shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision, (in a new Government it must depend on the latter,) and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the reëxamination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the Court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.
But it does not follow that the reëxamination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior Court of law in this State, that the latter has jurisdiction of the fact, as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.[1] This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law Courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a reëxamination in the Supreme Court of facts decided by juries in the inferior Courts.
- ↑ This word is composed of jus and dictio, juris dictio, or a speaking or pronouncing of the law.—Publius.
