APPEAL, in law. In the old English common law the term “appeal” was used to describe a process peculiar to English criminal procedure. It was a right of prosecution possessed as a personal privilege by a party individually aggrieved by a felony, a privilege of which the crown could not directly or indirectly deprive him, 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. When in 1729 (after Colonel Oglethorpe’s inquiry and report on the London prisons) Banbridge and other gaolers were indicted for their treatment of prisoners, but were acquitted for deficiency of evidence, appeals for murder were freely brought by relatives of deceased prisoners. In the case of Slaughterford (1708) the accused was charged with murdering a woman whom he had seduced; the evidence was very imperfect, and he was acquitted on indictment. But public indignation being aroused by the atrocities alleged to have been perpetrated, 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 an appeal was ingeniously met by an offer of battle, since if the appellee were an able-bodied man he had the choice between combat or a jury (see [Wager]). This neutralizing 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 in 1819. The history of this appeal is fully dealt with in Pollock and Maitland, History of English Law, 1898.
In its usual modern sense the term appeal is applied to the proceeding by which the decision of a court of justice is brought for review before another tribunal of higher authority. 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 appellare (“call”) suggests that its earliest meaning was an urgent outcry or prayer against injustice. During the republic 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. Under the empire different grades of jurisdiction were established, and the ultimate remedy was an appeal to the emperor; thus Paul, when brought before Festus, appealed unto Caesar. Such appeals were, however, not heard by the emperor in person but by a supreme judge representing him. 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.
During the middle ages full scope was afforded for appeals from the lower to the higher authorities in the church. In matters ecclesiastical, including those matrimonial, testamentary 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 claims of the church to engross appeals in matters trenching on the temporal rights of princes led to continual conflicts between church and state, terminated in England at the reformation by the suppression in 1534 of appeals to Rome, which had previously been discouraged by legislation of Edward III. and Richard II.
In temporal, as distinct from spiritual matters, it became customary for ambitious sovereigns to encourage appeals from the courts of the crown vassals to themselves as represented by the supreme judges, and Charlemagne usually enjoys the credit of having set the example of this system of centralization by establishing missi dominici. It is not improbable that his claim was suggested or justified by the practice of the Roman empire, to the sovereignty whereof he claimed to be successor.
England.—When the royal authority in England grew strong as against that of the tenants in capite, the king’s courts in England were more effectively organized, and their net swept wider so as to draw within their cognizance matters previously adjudged in courts baron or courts leet or in the county court, and they acquired authority to supervise and review the decisions of the inferior and local courts, to control and limit their claims to exercise jurisdiction, and to transfer causes from the local to the royal courts. The machinery by which this process was usually effected, under the common law, was not by what is now known as appeal, but by the process of certiorari or writs of error or prohibition. Recourse was also had against the decisions of the royal courts by appeal to the great council of the king, or to parliament as a whole. The supremacy of the king’s courts over all causes, as well ecclesiastical as civil, has been completely established since the reign of Henry VIII., and they have effectually asserted the power to regulate and keep within their proper jurisdiction all other tribunals within the realm. Since that date the organization of judicial tribunals has gradually been changed and improved with the object (1) of creating a judicial hierarchy independent of executive control; (2) of ensuring that all decisions on questions of law shall be co-ordinated and rendered systematic by correction of the errors and vagaries of subordinate tribunals; and (3) of securing so far as possible uniformity in the judicial interpretation and administration of the law, by creating a supreme appellate tribunal to whose decisions all other tribunals are bound to conform. It would be undesirable to detail at length the history of appellate jurisdiction in England, involving as it would the discussion in great detail of the history and procedure of English law, and it may suffice to indicate the system of appeals as at present organized, beginning with the lowest courts.
Justices of the Peace.—The decisions of justices of the peace sitting as courts of summary jurisdiction are subject to review on questions of law only by the High Court of Justice. This review is in a sense consultative, because it is usually effected by means of a case voluntarily stated by the justices at the request of the aggrieved party, in which are set forth the facts as determined by the justices, the questions of law raised and their decision thereon, as to the correctness whereof the opinion of the High Court is invited. The procedure is equally open in criminal and civil matters brought before the justices. But when the justices decline to state a case for the opinion of the High Court, the latter, if review seems desirable, may order the justices to state a case. And the High Court has also power to control the action of justices by prohibiting them from acting in a case beyond their jurisdiction, ordering them to exercise jurisdiction where they have improperly declined (mandamus), or bringing up for review and quashing orders or convictions which they have made in excess of jurisdiction, or in cases in which interested or biassed justices have adjudicated (certiorari). None of these regulative processes exactly corresponds to what is popularly known as an appeal, but in effect if not in form an appeal is thus given.
There is also another form of appeal, in the fullest sense of the term, from the decision of justices sitting as a court of summary jurisdiction to the justices of the same county sitting in general or quarter sessions, or in the case of a borough to the recorder as judge of the borough court of quarter sessions. This form of appeal is in every case the creation of statute: and even in text-books it is hardly possible to find a really complete list of the matters in respect of which such appeal lies. But as regards criminal cases there is an approximately general rule, given by § 19 of the Summary Jurisdiction Act 1879, viz. that an appeal to quarter sessions lies from the conviction or order of a court of summary jurisdiction directing imprisonment without the option of a fine as a punishment for an offence, or for failing to do or to abstain from doing any act required to be done or left undone other than an order for the payment of money, or to find sureties or give security or to enter into a recognizance, or a conviction made on a plea of guilty or admission of the truth of the matter of complaint.
As a general rule, subject to particular statutory exceptions, appeals of this kind are by way of rehearing, i.e. the actor or prosecutor must before the appellate tribunal call his witnesses and prove his case just as if no previous hearing had taken place before the court appealed from (Pritchard, Quarter Sessions Practice, 2nd ed., 461). The only limit is that the appellant must confine himself to the grounds of appeal stated in the notice of appeal given by him.