Article 3, Section 2, Clause 2
[Volume 4, Page 374]
Federal Farmer, no. 1518 Jan. 1788Storing 2.8.189, 194
The supreme court, in cases of appeals, shall have jurisdiction both as to law and fact: that is, in all civil causes carried up the supreme court by appeals, the court, or judges, shall try the fact and decide the law. Here an essential principle of the civil law is established, and the most noble and important principle of the common law exploded. To dwell a few minutes on this material point: the supreme court shall have jurisdiction both as to law and fact. What is meant by court? Is the jury included in the term, or is it not? I conceive it is not included: and so the members of convention, I am very sure, understand it. Court, or curia, was a term well understood long before juries existed; the people, and the best writers, in countries where there are no juries, uniformly use the word court, and can only mean by it the judge or judges who determine causes: also, in countries where there are juries we express ourselves in the same manner; we speak of the court of probate, court of chancery, justices court, alderman's court, &c. in which there is no jury. In our supreme courts, common pleas, &c. in which there are jury trials, we uniformly speak of the court and jury, and consider them as distinct. Were it necessary I might site a multitude of cases from law books to confirm, beyond controversy, this position, that the jury is not included, or a part of the court.
But the supreme court is to have jurisdiction as to law and fact, under such regulations as congress shall make. I confess it is impossible to say how far congress may, with propriety, extend their regulations in this respect. I conceive, however, they cannot by any reasonable construction go so far as to admit the jury, on true common law principles, to try the fact, and give a general verdict. I have repeatedly examined this article: I think the meaning of it is, that the judges in all final questions, as to property and damages, shall have complete jurisdiction, to consider the whole cause, to examine the facts, and on a general view of them, and on principles of equity, as well as law, to give judgment.
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By the common law, in Great Britain and America, there is no appeal from the verdict of the jury, as to facts, to any judges whatever--the jurisdiction of the jury is complete and final in this; and only errors in laws are carried up to the house of lords, the special supreme court in Great Britain; or to the special supreme courts in Connecticut, New-York, New-Jersey, &c. Thus the juries are left masters as to facts: but, by the proposed constitution, directly the opposite principle is established. An appeal will lay in all appellate causes from the verdict of the jury, even as to mere facts, to the judges of the supreme court. Thus, in effect, we establish the civil law in this point; for if the jurisdiction of the jury be not final, as to facts, it is of little or no importance.
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago