “without.”

14 American Law Journal: “they.”

Index Entries

  • common law; and Livingston v. Jefferson search
  • Constitution, U.S.; cited in Livingston v. Jefferson search
  • Galt v. Thweatt; cited in batture case search
  • Great Britain; laws of search
  • law; common search
  • law; of Great Britain search
  • Livingston v. Jefferson; J. Tyler’s opinion in search
  • Mansfield, William Murray, 1st Earl of; cited in Livingston v. Jefferson search
  • New Orleans; and Livingston v. Jefferson search
  • Richmond, Va.; circuit court at search
  • Tyler, John (1747–1813); opinion in Livingston v. Jefferson search
  • United States Circuit Court, Virginia District; and batture controversy search
  • Virginia; conventions of1775–76 search
  • Virginia; laws of search