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.
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