628
CONSTITUTION OF THE U. STATES.
[BOOK III.
the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law.[1] The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.
§ 1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the time of the adoption of the constitution, as it was supposed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification.[2] There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if congress should choose to carry it to that extreme latitude.[3] But, practically speaking, there was not the slightest danger, that congress would ever adopt such a course, even if it were within their- ↑ Wiscart v. Dauchy, 3 Dall. R. 321; S. C. 1 Peters's Cond. R. 144; Cohens v. Virginia, 6 Wheat. R. 409 to 412.
- ↑ See 1 Elliot's Debates, 121, 122; 2 Elliot's Debates, 346, 380 to 410; id. 413 to 427; 3 Elliot's Debates, 139 to 157; 2 Amer. Museum, 425; id. 534; id. 540, 548, 553; 3 Amer. Museum, 419, 420; 1 Tuck. Black. Comm. App. 351.
- ↑ 2 Elliot's Debates, 318, 347, 419; 3 Elliot's Debates, 140, 149; Rawle on Const. ch. 10, p. 135.
