Cite as: 518 U. S. 415 (1996)
Scalia, J., dissenting
be had except upon the approval of the judge who presided over the trial and heard the evidence.5
I am persuaded that our prior cases were correct that, at common law, "reexamination" of the facts found by a jury could be undertaken only by the trial court, and that appellate review was restricted to writ of error which could challenge the judgment only upon matters of law. Even if there were some doubt on the point, we should be hesitant to advance our view of the common law over that of our forbears, who were far better acquainted with the subject than we are. But in any event, the question of how to apply the "rules of the common law" to federal appellate consideration of mo-5 See ibid. (new trial would be granted "if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith"). See, e. g., Berks v. Mason, Say. 264, 265, 96 Eng. Rep. 874, 874-875 (K. B. 1756); Bright v. Eynon, 1 Burr. 390, 97 Eng. Rep. 365 (K. B. 1757); see also Note, Limitations on Trial by Jury in Illinois, 19 Chi.-Kent L. Rev. 91, 92 (1940) ("An exhaustive examination of the early English cases has revealed not a single case where an English court at common law ever granted a new trial, as being against the evidence, unless the judge or judges who sat with the jury stated in open court, or certified, that the verdict was against the evidence and he was dissatisfied with the verdict").
Justice Stevens understands Blackstone to say that new trials were granted for excessiveness even where the nisi prius judge was not dissatisfied with the damages awarded, see ante, at 444-445. Blackstone's phrasing certainly allows for this reading, see n. 4, supra, but what indications we have suggest that the dissatisfaction of the presiding judge played the same role where the motion for new trial was based on a claim of excessive damages as where based on a claim of an erroneous verdict. See, e. g., Boulsworth v. Pilkington, Jones, T. 200, 84 Eng. Rep. 1216 (K. B. 1685); Redshaw v. Brook, 2 Wils. K. B. 405, 95 Eng. Rep. 887 (C. P. 1769); Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557 (C. P. 1774). The cases cited by Justice Stevens, ante, at 444-445, n. 5, are not at all to the contrary: In one, the case was tried at the bar of the court, so that there was no nisi prius judge, see Wood v. Gunston, Sty. 466, 82 Eng. Rep. 867 (K. B. 1655); in the other, the judge who had presided at trial was on the panel that ruled on the new trial motion, and recommended a new trial, see Bright v. Eynon, supra, at 390-391, 396-397, 97 Eng. Rep., at 365, 368.
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