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No. 81
A further view of the judicial department, in relation to the distribution of its authority
by Alexander Hamilton
A further view of the judicial department,
in relation to the distribution of its authority
Let us now return to the partition of the judiciary authority between different courts, and their relations to each other.
“The judicial power of the United States is to be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.”* That there ought to be one court of supreme and ?nal jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body, or a branch of the legislature. The same contradiction is observable in regard to this matter, which has been remarked in several other cases. The very men who object to the senate as a court of impeachments, on the ground of an improper intermixture of powers, are advocates, by implication at least, for the propriety of vesting the ultimate decision of all causes, in the whole, or in a part of the legislative body.
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the supreme court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power in the last resort, resides in the house of lords, which is a branch of the legislature; and this part of the British government has been imitated in the state constitutions in general. The parliament of Great Britain, and the legislatures of the several states, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the supreme court of the United States, will be uncontrolable and remediless.” This, upon examination, will be found to be altogether made up of false reasoning upon misconceived fact.
In the ?rst place, there is not a syllable in the plan, which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect, than may be claimed by the courts of every state. I admit, however, that the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention; but from the general theory of a limited constitution; and as far as it is true, is equally applicable to most, if not to all the state governments. There can be no objection, therefore, on this account, to the federal judicature, which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist in the particular organization of the supreme court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and in that of this state. To insist upon this point, the authors of the objection must renounce the meaning they have laboured to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excellent rule; yet it verges so nearly upon it, as on this account alone, to be less eligible than the mode preferred by the convention. From a body which had had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt to in?uence their construction: still less could it be expected, that men who had infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. Nor is this all: every reason which recommends the tenure of good behaviour for judicial of?ces, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the ?rst instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be de?cient in that knowledge. The members of the legislature will rarely be chosen with a view to those quali?cations which ?t men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information; so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear, that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides, will be to apt to sti?e the voice both of law and of equity.
These considerations teach us to applaud the wisdom of those states who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to these models is highly to be commended.
It is not true, in the second place, that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed constitution more than in either of them by which it is forbidden. In the former, as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies, in all its consequences, exactly in
the same manner and extent, to the state governments, as to the national government, now under consideration. Not the least difference can be pointed out in any view of the subject.
It may in the last place be observed, that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature, may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty from the general nature of the judicial power; from the objects to which it relates; from the manner in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the inference is greatly forti?ed by the consideration of the important constitutional check, which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the senate a court for the trial of impeachments.
Having now examined, and I trust removed, the objections to the distinct and independent organization of the supreme court, I proceed to consider the propriety of the power of constituting inferior courts,* and the relations which will subsist between these and the former.
The power of constituting inferior courts, is evidently calculated to obvi-ate the necessity of having recourse to the supreme court in every case of federal cognizance. It is intended to enable the national government to institute
or authorize in each state or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the state courts? This admits of different answers. Though the ?tness and competency of these courts should be allowed in the utmost latitude; yet the substance of the power in question, may still be regarded as a necessary part of the plan, if it were only to authorize the national legislature to commit to them the cognizance of causes arising out of the national constitution. To confer upon the existing courts of the several states the power of determining such causes, would perhaps be as much “to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favour of the state courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes: whilst every man may discover, that courts constituted like those of some of the states, would be improper channels of the judicial authority of the union. State judges, holding their of?ces during pleasure, or from year to year, will be too little independent to be relied upon for an in?exible execution of the national laws. And if there was a necessity for con?ding to them the original cognizance of causes arising under those laws, there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of con?dence in, or distrust of the subordinate tribunals, ought to be the facility or dif?culty of appeals. And well satis?ed as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention, I should consider every thing calculated to give, in practice, an unrestrained course, to appeals, as a source of public and private inconvenience.
I am not sure but that it will be found highly expedient and useful, to divide the United States into four or ?ve, or half a dozen districts; and to institute a federal court in each district, in lieu of one in every state. The judges of these courts may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted, and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is seen in the proposed constitution.
These reasons seem suf?cient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the union.
The supreme court is to be invested with original jurisdiction only “in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Public ministers of every class, are the immediate representatives of their sovereign. All questions in which they are concerned, are so directly connected with the public peace, that as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper, that such questions should be submitted in the ?rst instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a state might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities. A suggestion, which the following considerations prove to be without foundation.
It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will sat-isfy us, that there is no colour to pretend that the state governments would,by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which ?ows from the obligations of good faith. The contracts between a nation and individuals, are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against states for the debts they owe? How could recoveries be enforced? It is evident that it could not be done, without waging war against the contracting state: and to ascribe the federal courts, by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.
Let us resume the train of our observations. We have seen that the original jurisdiction of the supreme court would be con?ned to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals, and the su-preme court would have nothing more than an appellate jurisdiction, “with such exceptions, and under such 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 clamours 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 favour of the civil law mode of trial, which prevails in our courts of admiralty, probates, and chancery. A technical sense has been af?xed 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 a 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 it not 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. 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 the ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the supreme court of facts decided by juries in the inferior courts.
The following train of ideas may well be imagined to have in?uenced the convention, in relation to this particular provision. The appellate jurisdiction of the supreme court, it may have been argued, will extend to causes deter-minable in different modes, some in the course of the common law, others in the course of the civil law. In the former, the revision of the law only will be, generally speaking, the proper province of the supreme court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary, that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the states all causes
are tried in this mode;* and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be im-proper. To avoid all inconveniences, it will be safest to declare generally, that the supreme court shall possess appellate jurisdiction, both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt, that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the supreme court there should be no re-examination of facts, where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be quali?ed with a limitation to such causes only as are determinable at common law in that mode of trial.
The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that, in the partition of this authority, a very small portion of original jurisdiction has been reserved to the supreme court, and the rest consigned to the subordinate tribunals; that the supreme court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, but subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils, will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
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*This power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. But the expressions of the constitution are to constitute “tribunals inferior to the supreme court,” and the evident design of the provision is to enable the institution of local courts subordinate to the supreme, either in states or larger districts. It is ridiculous to imagine that county courts were in contemplation.
*This word is a compound of jus and dictio, juris, dictio or a speaking or pronouncing of the law.
*I hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in the next paper.
No. 81
续论司法部门，兼及司法权之分担
原载１７８８年麦克莱恩版
第八十一篇（汉密尔顿）
致纽约州人民： 
现在让我们回来讨论司法部门各级法院的分工以及彼此间的关系。 
（按宪法草案规定）“合众国之司法权属于最高法院及国会随时规定设置之下级法院①”。 
需建立最高法院以行使最后审判权的意见不甚可能产生异议，道理甚为明显并已在他处罗列，不需重复。这方面曾经有人提到的唯一问题是：此一最高司法机关应为一独立单位抑应为立法机关之一分支机构。提到的这一问题和前此论及的某些其他问题具有类似的矛盾性质，即以权力的不适当混淆为理由反对由参议院组成弹劾法庭，而同一些人又主张（至少是暗示）应将一切案件的最后审判权委之于立法机关的全部或其一个组 成部分。
此一主张的论据，或者说是暗示，可见于以下引文：“拟议中的合众国最高法院，作为一分别的独立单位将高踞于立法机关之上。最高法院按照宪法精神解释法律之权将使其随心所欲塑造原来法律面貌；尤其是其判决将不受立法机关的检查审订。此乃既无先例亦甚危险的作法。英国司法权最后掌握在立法机关的一院——上议院手中；英国政府的这一方面规定已为美国各州宪法所普遍采纳。英国国会与美国各州的立法机关可以随时以法律形式修订其各自法庭的具体判决。而合众国最高法院的错误判决与越权行为则无从节制，无法补救。” 
经过仔细考察可以发现以上论点的虚妄。
首先，拟议中的宪法草案并无只字直接授权国家法庭按照宪法精神解释法律，或在这方面授与国家法庭任何超过各州法庭的权力。但笔者同意宪法应作为解释法律的准绳，在二者发生明显矛盾时，法律应服从宪法。但此一原则并非由宪法草案任何特殊的新意所形成，而是根源于限权宪法的一般原则。此一原则对全部或大多数州政府也同样适用。因此，在这方面对联邦司法的任何反对意见亦即反对各州的地方司法，亦即反对试图规范立法机关权限的一切宪法。
或者，此一反对意见可以被解释为针对最高法院的组成方式，因其为一独立单位，非如英国政府及美国州政府中之作为立法机关的分支机构。反对者如欲坚持此点，则必须放弃其所追求的政府各部权力划分的著名原则。尽管可以退一步承认，按照前文对分权原则的阐述，将最后审判权委之于立法机关的一部可以不算违反。但虽非绝对违反这一完美原则，仅接近于违反这一点亦足以因而弃之而选择宪法草案所提出的方案。即使立法机关仅有通过不良法律的部分可能，亦难期待其在实施中产生稳健而不过分的情绪。很容易在解释法律时流露出主导制定法律时的同样精神；更难期待相同一部分人作为立法人员违犯宪法行事，而作为法官时却会着手补救。不仅如此，且既已建议法官行为正当即可继续担任此职，则可完全否定将最后审判权授予一由任期有限的人员组成的单位掌握，使案件由任期长远的法官初审，最后交由任期短暂、人员变动的单位裁定，实为荒谬。更不合理的是：将根据其长期钻研、谙熟法律而被选任为法官者的判决交由缺乏这种条件的人去修正与节制。选举立法机关成员时很少考虑到适于任法官的条件。更应考虑到由于立法机关党派分歧的自然倾向，其所造成的难以实事求是的结果，亦有理由顾虑到派性的恶劣气氛可能侵入以公正不阿为其工作源泉的司法领域，不断形成对立面的习惯极易窒息法律与平衡概念。
由于以上考虑，笔者赞成若干州的作法，将最后司法权不委之于立法机关的一部， 而交付与一分开的独立机构。与视宪法草案此项规定为独出心裁、并无先例的看法相反，此种作法不过为新罕布什尔、马萨诸塞、宾夕法尼亚，特拉华、马里兰、弗吉尼亚、北卡罗来纳、南卡罗来纳与佐治亚州宪法的沿袭。宪法草案选择以上诸州宪法为蓝本实应 加以赞赏。
其次，上述所谓英国国会或若干州立法机关有权修正各有关法院的具体判决，而拟议中的合众国立法机关则无此权云云，亦与事实不符。无论是英国或是各州宪法均无以立法行动修正司法判决的授权；拟议中的宪法草案亦未较英国宪法或各州宪设立更多的禁区。不管前者或后者，不作此授权的唯一原因都是从法律与理性的一般原则出发的。立法机关在不超越其本身权力情况下并不能修正一件已经判决的案件；但立法机关可以为今后审判制定新的规则。在各州政府内全面实施的这一原则亦即拟议中的国家政府准备实施的原则。从任何角度均不能指出其任何差异。
最后可以指出，曾有人一再提到所谓司法机关侵犯立法机关权限的危险，其实并不存在。歪曲或违反立法机关意志的个别情况可能不时有所发生；但是，此种个别事例永远不可能达到影响或阻碍整个制度实施的程度。这可以从司法权的一般性质，从它所涉及的对象，从它行使司法权的方式，从它本身的相对软弱性，从它根本没有力量作为其超越本身权力的后盾等诸方面可以得到保证。而且又可以由下述一点重要宪法牵制得到确保，即宪法规定授予立法机关对司法人员实施弹劾之权，作法是由立法一院提出，另一院判决。仅此一点即足以保证永远不会发生法官不断有意侵犯立法机关权限以至引起立法机关联合起来加以反对的情事，因立法机关可用撤去其法官职务加以惩治。因此可以排除此一顾虑，同时亦说明参议院成立弹劾法庭实有必要。
在排除单独成立独立的最高法院的反对意见之后，以下可进一步考虑设立下级法院①与这种法院与前者关系的问题。
建立下级法院的用意显然是为了避免将属于联邦审理的一切案件悉交最高法院。其目的在于使全国性政府在合众国各邦或区域内设立或授权设立一种能够审理其辖区内属于全国性司法权性质案件的法庭。
于是又有人问：利用州法院以完成相同任务有何不可？这可以有几种不同答案。虽然州法院的资格与能力应尽量肯定，仅就国家立法机关应有权将涉及宪法案件的审理权授与地方法庭这一点而言，立法机关有建立下级法院权仍应视为宪法草案的必要条款。授与某些州现有法院以审理此类案件之权即相当于建立具有相同权力的新法院。但是，何以不在宪法草案中作一有利于州法院的直接而明确的规定？笔者认为确有充分理由不作如此规定。纵有高瞻远瞩之人也难预测地方主义情绪能否发展到使地方法院失去审理国家案件资格的程度，而且尽人皆可发现某些州法院的组成方式不宜于作为联邦司法系统的所属单位。州法院法官常为兼职，年年更换、独立性甚小，甚难期待其严格执行 国家法律。如确有将涉及国家法律案件委之于州法院的必要，则与之相应必须尽量敞开上诉之门。对下级法院是否寄于信托应与上诉之难易成正比。笔者虽能同意宪法草案中规定上诉司法应审理的案件种类，但对于实际上允许无限制上诉的各种设想不能苟同，此种设想实将为公私两方造成诸多不便。
笔者不敢肯定，但认为如将合众国分为四个或五、六个大区，每区设一联邦法院， 似远比每州设一联邦法院更为方便可行。此类法院的法官，在州法官协助下，可在各该大区中各地区巡回审理案件。此类法庭可迅速审理案件；上诉案亦能得以控制。笔者认为此一方案目前最为可取；为此，有必要全部采纳宪法草案中有关建立下级法院权的规 定。
以上理由似已充分说明，缺乏此项权力将为草案的一大缺陷。以下可进而讨论联邦最高法院与下级法院分工的问题。
最高法院初审案件仅限于“涉及大使、其他使节及领事以及以一州为诉讼一方之案件。”各类使节直接代表其主权国家。关于他们的一切问题直接与国家安全有关，为了维护国家安全并对他们所代表的主权国家表示尊重起见，此类案件初审即交国家最高司法机关始为方便与适当。尽管领事并非严格意义上的外交官员，亦为其国家的公务代理人员，以上考虑对他们在很大程度上亦能适用。将以一州为当事人的案件交给下级法庭将损害该州的尊严。
下面讨论的一点可能对本文主题有些偏离，但笔者愿乘此机会指出曾经引起惶恐不安的一种错误论点。有人曾经提出，在一州公债为另一州公民持有时，此人可向联邦法 院控告索还债款。这一设想实无根据。
作为拥有主权之一州不经其同意不受个人控告。这是由主权的固有性质所决定，法院拥有关于法律上与事实上之上诉司法权，而此项权力受国会所确定之例外与规章之限制。若此政府即可根据伸张正义、维护国家安宁的目的便宜行事。
从此观点出发即可毫不怀疑所谓放弃陪审制度的设想纯属虚妄。合众国立法机关当然拥有全权规定上诉至最高法院的案件对经由陪审团审理的案件事实不应复审。这当然会形成为一种有权威之例外规定；但如照上述理由考虑作此规定过于绝对化，亦可将对事实不得复审案件限在涉及习惯法一类案件之上。
以上关于司法部门权力范围的论述包括：此项权力已审慎限于明显属于国家司法审理案件之内；在权力划分方面，仅一小部分属于初审性质的司法权由最高法院保留，其余则划归下级法院；最高法院拥有上诉司法权，包括对一切交来案件法律上与事实上的审理，两方面均受一般认为应该作出的例外与规章所节制；此项上诉司法权在任何情况 下均不摒除陪审制度；在国家机构具有一般程度严紧作风与正直态度的情况下，即可保证建立此类司法机关使吾人得到切实利益，避免已经设想由此可能招致的任何不便。
普布利乌斯