Page:Federalist, Dawson edition, 1863.djvu/714

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570
The Fœderalist.

The following train of ideas may well be imagined to have influenced the Convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the reëxamination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary, that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the Courts of some of the States all causes are tried in this mode;[1] and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction, both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the National Legislature may prescribe. This will enable the Government to modify it in such a manner as will best answer the ends of public justice and security.

This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The Legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no reëxamination of facts,

  1. I hold that the States will have concurrent jurisdiction with the subordinate Fœderal judicatories, in many cases of Fœderal cognizance, as will be explained in my next paper. — Publius.