Canada.—In Canada each province has the regulation of its own courts of justice. In Ontario the judiciary are organized, under the Provincial Judicature Acts, in much the same manner as in England; and the review of decisions of inferior courts (by appeal or other proceedings based on English practice) is in the hands of the High Court of Justice, subject to appeal to the provincial court of appeal. In Quebec the highest court (king’s bench), besides its original jurisdiction, has appellate jurisdiction over the superior court (see Quebec Civil Procedure Code, art. 1114 et seq.). The jurisdiction is exercised by writ of error or by appeal, according to the nature of the decision appealed from. The judges of the superior court have also, under art. 494, power to review before three judges decisions of a judge of that court or of a circuit court (arts. 494-504). Nova Scotia, New Brunswick, Manitoba and British Columbia have supreme courts with appellate authority over decisions of single judges of the court and over inferior tribunals in the province. Appeals lie from the highest courts of each province, in civil matters, to the Supreme Court of Canada, or to the king in council in cases falling within the orders in council applying to each province, but in criminal matters to the king in council. From the Supreme Court of Canada no appeal lies as of right to the king in council (Dominion Act 1875, 38 Vic. c. 11, § 47), and the royal prerogative of granting special leave to appeal is sparingly exercised. The principles on which the judicial committee acts in advising for or against the grant of special leave in civil case& are stated in Daily Telegraph Newspaper Co. v. M‘Laughlin, 1904, L.R. A.C. 776. It is, however, as before, quite common for appeals to be brought direct to the privy council from the provincial courts without resort to the Dominion court (see Wheeler, Privy Council Law, p. 955).
Australia.—Each of the states of the Australian Commonwealth has its own supreme court. The Commonwealth parliament constituted in 1903 a High Court for Australia, which, besides its original federal jurisdiction, is also a court of appeal from the supreme courts of the constitutional states, or from any state court from which an appeal lay to the king in council at the establishment of the Commonwealth. The jurisdiction of the court is defined by the Judiciary Act of 1903, by which it is created. The right of appeal is given both as to criminal and civil matters.
South Africa.—In Cape Colony and Natal the appellate courts are the supreme courts, subject to further appeal in certain cases to the king in council. The superior courts of Cape Colony are empowered to review the proceedings of all inferior courts in the colony and its dependencies in cases where no appeal lies. There was for a time an appeal from the High Court of Orange River Colony to the supreme court of the Transvaal, and from that court (whether acting for its own colony or on appeal from the Orange Colony), an appeal to the king in council. In other colonies the provisions as to appeal follow more or less closely the lines of English law and procedure as to appeals, and in all cases the ultimate appeal is to the king in council.
United States.—In the American courts the term “appeal” covers (1) a removal of a cause to a higher court for retrial on all the questions of law or fact involved, or (2) taking up points of law only by proceedings in error, for revision by a higher court. Decrees in admiralty, bankruptcy and equity, in the federal courts, are the subjects of an appeal; judgments in actions at law, of a writ of error. On an equity appeal the evidence taken at the original hearing is reported at length to the appellate court, and it has the right to review the conclusions of fact reached by the court below and come to different ones. This, however, is seldom done, the appeal being almost always decided on points of law based upon the conclusions of fact reached in the original hearing. In admiralty appeals the conclusions of fact reached by the trial court are specially set forth, and are final.
“Appeal” in many of the states is the general term for reviewing any judgment of an inferior court on assignments of error. It is also often used to signify a mode of reviewing proceedings of municipal bodies, affecting the interests of particular persons, e.g. in matters of licences or assessments.
In criminal prosecutions an appeal, or writ of error on points of law, is almost everywhere allowed by statute to the defendant, and often to the state. (United States v. Sanges, 144 United States Reports, 310; State v. Lee, 65 Connecticut Reports, 265.)
By the constitution of the United States the Supreme Court is vested with “appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.” This provision is held not to create but only to authorize the creation of the jurisdiction. In the words of Chancellor Kent, “If 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 Supreme 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 authorized an appeal or writ of error from such a court (Commentaries, i. 324). The appellate jurisdiction of the court is now regulated by title 13 chap. ii. of the Revised Statutes of the United States (1873), §§ 690-710; and by the acts enumerated at p. 901 of the Revised Statutes, United States, 1873 to 1891. Under these statutes the Supreme Court may entertain appeals from the highest court of a state of the Union, but only (1) where the state court has decided against the validity of a treaty or statute of the United States, or of an authority exercised under the United States; (2) where a state court has affirmed the validity of a statute, or of an authority exercised which has been challenged on the ground of repugnance to the constitution, laws or treaties of the United States; (3) where the state court has decided against the existence of a title, right, privilege, or immunity claimed or set up under the constitution of, or under any statute, treaty, commission or authority of the United States.
The appeal from state courts is by writ of error, i.e. on law only; and applies as well in criminal as in civil cases. The Supreme Court will not act unless the federal question was raised in the court below (Chicago U.S. Mail Co. v. McGuire, 1904, 196, U.S. 128). The circuit court of appeals, established in 1891, deals with appeals from the district and circuit courts of the United States, except where other provision is made, e.g. where the jurisdiction of the court appealed from is in question; in prize causes and convictions of capital crimes (U.S. Statutes, 1801, c. 54. § 5); in cases involving the construction or application of the constitution; in cases arising in district or circuit courts involving the constitutional questions already stated as subject of appeal from state courts.
The review by the circuit court of appeals is effected by appeal or by writ of error, and its decision is final, with certain exceptions but with power to certify cases to the Supreme Court for instructions (1891, c. 511, § 6).
The Supreme Court hears appeals from the circuit court of appeals within the limits above stated, and appeals from the circuit and district courts in cases in which an appeal does not lie to the circuit court of appeals, and has power to issue a certiorari to transfer a case from the circuit court of Appeals.