The Origin of the Appeal in America

Abstract

The 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 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 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 of appeal in early America. Exploring the larger set of meanings and practices surrounding the word appeal, she argues that the culture of developed from legal, religious, political, and literary ideas in England before the 1630s. In particular, Professor Bilder argues that the arose outside of the common law. She demonstrates that the 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 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 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 signifies a deep cultural concern for a system of equitable justice.