The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-12-19


lociuirc hardhood which do not possess,
20 pass this limit
Ibis distinction has been repeatedly taken
IN the books, and recognized by the best
Elementary writers, especially Judge Black
stone, from whose authority no man will
Tightly dissent. Hc expressly classes an
action FOR a .rcspaGs Gil lands with those &C
tons which demand tfcir possession. and
which are lccai, and makes ONLY those act;-
ons transitory wh;c, are brought CT occur
FENCES that might happen in anv place.
From the cases which support this distincti-
on no exception believe is to be found "a
mcng those that have been decided in court
On solemn argument.
One OF the greatest Judges who ever. sat OF.
anv bench, and who has done more than any
other to remove those technical ;mpedimcnts
which grew out of different state Of society.
and too long continued TO cbstruct the course
OF substantial justice, was so struck with the
weakness of the distinction between taking
jurisdiction in cases Of contract respecting
lands, and OF torts committed on the same
lands, that he attempted to abolish it. Jn
the case CT Mortyn V. Fabrgas, Lord Mans
Field stated the true distinction to be between
proceedings which are IN ,.cm in which the
effect OF Judgment Cannot be had, unless the
thing ly WITHIN the reach of the court, ard
proceedings against the person where DANA
-
was given in an action Cor 4 personal wrong
which is admitted to be transitory. 1t has
not therefore the authority to which it would
be entitled, had this distinction been laid down
III an action deemed local. 1T may be termed
an otfteT dictun. He recitcs in that opinion
two cases decided by himself, in which All
action was sustained for trespass on lands "
ing IN the foreign loninious OF his Britannia
Majesty but both those decisions were at
Avail ,,,.t,
tuence of Lord Mansfield, might have sus-.
tanned them OH a motion for new trial, that
motion never was made, and the principle
did not obtain the sanction of the court. in a
Subsequent case reported in 4th ID. & f..
these decisions arc expressly referred to and
overruled, and the old distinction is affirm
ed
1t has been said, that the decisions of Br;-
tish courts made since the revolution, are
not authority III this country. i admit it.
But they arc entitled to that respect which
is due to the opinions Of wise men who have
maturcly studied the subject they decide
Had the regular course of decisions pre-, ious
to the revolution, been against the distinction
now asserted, and had the cid rule been o.
vertlirown by adjudications made subsequent
to that event, this court mjghthave felt itself
bound to disregard them bun where the dis
function Is OF antient date, has been long pre-
has itself been ovcIrulcd since the revolution,
can consider the last adjudication in no o.
Their light than as the true declaration of the
antient rule.
According to the common law of England,
then, the distinction taken by the defendants
counsetspetwecn actions local and transitory,
is the true distinction, and an action of tres
pass qUa''e cfon$pm fregif is Il local action.
This common law has been adopted by the
legislature OF Virginia Had it not been Il
dopted, l should have thought it in force
When our ancestors migrated to America.
they brought with them t',c { mmon law of
their native Country so Ear as it was alplica-
bic to their new situation, and / do not con-
ceivc that the revolution would III any degree
nave changed tile relations OF man TO man,
or the law which regulated these relations.-
In breaking our political connection with the
parent state, we did not break our connccti-
on with each other. 1t remained subseq uent
to the antient rules, until these rules should
be changed by the competent authority
but 1t has been said that this rule of the
common law is implicitly changed by the act
OF assembly, which directs chat u jury shall
be summoned from the bye-standei's.
Were 1 to discuss the effect of this act in
the courts vt the state, the enquiry, whether
the fiction already noticed was not cquiva-
lent to It III giving jurisdiction, would present
itself There are also other regulations, as,
that the Jurors should be citizens, which
would deserve to be taken into Jew. But
pass over these considerations, Because ! am
decidedly cfopinion, that the Jurisdiction Of
the courts OF the United States depends eX-
Plusively on the constitution and laws Of the
United States.
In considering the jurisdiction of the circuit
courts as defined in the judicial act. ard III
the constitution which that act carries into
execution, it is worthy of observation that the
jurisdiction of the court depends on the cha
racter OF the parties, and that only the court
OF that district in which the defendant resides
oris found, can take jurisdiction OF the cause.
in court so constituted, the argument drawn
from the total failure of justice, should Il
treSpasser be declared to be only amenablc
to tho court of that district in wliich the land
lies, and. in which nc will never be found, APP
pcaTed to nc to DC entitled to peculiar weight.
But according to the course Of the common
law, the process of the court must be execG-
ted in order to give it the right TO try the
cause, and consequently the same defect %
justice might occur. Other Judges have felt
The weight Of this argument, and have strug-
g!ed Intellectually against the distinction
which produces the Inconvenience Of a clear
right without a remedy. j mast submit to IT,
The law upon the demurrer is in favor Of
the defendant.
IRGTSL.HTURE or VTRGIGT.A.
The following Preamble and Rcsciuti ons