Appellate History Question – the Original AP

Can someone recommend a book or article on the history of appellate practice. HowT has a long post (I disagree with his trust, and with the practice of judges telling us how to argue, in general), in which he likens appellate practice to trial by combat or trial by ordeal. While I was going to write a long post showing why his assumptions are wrong, I realized that I didn’t know enough about the subject to do it well.  Not that this has ever stopped anyone in the blogosphere. 

Here are my preliminary views:

• As I understand it, the origins of appeals came in collateral attacks against “doomsmen"

• But other people seem to say that chancery practice was the original form of “appeal.”
  

• On the other hand, since the British and colonial governments didn’t have much separation of powers, perhaps lobbyists were the original appellate lawyers.

Comments

[arizonalawdawg]

Sorry I can't direct you to any comprehensive historical books on the history of "appellate law" but I have several good historical books on my bookcase regarding the development and evolution of law (and appeals) in America (1500 - Present). The first makes many references to appeals, appellate law, and how the Supreme Court gradually incorporated the process of common law development to interpretation of statutes and constitutional provision: The History of American Law by Friedman and two by Martin J. Horwitz: (1) The Transformation of American Law 1780-1860 and (2) The Transformation of American Law, 1870-1960, The Crisis of Legal Orthodoxy. Though not directly "on point" I think every appellate attorney should read the above three books (or at least good book reviews of them). Anyway, I don't think you'll find what you're looking for in one work. If you do, I'd love to hear about it.

p.s. two other historical classics are the the two volume set: The American Constitution, by Harbison, Harrison, and Belz.

[S. COTUS]

Thanks for the leads. Actually I have read the two top books (both available on Half.com), and I like them. I have not read the two-volume set. So, maybe that will be a project for soon.

This would be a good topic for a law review article.

I was uncomfortable with HowT’s declaration that appellate practice sprung from trials by combat. Instead, I think that appellate formed a part of a much more sophisticated system of central government, but exactly when and where that happened is still a bit gray.