h
regulations as the Congress shall make."

The propriety of this appellate jurisdiction has been scarcely called
in question in regard to matters of law; but the clamors 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 favor of the civil-law mode of
trial, which prevails in our courts of admiralty, probate, 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 both in language and practice, and is even
a matter of course, until there have been two verdicts on one side. The
word "appellate," therefore, will not be understood in the same sense in
New England as in New York, which 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 re-examination 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 re-examination 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.(3) This is jurisdiction of both fact and law; nor is
it even possible to sep