1902 Encyclopedia > Appeal


APPEAL, in its usual modern sense, is the act by which a decision is brought for review from an inferior to a supe-rior court. In Roman jurisprudence it was used in this and in other significations; it was sometimes equivalent to prosecution, or the calling up of an accused person before a tribunal where the accuser appealed to the protection of the magistrate against injustice or oppression. The derivation from the word appello, naturally shows its earliest meaning to have been an urgent outcry or prayer against injustice. Hence it inferred a superior power capable of protecting against petty tyranny. In its meaning of seeking a higher tribunal for recourse against a lower, it does not seem to have been a characteristic of the Republic, where the magistrate was generally supreme within his sphere, and those who felt themselves outraged by injustice threw themselves on popular protection by provocatio, instead of looking to redress from a higher official authority. The Empire, however, introduced grades of jurisdiction, and the ultimate remedy was an appeal to the emperor; thus Paul, when brought before Festus, appealed unto Caesar. It must be understood that the appeal was actually dealt with by a supreme judge representing the emperor, not by the emperor in person. In the Corpus Juris, the appeal to the emperor is called indiscriminately appellatio and provocatio. A considerable portion of the 49th book of the Pandects is devoted to appeals; but little of the practical operation of the system is to be deduced from the propositions there brought together.

The ecclesiastical hierarchy, and the gradations of the feudal system, naturally afforded scope in the Middle Ages for appeals from the lower to the higher authority. In matters ecclesiastical, including these matrimonial, testamen-tary, and other departments which the church ever tried to bring within the operation of the canon law, there were various grades of appeal, ending with the Pope. The Eu-ropean princes in general struggled against this assumption of authority by the court of Rome, and it was the source of many contests between the ecclesiastical and the regal power.

It became customary for ambitious sovereigns to encou-rage appeals from the courts of the crown vassals to them-selves as represented by the supreme judges, and Charle-magne usually enjoys the credit of having set the example of this system of centralisation, by establishing missi domi-nici. The great vassals, however, sought recourse against the decisions of the royal courts in their own order, embodied as the great council or parliament of the nation, and hence arose the appeal to the House of Lords as the court of last resort.

When the progress of civilisation and the art of self-government render judges no longer amenable to the charge of tyranny or fraud, an appellate system changes its character and objects. It in some measure certainly tends to preserve that judicial integrity which renders it unnecessary as the immediate refuge of the persecuted suitor. But its ostensible object is the preservation of uniformity in the law. The attainment of this object renders it unfortunately necessary, in such a country as ours, that no tribunal shall give, in the first instance, in any important question, a decision which is not open to appeal. The process has the double advantage, that it has a tendency to bring every legal difficulty ultimately to one tribunal, where a uniformity of principle may be expected in the application of the law, and, at the same time, stimulates the exertions of the subordinate judge, who knowing that his proceedings will be revised, is care-ful to bring them as close as he can to those uniform prin-ciples of law, which he knows that the court of appeal will apply. To accomplish this function of an appellate system, it is right that the investigation of the question at issue should have been exhausted in the inferior court, and that the court of appeal should have nothing before it which has not been there considered; for if the inferior court decide on one representation of circumstances, and the court of appeal on another, the public will lose the advantage of having the principle which was applied in the inferior reversed or affirmed in the superior tribunal.

The House of Lords has hitherto been a court of appeal from the chief civil courts in the United Kingdom. The origin of the appellate jurisdiction of the House of Lords was undoubtedly of that partly feudal and partly popular character already alluded to, which made the suitor seek justice from the high court of Parliament, when it was refused in the baronial court, or even by the king's judges. Hence the lords exercised the mixed func-tion of jurymen and judges, and, as in judgments on impeachment, the house might be influenced by private or party considerations, debating and dividing on the question before them. A revolution was silently accomplished, however, by which the function of reviewing the decisions of the courts'fell entirely to the lawyers raised to the peerage, or to other judges brought in to give their aid; and the unprofessional lords only attended to give the sanc-tion of a quorum to the proceedings. The letters and memoirs, so late as Queen Anne's reign, show that party or personal influence and persuasion were employed to procure votes on appeals, as they have in later times on railway or other local bills. The last instance probably in which a strong division of opinion was manifested among the unprofessional lords was the celebrated Douglas cause in 1769, when the house was addressed by the dukes of Newcastle and Bedford, but was led by the authoritative opinion of Lord Mansfield on the effect of the evidence,— an opinion which, being treated rather as that of a political partisan than of a judge, was sharply commented on in a work of great ability written by Mr James Stuart, who had a deep personal interest in the cause. The case of O'Connell and others, brought up on writ of error from the Queen's Bench in Ireland, in 1844, may be said to have finally established the precedent, that the judgments of the House of Lords were to be given solely by the law lords. On that occasion there was a difference of opinion among the law lords themselves. The judgment of the majority was strongly against the political feeling of the Government and of the peers as a body, while the law lords who carried the decision had been appointed by previous Governments opposed in politics to the existing cabinet. But all these temptations to a party vote by the unprofes-sional members were resisted. It has been the constant practice of the House, in cases of difficulty, to consult the judges of the inferior courts, and the decision of the House is usually determined by their opinion.

Of old, in Scotland, there was something anomalous in an appeal to Parliament, as the Court of Session was in its original constitution a committee of Parliament, for the performance of its judicial functions. In the reign of Charles II., however, the courts grew so intolerably cor-rupt that a determined effort was made to have their judg-ments overturned, by an appeal which was strictly of the old character of a cry for protection against flagrant injustice. It was called a " protest for remeid of law," and was inserted as one of the national claims in the Peti-tion of Right at the Bevolution. There was no allusion to an appeal system in the Treaty of Union ; but the House of Lords, when appealed to against the judgments of the Court of Session, acted without hesitation. Many attempts were made, but without effect, to carry appeals from the supreme criminal courts in Scotland to the House of Lords.

The appeal system of this country previous to the Judicature Act of 1873 was constituted in the following manner. The House of Lords sat during the parliamentary session to hear appeals from the superior Courts of Equity and Common Law, from the corresponding courts in Ireland, and from the Court of Session in Scotland. In none of these cases, however, was the appeal directly from the judge of first instance to the final court. In the Com-mon Law Courts, an appeal, under the name of a writ of error, was given from the decision of any one of the Common Law Courts to the decision of members of the other two, sitting in what was called the Court of Exchequer Chamber, and from that court to the House of Lords. In Equity the decisions of the Vice-Chancellors were subject to review before an appeal court, composed of the Lord Chancellor and two Lords Justices of appeal. The same procedure was observed in Ireland. In Scotland the appeal began by a reclaiming note from the Lord Ordinary to one of the divisions of the Court of Session, from which it passed to the House of Lords. The Judi-cial Committee of the Privy Council served as a court of final appeal for admiralty, ecclesiastical, and colonial cases. Established in 1833 to hear complaints by way of appeal addressed to her Majesty in Council, it was reconstituted in 1851, and again in 1870. At first it was a court com-posed entirely of ex officio judges, but in 1870 four paid judges were appointed—the composition of the court being varied from time to time by the addition of other members specially qualified to consider the special cases in hand. Thus, in ecclesiastical appeals the attendance of certain qualified prelates was provided for. The inconvenience of having two independent courts of final appeal, the unsatis-factory character of the intermediate process, and the uncertain composition of the appeal court in the House of Lords, were among the chief considerations which suggested the recent judicature reform. By the 36 and 37 Vict. c. 66, the several supreme courts are united and consolidated together under the name of the Supreme Court of Judica-ture in England. The Supreme Court is divided into two great tribunals, the first of which is called the High Court of Justice, and the second the Court of Appeal. The latter is invested with all the powers of the superior appeal courts previously existing, but it may be briefly described as a court of appeal from the High Court of Justice. Power is given to her Majesty to transfer by order all appeals and petitions which ought to be heard by the Judicial Committee of the Privy Council to the Court of Appeal. In ecclesias-tical cases it is provided that the Court of Appeal " shall be constituted of such, and so many judges thereof, and shall be assisted by such assessors, being archbishops or bishops of the Church of England," as her Majesty, by any general rule, may think fit to direct. Appeals from inferior tribunals (County Courts, Petty, or Quarter Sessions) are to be determined by the divisional courts of the High Court of Justice, and no further appeal is possible unless by special leave of the divisional court. Appeals may be heard either by the full court of appeal, or by divisional courts thereof, consisting of not less than three judges, and any number of such courts may sit at the same time. The Court of Appeal shall consist of five ex officio and not more than nine ordinary judges; her Majesty may also appoint as additional judges, from time to time, persons who have held certain high judicial offices in the United Kingdom or in India. The Lord Chancellor is President of the Court of Appeal, and the ordinary or additional judges are to be styled Lords Justices of Appeal.

The Judicature Act of 1873 made no provision for transferring the Scotch and Irish business of the House of Lords to the new Appeal Court, and it is worthy of mention that a successful motion to that effect in the House of Commons was treated by the other house as a breach of its privileges, and was finally abandoned. The Amend-ment Bill of 1874 (withdrawn for want of time at the close of the session) supplied this deficiency, and made some changes in the divisional arrangements of the Appeal Court. Although under the Act of 1873 there was nominally only one appeal, yet as the court was to sit in division, it was feared that there might be some danger of these divisions gradually developing independent and con-tradictory principles of jurisprudence. It was therefore proposed that one division of the Appellate Court should sit to hear Scotch and Irish and important colonial cases, the rest of the court sitting in sections according to con-venience. Should there be a disagreement of opinion among the judges of these lower sections, a rehearing before the first division was to be permitted.

The large proportional amount of the judicial work in the House of Lords, caused by appeals from Scotland, has often been noticed. It proceeds from two causes. In England there was a virtual appeal for writ of error from one of Common Law Courts to the other two, not exemplified in Scotland. But there have always appeared to the dis-appointed Scotch litigant chances in his favour from his appealing to English judges against the Scotch judges who have decided against him; and the House of Lords being not only a court of law, but a House of Parliament, was believed to be at liberty to take wider views of legal questions than the constitution permitted to the inferior courts. Under the new system, proposed in the Bill of 1874, appeals for Scotland will only be allowed when the cause involves money to the amount of ¿£500, or points of law relating to the right of property. It may be doubted whether the principle of such restriction can in any case be defended, and it is clear that the limit fixed by the bill would exclude many causes of great commercial importance. No express provision is made for the presence of a Scotch judge in the Court of Appeal, but Scotch advocates and judges are to be eligible for appointments to that tribunal, and there would probably always be one, at least, of its members selected for his acquaintance with the law of Scotland.

In France the adoption of the nomenclature of the civil law has made the term, in its French shape of appel, of more comprehensive use to express references from a lower to a higher tribunal, than in this country.

The United States, in adopting the structure of the English law, brought with it the practice of appeal and writ of error, but the federal constitution and the jealousy of central power have practically restricted the operation of the system. By the constitution, the Supreme Court of the United States is vested with " appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as Congress should make." It appears to have been held, however, that this does not confer appel-late jurisdiction, but only authorises Congress to create it. In the words of Mr Kent, "II Congress had not provided any rule to regulate the proceedings in appeal, the court could not exercise an appellate jurisdiction : and, if a rule be provided, the Court could not depart from it. In pursuance of this principle, the Court decided in Clarke v. Bazadone, that a writ of error did not lie to that court from a court of the United States territory north-west of the Ohio, because the act had not authorised an appeal or writ of error from such a court."-—(Commentaries, L 324.) It was urged that the constitution itself had vested appellate jurisdiction in the Supreme Court, but that Congress may introduce such exceptions as it thinks proper. The action of Congress, it was said, is not re-quired to create the jurisdiction, but is sufficient at any time to remove any part of it. The Court, however, has adhered to the view that its appellate jurisdiction is limited by the judiciary statutes, which are to be understood as making exceptions, and implying a negative on the exercise of such power in every case but those in which it is affirmatively given.

A peculiar and pernicious process which existed until a late period in English criminal law, received the name of appeal. It was a right of prosecution possessed as a personal privilege by an injured party, of which the Crown could not deprive him, directly or indirectly, since he could use it alike when the prisoner was tried and acquitted and when he was convicted and pardoned. It was chiefly known in practice as the privilege of the nearest relation of a murdered person, and was generally employed when the public passions were roused against the accused, on account, not so much of the evidence against him as the atrocity of the crime. Thus, after Colonel Oglethorpe's inquiry and report on the London prisons, when, in 1729, Banbridge and the other jailors were acquitted on indictments for deficiency of evidence, they were hotly pursued by appeals of murder. In the case of Slaughterford, in 1708, the public indignation was roused by the atrocity with which the accused was charged with murdering the woman he had seduced. The evidence was very imperfect, and he was acquitted on indictment ; but an appeal was brought, and on conviction he was hanged, as his execution was a privilege belonging to the prosecutor of which the Crown could not deprive him by a pardon. In 1818 a parallel case occurred, when the appeal was ingeniously met by an offer of battle, since if the appellee were an able-bodied man, he had the choice of the two ordeals, combat or a jury. This neutralising of one obsolete and barbarous process by another, called the attention of the Legislature to the subject, and appeal in criminal cases, along with trial by battle, was abolished by 59th Geo. III., cap. 46.

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