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§ 301. “To Hear and Determine Appeals.”

An appeal is a proceeding taken to test the decision of a court, and rectify it if erroneous, by submitting it to a higher Court. The use of the word in this sense is comparatively modern. In English law an appeal formerly meant an “appeal of felony,” or criminal accusation (Norman-Fr. appel, from appeler, to accuse), whilst the terms used for what is now known as appellate jurisdiction were “error” or “rehearing” as the case might be. The modern use of the word “appeal” seems to have been introduced into the temporal courts from the ecclesiastical courts, and to be derived directly from the Latin appellare. (See Sweet, Law Dictionary; Wharton, Law Lexicon, subt it. “Appeal.”)

The word is used without limitation of any kind, and leaves the whole question of the mode of appeal and the procedure on appeal to be regulated by the Parliament. It clearly includes appeals on matters of fact as well as on matters of law. This would be clear from general usage in any case, but is placed beyond doubt by subs. iii., which with regard to appeals from the Inter-State Commission imposes the limitation that the appeal shall be “as to questions of law only,” implying that the appeals mentioned in the other sub-sections may be as to questions of fact as well as law.

The essential attribute of an appeal is that it is a judicial proceeding for the purpose of revising a judicial proceeding.

“The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted in and acted upon by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form in which the Legislature may choose to


  ― 741 ―
prescribe; but still, the substance must exist before the form can be applied to it. To operate at all, then, under the Constitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States; it must be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by Congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the Constitution; for it is in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

“The most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter in suits at common law tried by a jury.” (Story, Comm. §§ 1761–2.)

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