in its usual modern sense, is the act by which a decision is brought for review from an inferior to a superior court. In Roman jurisprudence it was used in this and 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 Cæsar. 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 derived 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 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 European 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 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. 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 civilization and the art of self-government renders 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 through 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 careful to bring them as close as he can to those uniform principles 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 is a court of appeal from all the chief civil and criminal courts in the United Kingdom, except the High Court of Justiciary in Scotland. It is only, however, in questions coming from the Equity Courts and the Court of Session in Scotland, that the term appeal is employed. The references from the common law courts have the name writ of error, which more characteristically expresses the function of a court of last resort from tribunals not suspected of partiality or tyranny, as being less an appeal from injustice than an application to correct the law administered by the court below.

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 function 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 now only attend to give the sanction 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 were 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 talent 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 are 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 unprofessional members were resisted. The large proportional amount of the judicial work in the House of Lords caused by appeals from Scotland has been often noticed. It proceeds from two causes. In England there is a virtual appeal by writ of error from any one of the common law courts to the other two, not exemplified in Scotland. But there have always appeared to the disappointed Scottish litigant chances in his favour from his appeal lying to English judges against the Scottish judges who have decided against him. It has been said that such expectations have not always been disappointed, and that the English law lord has sometimes been unable so entirely to divest himself of professional prejudices, as to administer the law of Scotland without being biased by that of England. If the changes thus sometimes made in Scots law by such high authority have been improvements, yet it may justly be said that they should have been imparted by statute, not by judicial decisions.

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 corrupt that a determined effort was made to have their judgments 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 remedy of law," and was inserted as one of the national claims in the petition of right at the Revolution. 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.

A new tribunal has been lately erected for appeals from the Colonial courts, called the Judicial Committee of the Privy Council. It consists of the Lord President, the Lord Chancellor, and the holders of some other judicial offices when they are members of the privy council. Three members must be present to constitute an effective court, exclusive of the Lord President, who is the only unprofessional member of the court. It was constituted in 1833, and readjusted in 1851 (3d and 4th Will. IV., cap. 41, and 14th and 15th Vict., cap. 83). Appeal is generally the expression used for an application to revise summary judgments, as where the decision of one or two justices of peace may be referred to the quarter-sessions; and here, in some measure, the term retains its old meaning as a cry or appeal against injustice, since it is the remedy against the haste or ignorance with which it is not inaptly supposed that summary justice by unprofessional magistrates is administered. In Scotland the term appeal applies to the reference from the judgment of the sheriff-substitute to that of the sheriff.

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 general subject is briefly treated in the third book of the code of civil procedure.

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 be held, however, that this does not confer appellate jurisdiction, but only authorizes Congress to create it, so that it is presumed not to exist unless it be specially provided for and limited. In the words of Mr 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 he 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 authorized an appeal or writ of error from such a court."—(Commentaries, i., 524.)

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. A curious inquiry into this subject will be found in "An argument for construing largely the right of an appellee of murder to insist on trial by battle," by E. A. Kendall. See PARLIAMENT.

APPELLANT, in Law, one who appeals.