Appeal is the bringing before a higher court the judgment of a lower court which the appellant represents as erroneous in fact or law. Formerly this right was a guarantee against political oppression and private extortion; now the aim is to secure uniformity in the administration of justice, and is effected not merely by the reversal, on appeal, of erroneous judgments, but by the knowledge which every judge has of precedents in the Supreme Court, and that his own judgments are subject to appeal. The most important questions connected with the modern system of appeal are: (1) Whether in all cases, of whatever pecuniary value, appeal is allowed, and also whether at all stages, or only after final judgment; (2) On what conditions, as regards time, interim execution, and security for costs, appeal is allowed; (3) The relative constitution of the lower and higher courts.
In the civil law, the earliest form of appeal was the provocatio from the judgment of a criminal court to the Roman people. This fell into disuse under the Questiones Perpetue. The appellatio was a veto or interdict granted upon the intercessio of one complaining of a judicial act. The subordination of judges increased largely under the empire, and for some time the emperor, who was tribune for life and also proconsul, was the only final court of appeal. Latterly, the senate and the prætorian prefects also gave final decisions. Only six months were given for appeal from the most distant provinces. The law is stated in detail in the Digest, lib. xlix.
In the Christian Church, under the judicial system defined in the False Decretals, frivolous appeals direct to the Roman Consistory multiplied enormously. The remonstrances of St Bernard were gradually given effect to by the Lateran and Basel Councils, and wholesome restrictions on the right of appeal, and in favour of the independence of Cisalpine church courts, passed into most modern concordats. Even the indirect recognition of the judicial supremacy of the pope was in England made a statutory offence under the name of Præmunire. The famous appel comme d'abus in France was originally an appeal to civil justice against the encroachments of church jurisdiction. Enough has been said to show how closely the question of appeal is connected with the great problems of political history—national independence, the relations of central and provincial authorities, &c.
In English law, prior to the Judicature Acts, 1873 and 1875, the word appeal was not commonly used. In common law courts, there was a proceeding in 'error' by 'assignment of error' and 'joinder of error.' The old 'writ of error' and 'writ of false judgment' are still sometimes used in bringing up the proceedings of certain inferior courts. In Chancery, the appeal was formerly called 're-hearing,' the Vice-chancellor being regarded as the delegate of the Lord Chancellor. Under the modern system of 'fusion,' every judgment in the High Court of Justice (except a judgment of the Court of Probate where leave is required) may by simple motion be submitted to the Court of Appeal, to have it reversed, discharged, or varied. Interlocutory proceedings in chambers may also be appealed to a judge in chambers; and from him appeal lies to the Divisional Court. In the Chancery Division, the judge has the discretion of directing the matter to be argued before him in court, or allowing appeal direct to the Court of Appeal. An appeal in Divorce requires in many cases to be to the 'full court,' not to the ordinary Court of Appeal. This last court consists practically of six Lords Justices of Appeal, sitting in two divisions—one for Common Law Appeal; the other for Chancery, Probate, Admiralty, and Bankruptcy Appeal. The courts it superseded were: (1) In Chancery, the Lord Chancellor and Lords Justices; (2) At Common Law, the Court of Exchequer Chamber, consisting of the two Common Law Courts whose judgment was not under appeal. In 1873 it was proposed to abolish the appeal to the House of Lords, but still in all cases a petition of appeal may be brought to it from the judgments of the Court of Appeal. An appeal lies to the Judicial Committee of the Privy-council from an Indian or colonial court, but such appeal most frequently requires leave from the court below or the Judicial Committee, and, generally, security has to be given for costs.
As regards appeal from the inferior courts in England, an appeal lies from the county court to a divisional court of the High Court of Justice. All determinations in law by justices of the peace (including metropolitan police and stipendiary magistrates) may be brought up on a case stated under 20 and 21 Vict. chap. 43, for the opinion of a divisional court of the High Court of Justice. As to appeals in ecclesiastical causes, the Privy-council is the Supreme Court of Appeal in all ecclesiastical causes which may originate in the diocesan and provincial courts; but the High Court of Justice, especially in the Chancery Division, may frequently, in questions of trust and property and contract, have to decide purely spiritual questions.
Questions of law arising on the trial of a person convicted of treason, felony, or misdemeanour (e.g. at the Central Criminal Court, the assizes or quarter sessions), may be reserved by the judge or justice trying the case for the consideration of the Court for Crown Cases Reserved, established by the Act 11 and 12 Vict. chap. 78. This court must consist of at least five judges of the High Court of Justice.
The law of appeal in Ireland is practically the same as in England.
In Scotland, in the Court of Session the judgments of the Lords Ordinary sitting in the Outer House are appealed by a reclaiming note to the First or Second Division of the Inner House. The opinion of four judges is thus obtained on the opinion of one judge. These appeals are discouraged, except after final judgment by the Lord Ordinary, but they are competent at other stages, though in most cases only with leave of the judge. From all final judgments of the Inner House there is an appeal to the House of Lords within a period of one year. Where the judgment is not final, leave to appeal must be got, unless there has been a difference of opinion among the judges. Pending an appeal, the Court of Session have absolute power to regulate interim possession of property or execution of a decree for money.
The Court of Session has exclusive jurisdiction as a Court of Review in civil causes over all inferior courts, even in cases where its original jurisdiction is excluded, unless there be an express exclusion of review by statute; and where appeal is excluded, the Court of Session has jurisdiction to set aside their decisions, where they have acted in excess of their statutory jurisdiction. In the latter case, the technical remedy is generally by a note of suspension or an action of reduction. The normal appeal, however, from final judgment in the Sheriff Court is by Note of Appeal under the Court of Session Act, 1868, and this goes directly to the Inner House. Cases are often brought up before judgment in the Sheriff Court for jury trial in the Supreme Court. The Court of Session, sitting as the Registration Appeal Court and the Valuation Appeal Court, hears appeals from the Registration Courts held by the sheriffs, from the valuation committees of the commissioners of supply, and from the magistrates in burghs; and there is also an appeal as to excise duties from the justices at quarter sessions.
Within the Sheriff Court itself, the right of appeal from the sheriff-substitute to the sheriff-principal is regulated by the Sheriff Court Acts, 1853 and 1876. Appeals from the Small Debt Court are confined to certain grounds mentioned in the Act 1 Vict. chap. 41 (such as malice and oppression and defect of jurisdiction in the judge), and are made to the next Circuit Court of Justiciary.
At common law, the High Court of Justiciary may review the proceedings of all inferior courts in criminal matters, but not on the merits. This is mainly done by the remedies of advocacy and suspension. As regards summary prosecutions before magistrates, the right of appeal consists of a case stated for the opinion of the High Court of Justiciary or the Court of Session, according to the criminal or civil nature of the prosecution. This is regulated by the Summary Prosecutions Appeals Act, 1875. Where a question of law arises on a criminal trial by jury, whether before the sheriff or at circuit, there is no right of appeal to the High Court of Justiciary. The judge presiding at circuit occasionally 'certifies' a question of law as requiring discussion at the High Court, but he is not bound to do so. There is no appeal from the High Court to the House of Lords, although this right was frequently claimed last century.
In ecclesiastical courts in Scotland, there is in most cases a regular appeal from Presbytery to Synod, and from Synod to General Assembly. In questions of contract, property, or trust, however, it has been found impossible to exclude the jurisdiction of the civil courts.
In the United States, the distinction between an appeal, which originated in the civil law, and a writ of error, which is of common law origin, is that the former carries the whole case for review by the higher court, including both the facts and the law; while the latter removes only questions of law. An Act of Congress of 1875 provides that the judgments and decrees of the circuit courts of the United States shall not be re-examined in the Supreme Court unless the matter in dispute shall exceed the sum or value of $5000, exclusive of costs. No judgment, decree, or order of a circuit or district court, in any civil action at law or in equity, shall be reviewed in the Supreme Court on writ of error or appeal, unless the writ of error is brought, or the appeal is taken, within two years.