APPEAL. 



213 



nn inferior tribunal to a superior ; from the French 

 appeller, of the same signification. In England, ap- 

 peals lie from the ordinary courts of justice, and also 

 from the equity courts to the parliament. Appeals 

 i'rom courts of equity differ from writs of error, which 

 impugn the judgments of the ordinary courts, in these 

 respects, that the former may be brought upon in- 

 ter) ocutoiy matters, that is, questions occurring hi the 

 course of the trial ; the latter, upon definitive judg- 

 ments only. On writs of error, the house of lords 

 pronounces judgment ; in appeals, it directs the court 

 to rectify its judgment. In Germany, originally, ap- 

 peals could be brought only when the feudal lord 

 refused to administer justice. The cause might then 

 be carried before the king's court ; and, if magistrates 

 decided wrongly, their decisions might be called in 

 question (Fr. fausser le jugemenf), and thus the ap- 

 pellant became at issue with his former judges, and 

 the dispute, according to law, was to be decided by 

 mortal combat. Subsequently, all judgments were 

 examined by a superior court. This change had been 

 already introduced in France by king Louis IX., but 

 was first firmly settled in Germany, by the establish- 

 ment of the court of the imperial cliamber, A. D. 

 1495. Appeal was made from the tribunals of the 

 lords of manors to the courts of the princes, and from 

 these latter to the tribunals of the empire, the court 

 of the imperial chamber, and the aulic council. The 

 states of the empire endeavoured, as far as possible, 

 to sliake off this subordination of their tribunals to the 

 supreme judicature of the kingdom. Austria, from 

 the very first, kept herself perfectly free from this 

 dependence. The electors were entitled to the same 

 liberty, by virtue of their ancient privileges ; but it 

 had now become a fundamental law, that there should 

 be three degrees of courts, and those who would not 

 establish tribunals of the third or highest degree 

 (high courts of appeal), were obliged to allow the right 

 of appeal to the supreme courts of the empire, and 

 could obtain exemption therefrom only by particular 

 imperial privileges (privilegia de non appellando). 

 The same privilege was granted also to other states, 

 who might establish their own supreme tribunals (as 

 Sweden at Wismar, Hanover at Celle, Hesse- Cassel, 

 &c.), or else send the documents, belonging to ques- 

 tions at issue, to foreign colleges, which had the 

 right of final judgment. The tedious forms in the 

 supreme courts or the empire, and other defects in 

 the judicial administration, gave popularity to these 

 establishments, on the part of the separate states ; 

 although the maxim, that three consecutive decrees 

 are requisite for the entire settlement of a controversy 

 at law, infinitely delayed the process ; and the want 

 of a supreme court, extending its authority through- 

 out Germany, was highly prejudicial to the improve- 

 ment of the German code. The dissolution of the 

 German empire increased the difficulties attending 

 the administration of justice in the small states ; and 

 it is one of the most salutary resolves of the German 

 compact (while recognizing the necessity of three con- 

 secutive judgments as a fundamental law of the em- 

 pire), that the smaller states shall be compelled to 

 erect, in common, high courts of appeal, and not con- 

 fine themselves to petty, local jurisdictions. These 

 supreme courts, common to several states, have all, 

 within a few years past, been reduced to a regular 

 order. The great limitation, almost amounting to 

 exclusion of criminal cases, is a remarkable circum- 

 stance in the constitution of these courts. The di- 

 versity in the amounts of property in question, for 

 which appeal is allowed from the different states, is 

 also interesting. Saxe-Hildburghausen alone suffers 

 all causes, without reference to the amount in dispute, 

 to go to the high court of appeal at Jena. In the 

 rest of the states, the limitation varies between 100 



and 500 Saxon dollars. With a few differences in 

 names and forms, all the judicial administration of 

 Germany is now uniform, and the rule of the three 

 gradations of tribunals is universal. The smaller 

 states, we have already said, have joint courts of ap- 

 peal. Austria has such courts of her own, at Vienna, 

 and many other places, besides a supreme court of 

 justice at Vienna. Hungary and Transylvania have 

 a judicial constitution peculiar to themselves. In old 

 Prussia, the courts of the first or lowest degree are 

 those of cities, districts, &c. ; of the second degree- 

 there are fifteen, in as many important places ; of 

 the third degree, there is properly but one, the 

 superior tribunal at Berlin ; but the efficacy of 

 this court in maintaining unity in the administration 

 of justice is much interrupted by many revisions of 

 each other's decrees, which take place between the 

 various courts of the second degree. The Prussian 

 lands on the Rhine still liave the French judicial con- 

 stitution ; and, for this, a court of revision was esta- 

 blished at Berlin, by the decree of July 20, 1819, in 

 the room of the French court of cassation. Bavaria 

 has eight tribunals, with appellate jurisdiction, and a 

 supreme court of appeal, at Munich. The high 

 courts of appeal of individual states, according to the 

 choice of the parties in every case, stand in the place 

 of a joint tribunal, for the settlement of the contests 

 of the states with one another. In France, only two 

 gradations are permitted the tribunals of the first 

 instance (district and county courts), and the courts 

 of appeal (cours royales), which have taken the place 

 of the old parliament. For the whole kingdom, 

 however, there is the royal court of cassation, which 

 has to decide only in cases where the competency of 

 a tribunal, or the formality of a process, is called in 

 question. This court does much towards the preser- 

 vation of harmony in the administration of justice. 



APPEAL, in the. judicial language of England, be- 

 sides the common meaning in other countries, had, 

 till lately, another also, denoting an accusation by 

 one private subject against another, for some heinous 

 crime, demanding punishment on account of the par- 

 ticular injury suffered, rather than for the offence 

 against the public. The usual English criminal pro- 

 cess is a process of accusation by indictment of a grand 

 jury, in which the accuser is obliged to prove his 

 cliarges, and the accused is not bound to give answer 

 or reply with regard to lu's actions. The German 

 criminal process, on the contrary, seeks especially to 

 investigate the truth from the statements of the ac- 

 cused himself. In the English system, the pro- 

 secution is conducted by the government, at the re- 

 quest of the injured party, who has nothing further to 

 do, but to furnish means of proof to the advocates of 

 the crown. But the process of appeal, of which we 

 are now to speak, was another sort of prosecution or 

 suit, in which the defendant, or one of his relations, 

 summoned the plaintiff before the proper tribunal of 

 justice (the king's bench), in order to obtain satisfac- 

 tion for the offence, and to have the proper punish- 

 ment inflicted. The accuser, here, is called appellor, 

 or appellant, and the accused, appellee. This kind of 

 appeal took place when the supposed criminal had 

 been acquitted on an indictment, but not if he had 

 been sentenced and punished for a less crime titan 

 that of which he was accused ; for instance, of man- 

 slaughter instead of murder. If he was pardoned, 

 this did not protect him from this private accusation, 

 and, if found guilty on these charges, he was obliged 

 to suffer the punishment established by law, and the 

 king could not pardon him. This right of private 

 accusation continued for a year. If, therefore, the 

 judge, the public, or the relatives, were not satisfied 

 with the sentence of acquittal parsed by the jury, such 

 an appeal might bo made, and the person acquitted 



