APPEAL. In the old English common law the term "appeal" was used to describe a process peculiar to English criminal pro cedure. It was a right of prosecution possessed as a personal privilege by a party individually aggrieved by a felony, a priv ilege 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. 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 bef ore another tribunal of higher authority.
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 cus tomary 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 estab lishing 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.
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 ac quired 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 pro hibition. 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. Since the reign of Henry VIII. the su premacy of the king's courts over all causes, as well ecclesiastical as civil, has been completely established 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 (I) of creating a judicial hierarchy independent of executive control ; (2) of ensuring that all de cisions 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.
• Appeals from Justices of the Peace.—The decisions of jus tices 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 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 (in this case, the divisional court) is invited. A point of fact not taken before the justices cannot be taken on appeal. 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 re view seems desirable, may order the justices to state a case, unless, indeed, the power to state a case is discretionary. And the High Court has also power to control the action of justices by prohibit ing 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 corre sponds 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 sum mary 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 s. 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 ieft 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. The right of appeal to quarter sessions is extended by the Criminal Justice Administration Act 1914, s. 37 (1) to any person aggrieved by any conviction of a court of summary jurisdiction in respect of any offence, who did not plead guilty or admit the truth of the information. There is also a right of appeal where a person after pleading guilty or admitting the truth of the information is convicted (Criminal Justice Act 1925, S. 25).
As a general rule, subject to particular statutory exceptions, appeals of this kind are by way of re-hearing, 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 (Halsbury, Laws of England, vol. xix. s. 1373). The only limit is that the appellant must confine himself to the grounds of appeal stated in the notice of appeal given by him. An appeal of this kind lies from any court of petty session, including of course, the court of a stipendiary magistrate.
Appeals from Justices in Quarter Sessions.—This tribunal has under the commission of the peace and under statute power to refer questions of difficulty arising before it for decision to the High Court. The old mode of exercising this power was by send ing on to assizes indictments raising difficult questions which had been presented at quarter sessions. The High Court has ex officio power to transfer such indictments where the nature of the case and the demands of justice call for such transfer. The quarter sessions had also power under statute on trying an indictment to refer to the court for Crown cases reserved (Crown Cases Act 1848, abolished by the Criminal Appeal Act 1907) questions of law which had arisen at the trial, and in all civil cases the quarter sessions has power of its own volition and subject to no direct compulsion to consult the High Court on legal questions of diffi culty which have arisen. Until 1894 this jurisdiction was regarded as consultative only. It was and is exercised by stating the facts, of which the court of quarter sessions is the sole judge, and indi cating the questions of law arising on the facts, and the view of quarter sessions thereon, and inviting the opinion of the High Court. Under the Judicature Act 1925 (by s. 25 [I]) every case stated is deemed to be an appeal and is to be heard and determined accordingly. In hearing the appeal, the divisional court may draw any inferences of fact which might have been drawn in the court of quarter sessions, and may give any judgment or make any order which ought to have been made, and may decide all ques tions of costs. When a court of quarter sessions has heard an ap peal from a court of summary jurisdiction, either party, being aggrieved by the decision as being wrong in law, may call for a special case for the opinion of the High Court (Criminal Justice Act 1925, s. 20). If the court of quarter sessions refuses to state a case, it may be compelled to do so by the High Court.
Appeals from County Courts.—Any party to an action or matter in a county court who is dissatisfied with the determination or direction of the judge in law or equity, or upon the admission or rejection of any evidence, may appeal against the decision in the following cases : (1) if the amount of claim or counter-claim in the proceeding exceeds £20; or (2) in all equity matters or cases in which an injunction has been given; or (3) in actions to recover possession of land where questions of title are involved (County Courts Act i888, s. 120). In the case of a claim below £20 no appeal lies except by the leave of the county court, and in such a case, the county court judge may give leave on the terms, e.g., that the appellant shall in any event pay the respond ent's costs of the appeal.
These appeals are heard in the king's bench division by a divisional court except in the case of appeals from judgments of a county court sitting in the exercise of admiralty jurisdiction, which are heard by two or more judges sitting in the probate, divorce and admiralty division, and in the case of an appeal from a county court judge sitting as arbitrator under the Workmen's Compensation Acts, when an appeal lies direct to the court of appeal. A divisional court usually consists of two judges, but the president of the division to which the court belongs may increase the number. Where there is a difference of opinion between two judges constituting a divisional court the junior judge sometimes withdraws his judgment and allows the judgment of his learned brother to overrule or affirm the judgment appealed from as the case may be. But the view has been expressed that in case there is a difference of opinion the judgment below should be allowed to stand. The chancery division has never sat to hear appeals from a county court exercising equity jurisdiction; but at times, by prohibition or certiorari has, in effect, reviewed or re strained excess of jurisdiction by county courts in equity matters.
The decision of the High Court on county court appeals is final unless an appeal to the court of appeal is brought by leave of that court or of the High Court (Judicature Act 1925 s. 31 [ 1 ] [f] ) . The application for leave to appeal may be made ex parte.
The appeal is by notice of motion which must state the grounds of the appeal, and must be given within 21 days from the date of the judgment or order complained of (Or. 59, r. 1o). An appeal does not necessarily stay execution, but execution may be stayed if the value of the property affected by the judgment is secured. Security for the costs of an appeal may be ordered, but poverty is not of itself sufficient to justify an order for security if there are reasonable grounds for appealing.
The destination of appeals from county courts is controlled by various statutes. Appeals under the Workmen's Compensation Acts go direct to the court of appeal, while an appeal from a county court judge exercising his admiralty jurisdiction is heard by a divisional court in the admiralty division of the High Court. Appeals from county courts in bankruptcy are heard by a divi sional court in the chancery division, whose decision is final unless leave is given to appeal either by that court or the court of appeal.
The judges of the king's bench have no power to review the decision of a county court judge on any question of fact unless, indeed, it can be said that he has misdirected himself as to certain evidence in which case a new trial may be ordered. This limita tion of the right of appeal has often been made the subject of unfavourable comment, and has given rise to the suggestion that there is such a thing as "county court" as distinguished from "High Court" justice.
Appeals from Inferior Courts of Civil Jurisdiction.—Ap peals from the local courts of record which still survive in certain cities, towns and districts are in a somewhat anomalous position. The general rule is that, unless a statute regulates such appeal, it may be brought in the king's bench division of the High Court on notice of motion in any case in which, before the Judicature Acts, the court of king's bench could have reviewed the decision of the inferior court by writ of error. The history of this question is dealt with in Darlow v. Shuttleworth, 1902, i K.B. 721.
In the case of the mayor's court of London, under the local and general statutes regulating that court an appeal lay to the king's bench division, but where there was "error" on the face of the proceedings of the mayor's court the appeal lay direct to the court of appeal as successor of the court of exchequer chamber. Now, however, the mayor's court having been abolished and merged in the mayor's and city of London court, appeals there from are dealt with as appeals from a county court. Appeals from the Liverpool court of passage and from the chancery courts of the duchies of Lancaster and Durham lie by statute direct to the court of appeal (Judicature Act 1925, s. 28) .
An appeal from the decision of a master of the king's bench involving any question of practice or procedure lies to a judge in chambers, and from the judge in chambers (with leave) to the court of appeal. Where, however, a master in chambers gives judgment on an issue tried by him, whether by consent or by order, an appeal from his decision lies to a divisonal court, which tribunal may review his findings both on questions of law and on questions of fact.
Appeals from an official or special referee are regulated by Or. 59A of the Rules of the Supreme Court which gives an abso lute right of appeal from an official referee to the judge in court in the chancery division, and to a divisional court in the king's bench and probate, etc., division. An appeal must be launched within six weeks, and the tribunal considering it may reverse or vary the finding of the official referee or send the matter back to him or to any other referee for further consideration.
Appeals in Criminal Cases Tried on Indictment.—Until 1907 it may be said that no appeal lay from a conviction upon indictment save that there was an appeal on questions of law arising at the trial. But the procedure was intricate and technical, being either (I) by writ of error, issued by the consent of the attorney-general (expressed by his fiat), to review errors of law appearing in the record of the trial, or (2) by special case, stated by the judge presiding at the trial, with respect to a question of law raised at the trial. These appeals were heard by the king's bench division. Meanwhile there had been a considerable develop ment of public opinion in favour of the establishment of criminal appeal, which resulted in the Criminal Appeal Act which was passed in 1907. By this act a court is established consisting of the lord chief justice and eight judges of the king's bench division, the jurisdiction of the court for Crown cases reserved being trans ferred to the new court. The court to be duly constituted must consist of an uneven number of judges, not less than three. Its sittings are held in London unless special directions are given by the lord chief justice that it shall sit at some other place. The opinion of the majority of those hearing the case determines any question before the court, and judgment is pronounced by the president (who is the lord chief justice or senior member present), unless in questions of law, when, if it is convenient that separate judgments should be pronounced by the members of the court, they may be so pronounced. The judgment of the court of crim inal appeal is final, except where the decision involves a point of law of exceptional public importance, and a certificate must be obtained from the attorney-general to that effect. The court of criminal appeal is a superior court of record. An appeal may be made either against conviction or against sentence. A person con victed on indictment may appeal either on a question of law alone or of fact alone, or on a question of mixed law and fact. On a point of law a prisoner has an unqualified right of appeal, on a question of fact or of mixed law and fact there is a right of appeal only if leave be obtained from the court of criminal appeal or a certificate be granted by the judge who tried the prisoner that it is a fit case for appeal. The court may allow the appeal if they think that the verdict of the jury should be set aside because it is unreasonable, or because it cannot be supported having regard to the evidence, or that the judgment should be set aside on the ground of a wrong decision on any point of law, or that on any ground there was a miscarriage of justice. Power is given to the court to dismiss the appeal if they consider that no substantial miscarriage of justice has occurred, even though they are of opinion that the point raised in the appeal might be decided in favour of the appellant. If the appeal is against the sentence passed at the trial it may be quashed by the appeal court and such other sentence (whether more or less severe) warranted in law by the verdict substituted. Notice of appeal or notice of application for leave to appeal must be given within ten days of the date of conviction; where a conviction involves sentence of death or corporal punishment the sentence must not be executed until after the expiration of ten days, and if notice of appeal is given, not until after the determination of the appeal or the final dismissal of the application for leave to appeal. The act gives the court power to order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, and to receive the evidence, if tendered, of any witness who is a competent but not compellable witness. Any question involving prolonged examination of documents or accounts or any scientific or local investigation may be referred to a special commissioner appointed by the court, and the court may act on the report of that commissioner. An appellant is given the right to be present on the hearing of his appeal, if he desires it, except where the appeal is on some ground involving a question of law alone, but rules of court may provide for his presence in such a case, or the court may give him leave. The act requires shorthand notes to be taken of the proceedings at the trial of any person, who, if convicted, would have a right to appeal under the act. Nothing in the act affects the preroga tive of mercy, and the home secretary may, if he thinks fit, at any time refer a case to the court of criminal appeal. If the attorney general certifies that a decision of the court of criminal appeal involves a point of law of exceptional public importance an appeal lies to the House of Lords at the instance of the prosecutor or the defendant. The necessary certificate must be applied for within seven days of the date of the decision (Criminal Justice Act 1925, s. 16).
Appeals from Judges of the King's Bench, Chancery and Probate, Divorce and Admiralty Divisions of the High Court.—Appeals from all the divisions of the High Court lie to the court of appeal, which, next to the House of Lords, is the most important tribunal of appeal from the purely British point of view. Its constitution is to be found in the Judicature Act 1925, ss. 6-8. It consists of certain ex officio judges and five ordinary judges, who are called lords justices of appeal. The ex officio members are the lord chancellor, who is president of the court, any ex lord chancellor, any lord of appeal in ordinary, who at the date of his appointment would have been qualified to be appointed an ordinary judge of the court of appeal, or who, at that date, was a judge of that court. The lord chief justice, the master of the rolls and the president of the probate division are also ex officio members of this tribunal. Any barrister of not less than 15 years standing and any judge of the High Court is qualified for appointment as a lord justice. The lord chancellor may request any judge of the High Court to sit in the court of appeal. Further he may ask, but, of course, cannot compel any retired lord justice or judge of the High Court to sit in the court.
Normally, the court of appeal sits in two divisions. The master of the rolls usually presides in the first court, and a senior lord justice in the second. Matters are generally so arranged that a court consisting of two common law and one equity lord justice hears appeals from the king's bench, while chancery appeals are heard and decided by two equity and one common law lord justice. For the decision of a case of great importance, the president will sometimes summon the whole court.
Sometimes judgment is given immediately upon the conclusion of the arguments. In important cases, however, the lords justices often reserve judgment and put their reasons into writing. When a large number of American lawyers visited this country in 1926, a distinguished American judge who had been listening to a case in the court of appeal was heard to express his astonishment at judgment being delivered orally immediately after the conclusion of the arguments. In his State of the Union, he said, to reserve judgment was the universal practice.
The principal function of the court is to hear appeals from "any judgment or order of any division of the High Court" (s. 27 (I) ). All such judgments or orders can be appealed except any judgment of the High Court in any criminal cause or matter (s. 31 (z) (a)) ; an order allowing an extension of time for appealing from a judgment or order (ib. (b)) ; an order of a judge giving unconditional leave to defend; a decision of the High Court declared by statute to be final (ib. (d)) ; an order absolute for the dissolution or nullity of a marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded has not appealed (ib. (c)). No appeal lies without leave of the divisional court or of the court of appeal from the determination by a divisional court of any appeal to the High Court, e.g., an appeal from a county court (ib. (f)) ; without leave of the judge in chambers, or of the court of appeal from any order made in chambers (other than an order relating to practice or procedure) where no appli cation has been made to discharge the order to the judge in court or to a divisional court (ib. (g) ).
Again, no appeal lies without the like leave from an order made by consent or as to costs only which are left to the dis cretion of the court (ib. (h) ). It will be seen that the legislature has absolutely prevented an appeal in a number of cases, and has allowed it, with leave, in others. Interest reipublicae ut sit finis litium; but it is obvious that there may be cases in which although the subject matter of the dispute is negligible or very small, some question of principle is involved. And this is often the case in appeals from county courts.
Appeals in Interlocutory Matters.—No appeal lies without the leave of the judge or of the court of appeal from any inter locutory order or interlocutory judgment made or given by a judge except in certain cases (to be mentioned presently). The question whether an order or judgment is interlocutory or final is for the court of appeal to decide (Judicature Act 1925, s. 68 (2) ), but the test of finality is—Does it, as made, finally dispose of the rights of the parties? The principal exceptions (to be found in s. 31 (I) (2) of the Judicature Act 192 5) are where the liberty of the subject or the custody of infants is concerned; where an injunction or the appointment of a receiver is granted or refused; in the case of a decree nisi in a matrimonial cause, or a judgment or order in an admiralty action determining liability ; in the case of an order on a special case stated under the Arbitration Act 1889. With regard to decisions of the High Court in relation to election petition these cannot be appealed except with leave of the High Court. Finally, no appeal lies to the court of appeal from any decision of a divisional court on a point of law arising in any probate causes or matter.
Every motion for a new trial or to set aside a verdict in any cause or matter in the High Court in which there has been a trial thereof or of any issue therein with a jury falls to be heard in the court of appeal (Judicature Act 1875, s. 3o (I)). The court of appeal also hears appeals from convictions of indictment at common law in relation to the non-repair or obstruction of any highway, public bridge or navigable river (ib. s. 29).
In matters of practice and procedure every appeal from a judge comes before the court of appeal (Judicature Act 1925, s. 31 (3)). These appeals which are usually from a judge sitting in chambers are generally heard by two members of the court of appeal, and do not lie except with leave of the judge who made the order or of the court of appeal. To this, however, there is one notable exception, viz., that if a judge in chambers refuses unconditional leave to defend, the defendant may appeal without leave. On the other hand, if he does give unconditional leave to defend, his order is final. As to what are matters of "practice and procedure," the reader is referred to the Yearly Practice (1928).
Procedure on Appeals.—Procedure on appeal is regulated by rules of court (notably R.58). Notice of motion must be given, in interlocutory matters within 14 days, and in final matters within six weeks of the decision complained of. At the hearing the court may allow further evidence to be called, but this power is rarely exercised, and after a cause or matter has been heard on the merits, is admitted on special grounds only. The court will "jealously scrutinize" any point taken on appeal which was not taken in the court below. Upon hearing the appeal the court may order a new trial instead of reversing the judgment below. Pro vision is also made by the rules for a cross appeal by the respond ent. The court may summon assessors who are experts on the matters of fact or science involved in the appeal. This power is often exercised in admiralty cases.
With a view to preventing a multiplicity of appeals, there is power to order security for costs of an appeal in certain cases. It will generally be ordered where an appellant is out of the juris diction, and where it is shown that the appellant, if unsuccessful, would be unable to pay costs (unless, indeed, the poverty of the appellant is due to the wrongful act of the respondent), but it will not be ordered where the liberty of the subject is in question.
The court of appeal may make any order which it deems just as to the costs of the whole or any part of an appeal, except possibly in the case of certain appeals in matters on the Crown side of the High Court, as to which some doubt still exists. In practice the costs follow the event, unless the court in a particular case makes an order to the contrary.
A decision of the court of appeal is final in appeals from the High Court in bankruptcy, unless leave be given to appeal to the House of Lords (Bankruptcy Act 1914, s. 1o8), and in divorce appeals, except where the decision either is upon the grant or refusal of a decree for dissolution or nullity of marriage, or for a declaration of legitimacy, or is upon any question of law on which the court gives leave to appeal (Supreme Court of Judi cature Act 1925, s. 27 (2)) ; but no further appeal to the House of Lords lies, even with leave of the court of appeal, on appeals from the High Court sitting as a court of appeal from county courts in bankruptcy. With these exceptions there is now a right of appeal from every order of the court of appeal to the House of Lords.
By the Appellate Jurisdiction Act 1876 and an amending act of 1887, the appellate business of the House of Lords is conducted solely by the law lords, though lay peers may still sit (Bradlaugh v. Clarke, 1882, 8 App. Cas. 354). No appeal may be heard or determined except in the presence of not less than three of the following persons :—(1) the lord chancellor; (2) the lords of appeal, four of whom are appointed under the act from among persons who hold, or have held, high judicial office, or, at the date of appointment, have been in practice for not less than 15 years as barristers in England or Ireland, or as advocates in Scotland (see also the. Appellate Jurisdiction Act r913, providing for the appointment of two additional lords of appeal) ; (3) such peers of parliament as hold, or have held, high judicial office. By "high judicial office" is meant the office of lord chancellor of Great Britain or Ireland, lord of appeal in ordinary, paid judge of the judicial committee or member of that committee, or judge of one of the superior courts of Great Britain or Ireland.
An appeal lies to the House of Lords (1) from any order or judgment of the court of appeal in England except as above stated; (2) from a judgment or order of any court in Scotland or Northern Ireland from which error or an appeal to the House of Lords lay by common law or statute immediately before Nov. 1, 1876. As regards Southern Ireland, the right of appeal from the court of appeal in Ireland was taken away by the Government of Ireland Act 192o. Appeal now lies from that part of Ireland, by leave, to the privy council. Appeals are heard from the court of criminal appeal where the attorney-general has certified that a point of law of general public importance is involved. The House of Lords has an indirect power by standing orders to admit appeals from Scotland or Northern Ireland which under former law or practice could not be admitted (Appellate Jurisdiction Act 1876, s. 12). The proceedings are commenced by petition of appeal, which must be lodged with the clerk of the parliaments within one year from the date of the last judgment it appealed from. Security for costs (L2oo) must be given by bond or lodgment of the money, unless dispensed with by the House on the ground of poverty (act of 1893). Each party lodges a printed case signed and certified by counsel, containing a resume of the matters to be discussed and of the contentions for or against the allowance of the appeal. The hearing is before three or more law lords, who may call in nautical assessors in admiralty cases (acts of 1893 and 1894). It is not public in the full sense of the term, as persons not concerned in the appeal can attend only by consent of the House. The House pronounces the judgment which in the opinion of the majority of the law lords should have been pronounced below, and has jurisdiction in the case of all appeals to give or refuse costs to the successful party. The costs of the appeal if given are taxed by the officers of the House. The jurisdiction as to costs does not directly arise under any statute (see West Ham Guardians v. Bethnal Green Churchwardens, 1896, A.C. 477) The procedure adopted on the hearing of an appeal in the House of Lords is somewhat remarkable. Cases are heard in the chamber itself, the law lords being provided with small tables near the bar of the House, the lord chancellor, in his robes, usually pre siding. The peers do not give judgments in the strict sense : they make speeches, after which the lord chancellor, proceeding to the woolsack, puts the question to the vote.
Numerous as are the members of the committee, the quorum is three. One or more of the lords of appeal in ordinary usually attend at every hearing, but the composition of the committee is very fluctuating. Appeals from the British dominions abroad lie in criminal as well as civil matters. The right of appeal is regulated as to most possessions by order in council, and in some cases is limited by imperial or colonial statute. Appeals are on fact as well as on law, but the committee rarely if ever disturbs the concurrent judgments on facts of two colonial courts. In the case of admiralty appeals from colonial or consular courts, naval assessors may be called in. The committee also hears (with the aid of ecclesiastical assessors) appeals from ecclesiastical courts. The judgment of the committee is in the form of a report and advice to the king, which is read by one of the members sitting, and no indication is given as to whether the members present are unanimous. Effect is given to the advice by Orders in Council dismissing or allowing the appeal, and giving direction as to the payment of costs and as to the further proceedings to be taken in the colonial courts.
The procedure of the committee is on the same lines as that on appeals to the House of Lords ; no well-arranged code of practice existed however up to the end of 1908, and new rules were then being proposed on the subject. The appeal is commenced by a petition of appeal, and by the giving of security for costs. In colonial appeals printed cases are lodged containing a summary of the contentions of the parties, and with this a printed copy of the record of the proceedings and documents used in the courts appealed from. The hearing is in the privy council chamber and is not public. When an appeal is called on, the counsel and parties are summoned into the chamber, and when the arguments are concluded they are requested to retire. The appeals to the king in council from colonial States having a federal constitution, like Canada and Australia, stand in an exceptional position. The act creating the Supreme Court of Canada purports to make the decision of that court final. But it is still the practice to admit by special leave a prerogative appeal from the court, and to entertain appeals from courts of the provinces of Canada direct to the king in council, without requiring them to go to the Supreme Court. The constitution of the Australian Commonwealth contemplates (s. 73) the possibility of restricting appeals to the king in council from the supreme courts of Australia, and s. 74 forbids appeals to the king in council except by leave of the High Court of Aus tralia from decision of that court on any question however arising as to the limits inter se of the constitutional powers of the com monwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States. The exact effect of these enactments and of Australian legislation under s. 73 is a matter of controversy. A convenient list of the Statutory Rules and Orders which now regulate appeals from the various colonies and dominions will be found in the supplement to Halsbury's Laws of England (1928), p. 607. (W. V. B.) The question of appeals in the United States is complicated by the fact that each of the 48 States is an independent judicial unit, each having its own system of courts and its own system of procedure. The court systems and the procedural rules of the States often differ radically. In addition the Federal Govern ment has a system of courts, culminating in the Supreme Court of the United States, with special and unique features. Limita tions of space prevent a full report on each separate system.
A litigant who is dissatisfied with the decision of a justice of the peace may remove his case to the proper district or county court where it is tried de novo; that is, his case is treated as if brought in the higher court in the first instance. From this court, the case may be appealed to the appellate court where the trial below is reviewed to ascertain if error was committed or injustice has resulted. Cases in the superior court may likewise be appealed to the appellate court.
The question of allocating cases on appeal between the inter mediate appellate courts and the court of last resort presents a difficult problem. Provisions are to be found making the decision of the intermediate court final in certain specified actions. Other cases go directly to the court of last resort without the inter vention of the intermediate court. In New York, for example, an appeal from a sentence of death is taken from the court of original jurisdiction to the Court of Appeals. In many actions there is a double appeal, first to the intermediate court and then to the court of last resort. Some States provide that in case of a disagreement in the intermediate court, that court may certify the case to the higher court. And finally many States provide that the court of last resort may order a case transferred to it from the intermediate court, if it believes that the case contains questions of sufficient importance to deserve its attention.
This system of intermediate appellate courts is open to two objections. As it is very difficult to formulate rules for distribut ing appeals between the intermediate and the supreme court which will be free from obscurity and doubt, each court is forced to spend a disproportionate part of its time in deciding whether it has jurisdiction to hear the appeal. But perhaps a more serious objection is the possibility in almost every case of a double ap peal. It has not been demonstrated that a better quality of justice is obtained by subjecting a cause to the review of two appellate courts. And it is apparent not only that litigation is unduly pro longed, but that the expenses of litigation to the individual parties and to the community are increased. Further, public esteem for the courts is lessened by frequent reversals of a lower appellate court by the supreme court.
Equitable causes in chancery were reviewed by means of an "appeal in equity." This device was simpler and more efficient than a writ of error. The pleadings and other documents were removed to the appellate court for a rehearing of the case. The appellate court was not forced to confine its attention to the record proper. The facts found as well as the law propounded by the lower court could be examined. In fact, except for the rule that new evidence could not be given on appeal, the rehearing partook more of the nature of a trial de novo than of an exami nation merely for the detection of error.
Other methods of obtaining a judicial review of a cause at early common law were by means of the prerogative writs of certiorari, mandamus and prohibition. In most States these writs are still employed. Each of these writs is issued upon a petition to an appellate court and each contains a command to a lower court. The writ of certiorari orders the cause transferred to the higher court for further proceedings. This writ can be used only when a writ of error could not be issued, as when an accidental destruction of the record proper prevents its certification to the appellate court. The writ of mandamus compels the performance of some act refused by the lower court. The writ of prohibition prevents a lower court from acting beyond its statutory juris diction. It should be noted that these three writs are issued only in the sound discretion of the court, whereas writs of error and appeals in equity are ordinarily matters of right to the litigants.
A further method of obtaining an appellate review is provided in some States by means of a "certified case." During the trial of an action, a difficult question of law may arise which, when answered, is decisive of the case. The trial judge may then "certify" the case to the supreme court by stating the question of law for its determination. All trial proceedings are stayed until the appellate court gives its answer. An analogous method is to permit the two opposing counsel at the trial to submit an agreed statement of facts to the supreme court. The court then decides the law applicable to these facts. Such a procedure will be used only when the facts are clear and the dispute centres on a question of law.
The supreme court reaches its decision at a conference of its members, and one judge is assigned to write an opinion. If the court is divided, one or more dissenting opinions may be filed. In unimportant cases the decision may be announced without the writing of an opinion.
A narrow view presumes all errors to be prejudicial until the appellee proves them harmless. But the modern and more liberal tendency of the courts is to regard all errors as harmless until the appellant affirmatively proves them prejudicial. It is doubtful if the situation of the famous case of Hopt v. Utah could now be repeated. Hopt committed a murder in the territory of Utah and was sentenced by the local court to be hanged. On appeal to the U.S. Supreme Court, the conviction was reversed because of a procedural error. Twice more the murderer was convicted and twice more the conviction was reversed on technical grounds. After the fourth trial had resulted in a conviction, the Supreme Court found the trial free from judicial error. It was seven years after the murder that Hopt finally paid the penalty for his crime. (See Hopt v. People of Utah, 104 U.S. 63; I so U.S. 574; U.S. 488; 120 U.S. 430.) Suggested Reforms in Procedure.—In recent years many reforms have been suggested to meet the widespread criticism of appellate procedure in the United States. It is more than likely that revolutionary changes will appear in some of the States in the next few years. The procedural devices involved in perfecting an appeal could be made less complicated. More States might well abolish the distinction between the writ of error and an appeal in equity. The labour of preparing the record or case on appeal could be materially reduced. New evidence, either docu mentary or oral, could profitably be admitted on appeal. The whole object of appellate review should be changed from a pro ceeding mainly for the detection of error, to a rehearing of the cause with a view to its final disposition on its merits. Then the litigants and the community would be saved the expense of a new trial, and the pressure on the overcrowded trial courts would be relieved.
Many States provide for the compulsory retirement of judges upon reaching a certain age. In New York judges must retire at the age of 70, often at the time when they are capable of rendering their greatest service to the community. (N.Y. Con stitution, Article VI., Section 12.) Since the Federal Constitution provides that the justices of the Supreme Court shall hold office during good behaviour, an attempt by Congress to force compul sory retirement would be unconstitutional. But Congress in 1 867 provided for voluntary retirement with full compensation when the age of 7o is reached. (16 Statutes at Large, 45.) Ten justices have availed themselves of this provision.
A justice of the Supreme Court is removable only upon im peachment. The proceedings consist of a formal trial before the U S. Senate, and a two-thirds vote is required for conviction. In the 140 years of the Supreme Court's existence, impeachment proceedings have been brought against only one justice, and his trial resulted in an acquittal.
During the first 1 oo years of the Supreme Court's existence each justice was required to preside over the local Federal courts. As the country developed westward, and as the amount of Federal litigation increased, this duty became more and more onerous. This system forced the justices to spend a disproportionate amount of their time in travel to the consequent neglect of their main function at Washington. Agitation against this practice of circuit riding finally resulted in its abandonment in 1891. At that time nine intermediate appellate courts known as the "Circuit Courts of Appeals" were established to hear appeals from the local district courts. (26 Statutes at Large, 826.) Jurisdiction of the Supreme Supreme Court hears cases on appeal from the final courts of the State and from the Federal courts. But it is not every case which may be appealed to the Supreme Court. As most of the State courts have difficulty in keeping up with their dockets, it is obvious that drastic limita tions are necessary to prevent the one tribunal which hears cases from the entire country from being overwhelmed with litigation. The first limitation is imposed by the Federal Constitution. Article III., Section 2, provides that "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." This has been interpreted to mean that the Supreme Court has no appellate jurisdiction unless and until it is specifi cally granted by Congress. Jurisdiction has been granted by various acts of Congress. The Supreme Court hears appeals from (I) the State courts of last resort, (2) the Federal district courts, and (3) the Federal circuit courts of appeals and other special Federal courts such as the Court of Claims and the Court of Customs Appeals.
Appeals from State Courts.—The Supreme Court hears no appeals from State courts unless a Federal question is involved. Such is the case when there is involved : the validity of a treaty or statute of the United States (2) the repugnancy of a State statute to the Federal Constitution or (3) "when any title, right, privilege or immunity specially set up by a party under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States." Appeals are mat ters of right to the litigant in two situations only : when a State court has held a treaty or statute of the United States invalid and (2) when, on the question of the repugnancy of a State statute to the Federal Constitution, the statute was held valid by the State court. In all other cases, which must be brought by petition for a writ of certiorari, the Supreme Court, may, in its discretion, refuse to hear the cause. (U.S. Code, Title 28, Sec tion 344-) Appeals from District Courts.—In 1925 the jurisdiction of the Supreme Court over appeals from the Federal district courts was greatly restricted. This jurisdiction is now limited to five narrow classes of cases arising under five Federal statutes. (U.S. Code, Title 28, Section 238.) Appeals from the Circuit Courts of Appeals.—Likewise in 1925, appeal to the Supreme Court from the Circuit Courts of Appeals as a matter of right was limited to one situation only ; when the Circuit Court of Appeals has held a State statute invalid as repugnant to the Federal Constitution. But a litigant may petition the Supreme Court for a writ of certiorari by which the cause will be removed from the Circuit Court of Appeals to the Supreme Court. A review on writ of certiorari is not a matter of right, but lies within the sound judicial discretion of the court. (U.S. Code, Title 28, Section 347.) The tendency of recent years has been toward a decided reduc tion in the number of cases which can be appealed as a matter of right to the Supreme Court with a corresponding increase in its discretionary jurisdiction. As a result the number of appeals docketed now closely approximates the working capacity of the court. For the first time in years the court during its 1927 term was able to reach in course cases docketed for that term.
Constitutional Questions.—Problems of the greatest im portance confront the Supreme Court when constitutional ques tions are raised. The exercise of the power to hold State or Federal statutes unconstitutional may profoundly affect the entire social structure. It has been the exercise or non-exercise of this power which has at times subjected the court to public criticism. This criticism becomes especially severe when the court holds a statute unconstitutional by a majority of only one vote as in the income tax case. (Pollock v. Farmers' Loan and Trust Co., 158 U.S. 6o1.) These five to four decisions have caused some agita tion to require a vote by a majority larger than one to hold a statute unconstitutional. Ohio in its State Constitution provides that its supreme court shall hold no law unconstitutional if more than one judge dissents. (Article IV., Section 2. See Jones v. Zangerle, 1S9 N.E. 564.) The legislatures of Nebraska and North Dakota have adopted similar provisions, but similar legislation restricting the power of the Supreme Court of the United States has failed of adoption.