Appellate remedy: the ancient precedents of a modern right.

• Author: Poland, Peter S.

Recourse to appeal, in both civil and criminal matters, is a fixture of our modern state and federal legal systems. (1) While the American right of appeal does not rise to the level of a constitutional right, it is not a doctrinal abstraction. Rather, it is statutorily established, (2) and referenced explicitly in the Federal Rules of Appellate Procedure. (3) As most appellate judges are aware, litigants began exercising this right in increasing numbers in what could be termed an appellate explosion ignited in the early 1960s that lasted for decades. (4) Because of the proliferation of appeals in the recent past, some perceive the appeal (5) as a modern creation. But tradition holds, albeit vaguely, that the antecedents of our modern American appellate system lie in the ancient world. (6) This essay begins with short summaries of ancient Near Eastern and Mediterranean legal procedures that constitute or resemble appellate systems, and then briefly explores which of their components endure in modern American appellate procedure.

1. ANCIENT APPELLATE PRECEDENT

   1. Mesopotamia

      The most reliable evidence with which to reconstruct ancient Mesopotamian legal procedure dates to around the turn of the Second Millennium, B.C.E., when Sumer enjoyed a final resurgence before its rapid decline. Courts of this era rendered their final judgments on clay tablets of "no complaining," and evidence suggests that unsuccessful plaintiffs were required to swear oaths not to litigate the same issue. (7) However, if new evidence emerged, or if a material error occurred in the first trial, a litigant could bring a second proceeding in either the same court or a different horizontally situated court. (8) There is no evidence of a vertical hierarchy of Mesopotamian courts, and litigants lacked the means to appeal to a higher authority. (9) Despite this absence of vertical appeal, some experts have come to believe that at least some evidence suggests that "an appellate process of some kind was practiced" in ancient Mesopotamia based upon the availability to litigants, in certain circumstances, of the second proceeding. (10)

   2. Egypt

      In its deeper past, Egypt's judicial system resembled that of Mesopotamia: horizontal courts and the availability of a new trial if certain conditions--such as the discovery of new evidence--were met. (11) But by the Twenty-second Dynasty (945-715 B.C.E.), Egypt employed an appellate system (12) that included a right of appeal in both civil and minor criminal cases. (13) Yet this appeal was not to a higher court of trained judges, but to the mystical jurisprudence of an oracle. (14)

      Litigants likely approached the oracle with an even greater degree of solemnity and procedural formality than they would have brought to a court of justice; indeed, the ruling of the oracle was perceived as a literal epiphany. (15) Litigants could petition for trial by oracle in either a written document or orally, and evidence suggests that the petitions were carefully and thoughtfully composed. (16)

      The oracle as appellate decisionmaker was in its physical manifestation a statue of a deity (sometimes but not always a deceased and deified pharaoh) carried on a litter by several priests who interpreted the will of the god by moving the litter forward or backward in response to questions. Backward movement indicated "no," and historians speculate that forward meant "yes." (17) Ancient sources also state that the deity "spoke," likely when directional movement could not adequately render a judgment. (18) Logic suggests that the god's speech was uttered by the priests, who briefly became de facto appellate justices before returning to their priestly duties.

      Despite the evidence supporting a role for the oracle in the legal system, it bears noting that we have relatively little confirmation of the oracle's status as an intermediate appellate forum. That conclusion is contingent on the accuracy of the theory of some Egyptologists that a final appeal could, under certain circumstances, be made to the reigning pharaoh himself. (19) In other situations, the decision of the oracle was final.

   3. Athens

      Aristotle credits Solon, the sixth century B.C.E. Athenian politician and poet with giving the power of appeal to the popular law courts. (20) Although there are varying interpretations among classicists as to the precise scope of the appellate system created by Solon, the most probable construction--indeed, the one supported by Plutarch's writings--maintains that a litigant dissatisfied with the judgment of a magistrate could appeal to the Eliaia, which was the assembly of Athenian citizens convened for judicial purposes (a "jury," in the modern sense). (21) The Eliaia heard the case de novo and had the power to affirm the magistrate's judgment or reverse it and render a new judgment. (22) The Athenian appeal was limited to correction of the magistrate's judgment; the jury was the authoritative pinnacle of Athenian jurisprudence and its judgments could not be appealed. But by the fifth century B.C.E., magistrates no longer rendered judgments, and legal disputes...