If we understand the appellate jurisdiction in any other way, we shall be left utterly at a loss to give it a meaning. The common law is a stranger to any such jurisdiction: no appeals can lie from any of our common law courts, upon the merits of the case. The only way in which they can go up from an inferior to a superior tribunal is by habeas corpus before a hearing, or by certiorari, or writ of error, after they are determined in the subordinate courts. But in no case, when they are carried up, are the facts re-examined, but they are always taken as established in the inferior court.
THE POWER OF THE JUDICIARY (PART IV)
See the Headnote to Antifederalist No. 78-79. The following paper consists of the second part of the fourteenth essay by "Brutus" which appeared in the March 6, 1788, issue of The New-York Journal; and the last part of the fifteenth essay, same author, same source, March 20, 1788.
It may still be insisted that this clause [on appellate jurisdiction] does not take away the trial by jury on appeals, but that this may be provided for by the legislature, under that paragraph which authorises them to form regulations and restrictions for the court in the exercise of this power.
The natural meaning of this paragraph seems to be no more than this, that Congress may declare, that certain cases shall not be subject to the appellate jurisdiction, and they may point out the mode in which the court shall proceed in bringing up the causes before them, the manner of their taking evidence to establish the facts, and the method of the court's proceeding. But I presume they cannot take from the court the right of deciding on the fact, any more than they can deprive them of the right of determining on the law, when a cause is once before them; for they have the same jurisdiction as to fact, as they have as to the law. But supposing the Congress may under this clause establish the trial by jury on appeals. It does not seem to me that it will render this article much less exceptionable. An appeal from one court and jury, to another court and jury, is a thing altogether unknown in the laws of our state [ New York], and in most of the states in the union. A practice of this kind prevails in the eastern states: actions are there commenced in the inferior courts, and an appeal lies from them on the whole merits to the superior courts. The consequence is well known. Very few actions are determined in the lower courts; it is rare that a case of any importance is not carried by appeal to the supreme court, and the jurisdiction of the inferior courts is merely nominal; this has proved so burdensome to the people in Massachusetts, that it was one of the principal causes which excited the insurrection in that state, in the year past. [There are] very few sensible and moderate men in that state but what will admit, that the inferior courts are almost entirely useless, and answer very little purpose, save only to