Thomas Jefferson Papers

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

II. John Marshall’s Opinion in Livingston v. Jefferson

[4 Dec. 1811]

Livingstone } demurrer on a1 plea to the jurisdiction

The sole question now to be decided is this; Can this court take cognizance of a trespass committed on lands lying within the United States, & without the District2 of Virginia in a case where the trespasser is a resident of3 & is found within the District?

I concur with my brother Judge in the opinion that it cannot.

I regret that the inconvenience to which delay might expose at least one of the parties, together with the situation of the court, prevent me from bestowing on this question4 that deliberate consideration which the very able discussion it has received from the bar would seem to require; but I have purposely avoided any investigation of the subject previous to the argument, & must now be content with a brief statement of the opinion I have formed, & a sketch of the course of reasoning which has led to it.

The doctrine of actions local & transitory has been traced up to its origin in the common law; &, as has been truely stated on both sides, it appears that originally all actions were local. That is that, according to the principles of the common law, every fact must be tried by a jury of the vicinage. The plain consequence of this principle was5 that those courts only could take jurisdiction of a case who were capable of directing such a jury as must try the material facts on which their judgement would depend. The jurisdiction of the courts therefore necessarily became local with respect to every species of action.

But the superior courts of England having power to direct a jury to every part of the Kingdom, their jurisdiction could be restrained by this principle only to cases arising on transactions which occurred within the realm. Being able to direct a jury either to Surry or Middlesex, the necessity of averring in the declaration that the cause of action arose in either county, could not be produced in order to give the court jurisdiction, but to furnish a venue.6 For the purpose of jurisdiction, it would unquestionably7 be sufficient to aver that the transaction took place within the realm.8

This however being not a statutory regulation, but a principle of unwritten law, which is really human reason applied by courts, not capriciously but9 in a regular train of decisions, to human affairs10—according to the circumstances of the nation, the necessity of the times, & the general state of things, was thought susceptible of modification, & Judges have modified it. They have not changed the old principle as to form. It is still necessary to give a venue; and where the contract exhibits on its face evidence of the place where it was made, the party is at liberty to aver that such place lies in any county in England.

This is known to be a fiction. Like an ejectment, it is the creature of the court, & is moulded to the purposes of justice according to the view which its inventors have taken of its capacity to effect those purposes. It is not11 however of undefinable12 extent. It has not absolutely prostrated all distinctions of place, but has certain limits prescribed to it founded in reasoning satisfactory to those who have gradually fixed these limits. It may well be doubted whether, at this day, they are to13 be changed by a Judge not perfectly satisfied with their extent.

This fiction is so far protected by its inventors that the averment is not traversable for the purpose of defeating an action it was invented to sustain; but it is traversable whenever such traverse may be essential to the merits of the cause. It is always traversable14 for the purpose of contesting a jurisdiction15 not intended to be protected by the fiction.

In the case at bar it is traversed for that purpose, & the question is whether this be a case in which such traverse is sustainable; or, in other words, whether courts have so far extended their fiction as, by its aid, to take cognizance of trespasses on lands not lying within those limits which bound their process.

They have, without legislative aid, applied this fiction to all personal torts,16 & to all contracts wherever executed. To this general rule contracts respecting lands form no exception. It is admitted that on a contract respecting lands17 an action is sustainable wherever the defendent may be found. Yet in such a case, every difficulty may occur which presents itself in an action of trespass. An investigation of title may become necessary. A question of boundary may arise, & a survey may be essential to the full merits of the cause. Yet these difficulties have not prevailed against the jurisdiction of the court. They have been countervailed & more than countervailed by the opposing consideration that, if the action be disallowed, the injured party may have a clear right18 without a remedy19 in a case where the person who has done the wrong & who ought to make the compensation, is within the power of the court.

That this consideration should lose its influence where the action pursues a thing not within the reach of the court, is of inevitable necessity; but for the loss of its influence where the remedy is against the person & can be afforded by the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgement.

If however this technical distinction be firmly established, if all other Judges respect it, I cannot venture to disregard it.

The distinction taken is that actions are deemed transitory where the transactions on which they are founded might have taken place any where; but are local where their cause is in its nature necessarily local.

If this distinction be established: if Judges have determined to carry their innovation on the old rule no further; if, for a long course of time, under circumstances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which20 I do not possess, to pass this limit.

This distinction has been repeatedly taken in the books, & is recognized by the best21 elementary writers, especially by Judge Blackstone, from whose authority no man will lightly dissent He expressly classes an action22 for a trespass on lands with those actions which demand their possession, &23 which are local, & makes only those actions transitory which are brought on occurrences that might happen in any place. From the cases which support this distinction no exception I beleive is to be found among those that have been decided in court on solemn argument.

One of the greatest Judges who ever sat on any bench, & who has done more than any other to remove those technical impediments which grew out of a different state of society, & too long continued to obstruct the course of substantial justice, was so struck with the weakness of the distinction between taking jurisdiction in cases of contract respecting lands, & of torts committed on the same lands, that he attempted to abolish it. In the case of Mostyn24 v FabrigasLord Mansfield stated the true25 distinction to be between proceedings which are in rem, in which the effect of a judgement can not be had26 unless the thing ly within the reach of the court, & proceedings against the person where damages only are demanded. But this opinion was given in an action for a personal wrong which is admitted to be transitory. It has not therefore the authority to which it would be entitled had this distinction been laid down in an action deemed local. It may be termed an obiter dictum. He recites in that opinion two cases decided by himself in which an action was sustained for trespass on lands lying in the foreign dominions of his Britannic Majesty;27 but both those decisions were at nisi prius: And though the overbearing influence of Lord Mansfield might have sustained them28 on a motion for a new trial, that motion never was made, & the principle did not obtain the sanction of the court.In a subsequent case reported in 4thD & E. these decisions are expressly referred to &29overruled, and the old distinction is affirmed.

It has been said that the decisions of British courts made since the revolution are not authority in this country. I admit it. But they are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide. Had the regular course of decisions previous to the revolution been against the distinction now asserted, and had the old rule been overthrown by adjudications made subsequent to that event, this court might have felt itself bound to disregard them; but where the distinction is of30 antient date, has been long preserved, & a modern attempt to overrule it has itself been overruled since the revolution, I can consider the last adjudication in no other light than as the true declaration of the antient rule.

According to the common law of England then, the distinction taken by the defendents counsel between actions local & transitory is the true distinction,31 & an action of trespass32 quare clausum fregit is a local action.

This common law has been adopted by the legislature of Virginia. Had it not been adopted I should have thought it in force. When our ancestors migrated to America they brought with them the common law of their native country so far as it was applicable to their new situation, & I do not concieve that the revolution would in any degree have changed the relations of man to man, or the law which regulated those relations. In breaking our political connection33 with the parent state,34 we did not break our connections with each other. It remained subject35 to the antient rules until those rules should be changed by the competent authority.

But it has been said that this rule of the common law is impliedly changed by the act of assembly which directs that a jury shall be summoned from the by standers.

Were I to discuss the effect of this act in the courts of the State,36 the enquiry whether the fiction already noticed was not equivalent to it in giving jurisdiction, would present itself. There are also other regulations, as that the jurors should be citizens, which would deserve to be taken into view. But I pass over these considerations because I am decidedly of opinion that the jurisdiction of the courts of the United States depends exclusively on the constitution & laws of the United States.37

In considering the jurisdiction of the circuit courts38 as defined in the judicial act, & in the constitution which that act carries into execution, it is worthy of observation that the jurisdiction of the court depends on the character of the parties, & that only the court of that district in which the defendent resides or is found can take jurisdiction of the cause. In a court so constituted, the argument drawn from the total failure of justice should a trespasser39 be declared to be only amenable to the court of that District in which the land lies & in which he will never be found appeared to me to be entitled to peculiar weight. But according to the course of the common law the process of the court must be executed in order to give it the40 right to try the cause, & consequently the same defect of justice might occur. Other Judges have felt the weight of this argument, & have struggled ineffectually against the distinction which produces the inconvenience of a clear right without a remedy. I must submit to it.

The law upon the demurrer is in favor of the defendent.

2d Dft (PPAmP: Marshall Judicial Opinions); in Marshall’s hand; undated; endorsed by Marshall: “Livingstone v Jefferson opinion.” 1st Dft (PPAmP: Marshall Judicial Opinions); in Marshall’s hand; undated; endorsed by Marshall: “Livingstone v Jefferson.” Only the most important textual differences between the drafts are noted below; each is printed separately in Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 7:276–88. Printed in Richmond Enquirer, 19 Dec. 1811, American Law Journal 4 (1813): 82–7, and The Federal Cases: comprising Cases Argued and Determined in the Circuit and District Courts of the United States (1894–97), 15:663–5 (case no. 8,411).

John Marshall (1755–1835), fourth chief justice of the United States, 1801–35, was born in Prince William County (in a section that became Fauquier County in 1759), rose from lieutenant to captain in the Continental army, 1776–81, and studied law under George Wythe at the College of William and Mary. He successively represented Fauquier and Henrico counties and the city of Richmond during eight terms in the Virginia House of Delegates between 1782 and 1797. Marshall supported the new United States Constitution at the state ratification convention of 1788 and was soon widely regarded as one of Virginia’s leading Federalists. He defended the Jay Treaty, took part in the ill-fated diplomatic mission to France of 1797–98, won election to the United States House of Representatives in 1799, and served as John Adams’s secretary of state from May 1800 until his appointment as chief justice in January 1801. Marshall’s long tenure on the United States Supreme Court was defined by his vigorous and largely successful attempt to keep the judiciary independent of politics, establish the Constitution as the supreme law of the land, and make the Supreme Court the final interpreter and arbiter of matters constitutional. With Marbury v. Madison (1803), the high court declared an act of Congress unconstitutional for the first time, and it struck down state laws and the decisions of state courts on other occasions. Service on the Supreme Court also entailed Marshall’s sitting on the federal circuit courts in Virginia and North Carolina. In this capacity he crafted a narrow, precedent-setting definition of treason while presiding over Aaron Burr’s 1807 Richmond trial, which ended in an acquittal. The popularity of Marshall’s five-volume Life of George Washington (Philadelphia, 1804–07; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 496; Poor, Jefferson’s Library description begins Nathaniel P. Poor, Catalogue. President Jefferson’s Library [1829] description ends , 4 [no. 133]) caused TJ to fear that a Federalist interpretation of the early national period would take hold in America. Marshall also participated in the Virginia state constitutional convention of 1829–30 (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ; DAB description begins Allen Johnson and Dumas Malone, eds., Dictionary of American Biography, 1928–36, 20 vols. description ends ; Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends ; Albert J. Beveridge, The Life of John Marshall, 4 vols. [1916–19]; Heitman, Continental Army description begins Francis B. Heitman, comp., Historical Register of Officers of the Continental Army during the War of the Revolution, April, 1775, to December, 1783, rev. ed., 1914 description ends , 381; Leonard, General Assembly description begins Cynthia Miller Leonard, comp., The General Assembly of Virginia, July 30, 1619–January 11, 1978: A Bicentennial Register of Members, 1978 description ends ; PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 31 vols. description ends , 29:278–9; Washington Daily National Intelligencer, 9 July 1835).

In his Commentaries on the Laws of England (Oxford, 1765–69; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 1806–7), 3:294, William blackstone stipulated that “In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c, affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be in that county in which the declaration is laid.” In mostyn v fabrigas, which involved an accusation of assault and false imprisonment brought by a native of Minorca against the governor of that island, Lord Mansfield ruled that the case could be tried in England (Henry Cowper, Reports of Cases Adjudged in the Court of King’s Bench [London, 1783], 161, 176; The English Reports, 98:1021, 1029). He based his decision on two cases: one involving an English naval captain who pulled down alehouses in Nova Scotia and the other regarding an admiral who destroyed fishing huts on the coast of Labrador (Cowper, Reports, 180–1; English Reports, 98:1032). nisi prius: a civil trial decided by a jury (Black’s Law Dictionary description begins Bryan A. Garner and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ). In the 1792 case of Doulson v. Matthews and Another, Judge Francis Buller overruled Mansfield by remarking that “It is now too late for us to enquire whether it were wise or politic to make a distinction being transitory and local actions: it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local” (Charles Durnford and Edward Hyde East, Reports of Cases argued and determined in the Court of King’s Bench [London, 1785–1800; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2087], 4:503–4; English Reports, 100:1144). Article III, section 1 of the United States constitution gave Congress the authority to “ordain and establish” a supreme court and such inferior courts as it saw fit. The circuit courts were duly created on 24 Sept. 1789 by “An Act to establish the Judicial Courts of the United States” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States . . . 1789 to March 3, 1845, 1855–56, 8 vols. description ends , 1:73–93).

1Preceding three words omitted in 1st Dft.

21st Dft: “Commonwealth.”

3Remainder of sentence in 1st Dft reads “this commonwealth?”

4Word interlined in place of “subject.”

5 American Law Journal: “is.” Here and below, Federal Cases follows American Law Journal unless otherwise indicated.

6 American Law Journal: “venire.”

7Word not in 1st Dft.

81st Dft here adds “& the averment of a county could have no object but to <direct> furnish a guide for a venue.”

9Preceding three words not in 1st Dft.

10In place of preceding two words the 1st Dft reads “the cases of individuals for the purposes of justice.”

11Word omitted in American Law Journal.

12 American Law Journal: “undeniable.”

13In place of preceding two words the 1st Dft reads “might.”

142d Dft: “traverable.” 1st Dft: “traversable.”

15Remainder of sentence in 1st Dft reads “of the court.”

161st Dft here adds “wherever the wrong may have been committed.”

17Preceding two words expanded in 1st Dft to read “executed in one place respecting lands lying in another.”

182d Dft: “righ.” 1st Dft: “right.”

19Remainder of sentence not in 1st Dft.

20Marshall here canceled “in this place I cannot venture.” Sentence from this point in 1st Dft reads “sitting in this place, I cannot venture on, to pass this limit.”

21Preceding two words not in 1st Dft.

22Marshall here canceled “quare.”

231st Dft here adds “with the action of waste.”

24 Enquirer and American Law Journal: “Mortyn.” Federal Cases: “Mostyn.”

251st Dft: “substantial.”

26Remainder of sentence in 1st Dft reads “if given by the court, & where the remedy sounds in damages.”

271st Dft reads “without the realm” instead of preceding eight words.

28Preceding two words, obscured in 2d Dft, supplied from 1st Dft.

29Preceding three words not in 1st Dft.

30Preceding three words omitted in American Law Journal.

31Remainder of sentence not in 1st Dft.

32Word omitted in American Law Journal.

33Reworked from “breaking off our connection.”

341st Dft: “mother country.”

35 Enquirer and American Law Journal: “subsequent.”

36Remainder of sentence not in 1st Dft, with sentence to this point positioned at conclusion of following sentence.

371st Dft ends here.

38Reworked from “of this court.”

39Preceding two words interlined in place of “the court of that defendent in cases of trespass.”

40Marshall here canceled “power.”

Index Entries

  • Blackstone, William; cited in Livingston v. Jefferson search
  • Blackstone, William; Commentaries on the Laws of England search
  • Buller, Francis; and Doulson v. Matthews search
  • Commentaries on the Laws of England (W. Blackstone) search
  • common law; and Livingston v. Jefferson search
  • Constitution, U.S.; cited in Livingston v. Jefferson search
  • Doulson v. Matthews search
  • Durnford, Charles; Reports of Cases Argued and Determined in the Court of King’s Bench search
  • East, Edward Hyde; Reports of Cases Argued and Determined in the Court of King’s Bench search
  • Great Britain; laws of search
  • law; common search
  • law; of Great Britain search
  • Livingston v. Jefferson; J. Marshall’s opinion in search
  • Mansfield, William Murray, 1st Earl of; cited in Livingston v. Jefferson search
  • Marbury v. Madison; and J. Marshall search
  • Marshall, John; identified search
  • Marshall, John; opinion in Livingston v. Jefferson search
  • Mostyn v. Fabrigas search
  • Reports of Cases Argued and Determined in the Court of King’s Bench (Durnford and East) search
  • Supreme Court, U.S.; and J. Marshall search
  • Supreme Court, U.S.; establishment of search
  • United States Circuit Court, Virginia District; and batture controversy search
  • United States Circuit Court, Virginia District; establishment of search
  • Virginia; laws of search