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APPELLA´TIO

APPELLA´TIO


1. Greek (ἔφεσις or ἀναδικία).

Owing to the constitution of the Athenian tribunals, each of which was generally appropriated to its particular subjects of cognizance, and therefore could not be considered as homogeneous with or subordinate to any other, there was little opportunity for bringing appeals properly so called. It is to be observed also, that in general a cause was finally and irrevocably decided by the verdict of the dicasts (δίκη αὐτοτελής). There were, however, some exceptions, in which appeals and new trials might be resorted to.

A new trial to annul the previous award might be obtained, if the loser could prove that it was not owing to his negligence that judgment had gone by default, in which case he was said ἐρήμην ἀντιλαχεῖν (Dem. c. Zenoth. p. 889.27), or that the dicasts had been deceived by false witnesses (δίκη ψευδομαρτυριῶν). And upon the expulsion of the Thirty, a special law annulled all the judgments that had been given during the usurpation (Dem. c. Timocr. p. 718.56). To this class of causes we find the phrases δίκη ἀνάδικος, ἀναδικία, ἀναδικάζεσθαι, παλινδικία, παλινδικεῖν applied; and they may be compared, mutatis mutandis, with the “motions for a new trial” of the English law.

An appeal properly so called (ἔφεσις) was allowed only in the following cases :--

See further details under the respective headings [DIAETETAE, DIAPSEPHISIS, EPIBOLE, SYMBOLON, DIKAI APO]. These and other obscurer cases of appeal are noticed by Pollux (8.62, 63) in the following words:--“Ἔφεσις is when one transfers a cause from the arbitrators (διαιτηταί), or archons, or men of the township (δημόται) to the dicasts, or from the senate to the assembly of the people, or from the assembly to a court (δικαστήριον), or from the dicasts to a foreign tribunal; and the cause was then termed ἐφέσιμος. Those suits were also called ἔκκληται δίκαι. The deposit staked in appeals, which we now call παραβόλιον, is by Aristotle styled παράβολον.

It is not easy to determine upon what occasions an appeal from the archons could be preferred; for after the time of Solon their power of deciding causes had degenerated into the mere presidency of a court (ἡλεμονία δικαστηρίου), and the conduct of the previous examination of causes (ἀνάκρισις). Upon the rejection of the plaintiff's suit in this previous examination as unfit to be brought before a court, he would most probably proceed against the archon in the assembly of the people for denial of justice, or would wait till the expiration of his year of office, and attack him when he came to render the account of his conduct in the magistracy (εὔθυναι). (Antiph. de Choreut. § § 42, 43.) An appeal, however, from the archons, as well as from all other officers, was very possible when they imposed a fine of their own authority and without the sanction of a court; and it might also take place when the king archon had by his sole voice made an award of dues and privileges (ψέρα) contested by two priesthoods or sacerdotal races. (Lex. Rhetoricum, p. 219, 19.)

[J.S.M] [W.W]


2. Roman.

Under the republican constitution the word appellatio and the corresponding verb appellare are used to express the application of an individual to a magistrate, and particularly to a tribune of the people, for their intercession in order to prevent a wrong being inflicted on the applicant by the order of some other magistrate. The magistrate or tribune to whom such application was made, had the power of nullifying the order of the magistrate appealed against. The application had to be made within a prescribed time. There are many instances recorded of criminal, civil, and [p. 1.145]administrative decrees of magistrates being set aside on such applications.

Appellatio, in the above sense, is to be distinguished from provocatio.

Provocatio is the term used for the right of appeal, in criminal cases, from a magistrate to the populus. It would seem that the provocatio was an ancient right of Roman citizens. The surviving Horatius, who murdered his sister, appealed from the duumviri to the populus (Liv. 1.26). The provocatio, though it existed in the regal period, could not be brought against the king's decisions without his permission.

There was subsequently a right of appeal from the Consuls, subject to the same restriction, but by the Valerian law (B.C. 508) the Consuls were obliged to give leave to appeal where they had passed sentence inflicting capital or corporal punishment. By a subsequent law the same principle was applied to sentences under which heavy fines were imposed. The decemviri took away the provocatio, but it was restored by a lex consularis de provocatione, and it was at the same time enacted that in future no magistrate should be made without being subject to the right of appeal. On this Livy (3.55) remarks that the plebeians were now protected by the provocatio and the tribunicium auxilium: this latter term has reference to the appellatio properly so called (3.13, 56). Appius (Liv. 3.56) applied (appellavit) to the tribunes; and when this produced no effect, and he was arrested by a viator, he appealed (provocavit). Cicero (Cic. de Orat. 2.48) appears to allude to the re-establishment of the provocatio which is mentioned by Livy (3.55). The complete phrase to express the provocatio is provocatio ad populum: and the phrase which expresses the appellatio is appellare, and in the later writers appellare ad.

The provocatio was an appeal in the strict sense of the term, i. e. it consisted of a rehearing of a case previously tried, and a new judgment upon it. The provocatio was, however, limited to criminal matters. In civil suits there was not, and could not be, any appeal under the republic, for the purpose of revising and altering a decision, for each magistrate had power to decide finally within the limits of his jurisdiction: and, as a general rule, the sentence of a judex could not be reversed by the magistrate who appointed him, and was not even subject to intercessio; but in the provinces judices were subject to the control of the governor (Cic. Ver. 2.13, 27). The appellatio was to some extent a remedy against an illegal decree, but it was not a rehearing and revision of the previous decision, and so not an appeal in the strict sense: it was rather in the nature of a stay of execution. Where, however, an official had delegated his jurisdiction to another, there was a regular appeal to the delegating authority. Also in exceptional circumstances, a magistrate who had appointed a judex might grant a new trial by means of his extraordinary equitable remedy, the in integrum restitutio, in case he were dissatisfied with the decision of the judex (Cic. pro Flacco, 21, 49; V. Max. 5.4, 7; cf. Mommsen, Staatsrecht, 1.25, note 3). Appellate jurisdiction in civil causes can hardly be said to have existed under the republic, but it became an institution on the establishment of the empire. Mommsen has connected this judicial reform with the attempt of Julius Caesar to revive the regal authority (Röm. Gesch. 3.475), but there is no proof of such appellate jurisdiction being exercised before the time of Augustus, when a regular gradation of appeals from inferior to superior jurisdictions was constituted, probably under the authority of the Lex Julia Judiciaria. The origin of the new institution is left in much uncertainty. The emperor centred in himself both the power of the populus and the veto of the tribunes; hence he could rescind the decrees of all magistrates, but these powers were not a sufficient foundation for the new appellate jurisdiction by which the civil decrees of magistrates were subject to a regular revision. The jurisdiction was not limited, as under the republican constitution, to appeals brought to a delegating magistrate against the decisions of his delegate.

Under the empire the terms provocatio and appellatio lost their original signification. Thus Gellius (4.14) has used provocatio for appellatio. In the Digest (49, tit. 1, de appellationibus) provocatio and appellatio are used indiscriminately for a civil appeal, which is to be explained by the fact that the idea of the civil appeal was partly taken from the appellatio in its earlier sense, and partly from the provocatio. Provocatio seems so far to have retained its original meaning as to be the only term used for an appeal in criminal matters.

Civil appeals came, in the last resort, either to the emperor or to the senate. This division of the supreme appellate jurisdiction between the emperor and the senate was in accordance with the dual system of government which Augustus contrived. Appeals from Rome, Italy, and the provinces under its government would have been confined to the senate, if the division had been strictly carried out, while appeals from imperial provinces would have come to the emperor; but while the emperors reserved to themselves the sole right of hearing appeals from their legati, they also took cognisance of all appeals from Rome, Italy, and the senatorial provinces, except during the short periods when the strict principle of division was adhered to (Suet. Calig. 16, Ner. 17; Tac. Ann. 14.28).

The senate sitting as a court of appeal was perhaps regarded as the consilium of the consuls. There was no appeal from the senate to the emperor (Dig. 49, 2. 11.2). In course of time the emperor exercised the appellate jurisdiction of the senate by virtue of the consular power which he assumed.

There was a right of appeal from the decrees of magistrates and from the decisions of all judges who had acted under an authority delegated to them by a magistrate; but it is a question whether there was any right of appeal from the judex proper, though the emperor exercised in exceptional cases the power of granting a new trial, as magistrates had previously done by means of the in integrum restitutio (Suet. Dom. 8).

The datus judex of the Corpus Juris is not the judex of the republican constitution, but a judge acting under a delegated power, from whose decision there would be an appeal as a matter of course (Mommsen, Staatsrecht, 2.2, 940; cf. Hollweg, Civil-Prozess, 2.46).

If the sentences of judices could not be appealed [p. 1.146]pealed against, the extent of appellate jurisdiction must have increased, as the magistrate came to decide a greater number of cases himself without the help of a judex, since the decision of the magistrate would be subject to appeal. At length, when in the time of Diocletian all judicia became extraordinaria, the right of appeal was necessarily applicable to all judgments.

The emperor either heard civil appeals in person, or delegated the hearing of them to others. Augustus every year assigned civil appeals from the city to the Praetor urbanus; provincial appeals to consulares appointed for each province (Suet. Aug. 33). The senate likewise delegated civil appeals to the consuls, who frequently transmitted the hearing of them to special delegates. Appeals tried by delegates were generally subject to a further appeal to the delegating authority; but if a special delegate was appointed by the emperor, it was not uncommon to exclude any further appeal. In the 3rd century we find civil appeals from the provinces frequently entrusted to the Praefecti praetorio; those from the city came regularly before the Praefectus urbi. From these the only appeal was to the emperor himself, whose decision was in all cases final; but he had always the right of refusing to exercise his jurisdiction.

The process by which an appeal was brought in civil cases might be either oral or written. The written appeal or libelli appellatorii showed who were the appellant and defendant, and the nature of the judgment appealed from. The court below transferred the case to the superior court by litterae dimissoriae or apostoli. The time within which appeals could be brought was limited. If the appellant was unsuccessful in his appeal, he was subject to a pecuniary penalty.

From the time of Augustus, the populus did not exercise sovereign criminal jurisdiction. The emperor himself took cognisance of criminal cases as a court of first instance, having coordinate jurisdiction with the senate. The quaestio procedure continued to be the ordinary mode of trial [judicium-populi]. Appellate criminal jurisdiction was confined within narrow limits. No appeal lay to the emperor from the decisions of judices or from the senate, although he might annul a decree of the latter body by intercessio. The emperor delegated criminal jurisdiction to governors of provinces in capital cases, to the Praefecti urbi, and to others: appeals might be heard by him against the decisions of his delegates. The extension of imperial delegation in criminal cases and the decline of republican institutions, especially the abolition in the 3rd century of the quaestiones, led to the emperor's complete supremacy over criminal courts, which he also acquired over civil.

The system of appellationes under the empire was not limited to matters of criminal and civil procedure. A person might appeal in matters that related to the fiscus, to civil offices and burdens, and other administrative subjects. (Paul. 5.32-37; Dig. 49, 1; Cod. Just. 7, 62; Puchta, § § 180, 181; Mommsen, Staatsrecht, 2.2, pp. 930-948; Bethmann-Hollweg, Civil-Prozess, 1.62, 2.42, 49; Rudorff, Rechtsg. 2.85.)

[G.L] [E.A.W]

hide References (11 total)
  • Cross-references from this page (11):
    • Cicero, Against Verres, 2.2.27
    • Suetonius, Divus Augustus, 33
    • Suetonius, Domitianus, 8
    • Tacitus, Annales, 14.28
    • Cicero, On Oratory, 2.48
    • Livy, The History of Rome, Book 1, 26
    • Livy, The History of Rome, Book 3, 56
    • Livy, The History of Rome, Book 3, 55
    • Gellius, Noctes Atticae, 4.14
    • Valerius Maximus, Facta et Dicta Memorabilia, 5.4
    • Valerius Maximus, Facta et Dicta Memorabilia, 5.7
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