[Here Mr. Mason proposed an alteration nearly the same as the first part of the fourteenth amendment recommended by the Convention which see at the conclusion.]
Thus, sir, said Mr. Mason, after limiting the cases in which the federal judiciary could interpose, I would confine the appellate jurisdiction to matters of law only, in common-law controversies.
It appears to me that this will remove oppressions, and answer every purpose of an appellate power.
A discrimination arises between common-law trials and trials in courts of equity and admiralty. In these two last, depositions are committed to record, and therefore, on an appeal, the whole fact goes up; the equity of the whole case, comprehending fact and law, is considered, and no new evidence requisite. Is it so in courts of common law? There evidence is only given viva voce. I know not a single case where there is an appeal of fact as to common law. But I may be mistaken. Where there is an appeal from an inferior to a superior court, with respect to matters of fact, a new witness may be introduced, who is perhaps suborned by the other party, a thousand miles from the place where the first trial was had. These are some of the inconveniences and insurmountable objections against this general power being given to the federal courts. Gentlemen will perhaps say there will be no occasion to carry up the evidence by viva voce testimony, because Congress may order it to be committed to writing, and transmitted in that manner with the rest of the record. It is true they may, but it is as true that they may not. But suppose they do; little conversant as I am in this subject, I know there is a great difference between viva voce evidence given at the bar, and testimony given in writing. I leave it to gentlemen more conversant in these matters to discuss it. They are also to have cognizance in controversies to which the United States shall be a party. This power is superadded, that there might be no doubt, and that all cases arising under the government might be brought before the federal court. Gentlemen will not, I presume, deny that all revenue and excise controversies, and A proceedings relative to the duties of the officers of government, from the highest to the lowest, may and must be wrought by these means to the federal courts; in the first instance, to the inferior federal court, and afterwards to the
