These sentences had prophecy in them. Indeed, they were to be repeated almost without change by the same man that now uttered them in debate, when he should ascend to the ultimate place of official interpretation of our fundamental law. While Hamilton's immortal state papers profoundly impressed Marshall, as we shall see, they were not, as many have supposed, the source of his convictions. In the Virginia Constitutional Convention of 1788 Marshall stated in debate the elements of most of his immortal Nationalist opinions.
But there was one exception. As to "disputes between a state and the citizens of another state," Marshall hoped "that no gentleman will think that a state will be called at the bar of a Federal court.... It is not rational to suppose that the Sovereign power should be dragged before a court. The intent is to enable states to recover claims of individuals residing in other states." If there were partiality in this—"if an individual cannot ... obtain judgment against a state, though he may be sued by a state"—it was a difficulty which could "not be avoided"; let the claimant apply to the State Legislature for relief.
The objection to suits in the National Courts between citizens of different States went "too far," contended Marshall. Such actions "may not in general be absolutely necessary," but surely in some such cases "the citizen ... ought to be able to recur to this [National] tribunal." What harm could it do? "Will he get more than justice there? What has he to get? Justice! Shall we object to this because the citizen of another state can obtain justice without applying to our state courts?" Indeed, "it may be necessary" in causes affected by "the laws and regulations of commerce" and "in cases of debt and some other controversies."... "In claims for land it is not necessary—but it is not dangerous."
These suits between citizens of different States "will be instituted in the state where the defendant resides, and nowhere else," expounded the youthful interpreter of the Constitution; and the case "will be determined by the laws of the state where the contract was made. According to those laws, and those only, can it be decided." That was no "novelty," but "a principle" long recognized in the jurisprudence of Virginia. "The laws which governed the contract at its formation, govern it in its decision." National Courts, in such controversies, would "preserve the peace of the Union," because if courts of different States should not give justice between citizens of those States, the result would be "disputes between the states." Also the jurisdiction of National Courts in "controversies between a state and a foreign state ... will be the means of preventing disputes with foreign nations"; for since "the previous consent of the parties is necessary ... each party will acquiesce."
As to "the exclusion of trial by jury, in this case," Marshall asked, "Does the word court only mean the judges? Does not the determination of the jury necessarily lead to the judgment of the court? Is there anything" in the Constitution "which gives the [National] judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts." If "a court has cognizance of facts," it certainly "can make inquiry by a jury," dryly observed Marshall.
He ridiculed Mason's and Henry's statement that juries, in the ten miles square which was to be the seat of the National Government, would be "mere tools of parties with which he would not trust his person or property." "What!" exclaimed Marshall, "Will no one stay there but the tools and officers of the government?... Will there not be independent merchants and respectable gentlemen of fortune ... worthy farmers and mechanics" in the National Capital just as there were in Richmond? And "will the officers of the government become improper to be on a jury? What is it to the government whether this man or that man succeeds? It is all one thing."
As to jury trial not being guaranteed by the National Constitution in civil cases, neither did Virginia's Constitution, said Marshall, "direct trials by jury"; and the provision was "merely recommendatory" concerning jury trials in the Bill of Rights, which, as everybody knew, was no part of the State Constitution. "Have you a jury trial when a judgment is obtained on a replevin bond or by default?" Or "when a motion is made by the Commonwealth against an individual ... or by one joint obligor against another, to recover sums paid as security." Of course not! "Yet they are all civil cases.... The Legislature of Virginia does not give a trial by jury where it is not necessary, but gives it wherever it is thought expedient." And Congress would do the same, he reassured the Convention.
Mason's objection, that the right to challenge jurors was not guaranteed in the Constitution, was trivial, said Marshall. Did Virginia's Constitution make such a guaranty? Did the British Constitution do so by any express provision? Was jury challenge secured by Magna Charta? Or by the Bill of Rights?[1311] Every Virginian knew that they were not. "This privilege is founded in their [English people's] laws," Marshall reminded the Convention. So why insert it in the American Constitution?
Thus the inhabitants of the Northern Neck or anybody else were not in danger on that score. Neither were they placed in jeopardy in any other way by the Constitution. Here Marshall made a curious argument. Mason, he said, had "acknowledged that there was no complete title[1312] [in Fairfax].... Was he [Mason] not satisfied that the right of the legal representatives of the proprietor [to collect quitrents] did not exist at the time he mentioned [the date of the Treaty of Peace]? If so, it cannot exist now," declared Marshall. "I trust those who come from that quarter [the Northern Neck] will not be intimidated on this account in voting on this question" he pleaded; for let them remember that there was "a law passed in 1782 [sequestration of quitrents] which secured this."
Let the "many poor men" who Mason had said might "be harassed by the representatives of Lord Fairfax" rest assured on that point; for "if he [Fairfax] has no right," they could not be disturbed. "If he has this right [to collect quitrents] and comes to Virginia, what laws will his claims be determined by?" By Virginia's laws. "By what tribunals will they be determined? By our state courts."[1313] So the "poor man" who was "unjustly prosecuted" would "be abundantly protected and satisfied by the temper of his neighbors."[1314]