Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/637

constitutional authority; since it would be at variance with all the habits, feelings, and institutions of the whole country. At least it might be affirmed, that congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event the retaining of the trial by jury would be a mere mockery. The real object of the provision was to retain the power of reviewing the fact, as well as the law, in cases of admiralty and maritime jurisdiction.^[1] And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury in civil cases, upon which the convention were greatly divided in opinion.

§ 1758. The Federalist met the objection, pressed with much earnestness and zeal, in the following manner:

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamours have been loud against it, as applied to matters of fact. Some well-intentioned men in this state, deriving their notions from the language and forms, which obtain in our courts, have been induced to consider it, as an implied supersedure of the trial by jury, in favour of the civil law mode of trial, which prevails in our courts of admiralty, probates, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But, if I am not misinformed, the same meaning would not be given to it in any part of New-England. There, an appeal from one jury to another is familiar

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1. 3 Elliot's Debates, 283.