Definition
In legal usage, "above" carries two distinct but related meanings:
1. Hierarchical: Denoting a higher court, particularly the court to which a cause has been removed by appeal or writ of error. The appellate tribunal is the "court above"; the originating tribunal is the "court below." By extension, the parties in appellate proceedings are identified accordingly — the party appealing or defending an appeal before the superior court is the "plaintiff above" or "defendant above."
2. Referential: A document-internal pointer directing the reader to text that appeared earlier in the same instrument, pleading, statute, or opinion. "The above-named parties," "as stated above," or "the above provision" are standard examples. This usage is the dominant modern meaning in drafting practice.
A third, narrower historical meaning survives in the phrase "bail above" (also "special bail" or "bail to the action"), which described a form of suretyship more stringent and more principal than common bail. The bail above bound themselves to ensure that the defendant would satisfy any judgment rendered, not merely that he would appear.
Common Language
Modern common usage (Wiktionary): Directly overhead; higher in place, rank, or order; earlier on the same page.
Historical common usage (Webster's 1913): In or to a higher place; over; superior to in any respect; surpassing or beyond in measure or degree.
The common and legal meanings largely overlap in direction — both convey hierarchy and precedence — but the legal usages are technical and positional in ways ordinary speech is not. In legal context, "above" is not merely spatial or comparative; it fixes relationships between courts, parties, and textual provisions with procedural consequence. A reader encountering "defendant above" in a historical pleading should understand it as a term of art identifying a party's status in appellate posture, not a vague statement of rank.
Common Confusion
"Above" and "supra" are functionally interchangeable in legal writing as cross-reference signals, but their register differs. "Supra" is the Latin form, conventionally used in scholarly legal writing, law review footnotes, and treatises to direct readers back to an earlier citation or passage. "Above" performs the same function in statutes, contracts, pleadings, and judicial opinions written in plain English style. Historical sources, particularly pre-twentieth-century English and American legal texts, use "above" where modern academic convention would require "supra." Researchers reading across periods should treat them as equivalent navigational signals.
Why It Matters in Research
The term "above" creates traps for researchers working across historical sources in at least three areas.
First, party identification in appellate records. Historical pleadings and appellate filings routinely identify parties as "plaintiff above," "defendant above," "plaintiff below," and "defendant below" rather than by the appellant/appellee labels familiar to modern practice. These labels reflect procedural posture at the time of filing, not the party's original role at trial. A "plaintiff above" may have been the original defendant who prevailed below and is now defending a favorable judgment on appeal — or may be the losing party who initiated the appeal. Context governs; the label alone does not tell you who won at trial.
Second, "bail above" as a term of art. Researchers encountering this phrase in historical common law sources must distinguish it sharply from "common bail" or "bail below." Bail above — special bail — was a substantive commitment with real legal consequence; common bail was a formal fiction. Conflating them misreads the procedural stakes of a historical proceeding.
Third, cross-reference reliability. When "above" is used as a document-internal pointer in historical instruments or statutes, researchers must verify that the document they are consulting is complete and correctly ordered. Reprinted, excerpted, or reorganized historical texts sometimes displace or omit the passage "above" was intended to reference. What the drafter meant by "the above provision" may not correspond to what appears above that line in the version a researcher is reading.
The term has no significant jurisdictional variation and no constitutional dimension. Its importance is navigational and procedural.
Historical Dictionary Support
The historical dictionaries are in close agreement on the core meaning: "above" denotes hierarchy (higher court) and principal status (bail above as distinguished from common bail). Black's (1st and 2nd editions) and Burrill track nearly identically, both citing Blackstone's Commentaries on the bail above definition. Bouvier is the most spare, offering the hierarchy meaning without elaboration. Anderson adds the most practical granularity, glossing "plaintiff above" and "defendant above" as distinct party designations and noting the contrast with "below" — a useful flag that these were live terms of art in pleading, not merely descriptive phrases.
None of the historical dictionaries addresses the document-referential use of "above" as a cross-reference signal, presumably because that usage was so universal in legal drafting as to need no definition. Researchers should not infer from this omission that the referential use is modern; it appears consistently throughout early modern English legal instruments.
Anderson's note that "above all incumbrances" means "in excess of such incumbrances" in property contexts is worth preserving. It illustrates that "above" in a transactional instrument can carry a quantitative meaning — exceeding a stated value or threshold — rather than a purely spatial or hierarchical one. This usage surfaces in historical mortgage documents and conveyances and should not be read as a cross-reference signal.