The Origin of the Appeal in America

Abstract

The appeal has been treated by academics as a mere legal procedure, possessing no particular significance. Indeed, for many years, legal scholars accepted the influential arguments of Professors Julius Goebel and Roscoe Pound that the appearance of the appeal in early American courts arose either from confusion about English common law legal procedures or was the result of colonial adaptation of English justice-of-the-peace practices. Professor Bilder challenges this conventional explanation of the origin of the appeal by locating the early American colonists within a transatlantic Western European legal culture. Professor Bilder's Article draws on recent work in cultural history to propose the idea of a "culture of appeal" in early America. Exploring the larger set of meanings and practices surrounding the word "appeal," she argues that the culture of appeal developed from legal, religious, political, and literary ideas in England before the 1630s. In particular, Professor Bilder argues that the appeal arose outside of the common law. She demonstrates that the appeal carried with it a belief in the importance of equity and a debate about the location of supreme authority. The Article traces the culture of appeal as it journeyed into Massachusetts and Rhode Island in the 1640s and reveals that these meanings were accepted and embraced by the early colonists. Professor Bilder concludes that the presence of the appeal in American law represents something far greater than Goebel's or Pound's interpretation of it as a mere common law procedure; she suggests that the appeal signifies a deep cultural concern for a system of equitable justice.