Question IX: Whether it is lawful for the accused to appeal to another judge

To appeal is licit for one who has been aggrieved. For so the Apostle Act. 25. appealed to Caesar, and it is granted in dist. 2. quaest. 6. C. omnis, where Anacletus the Pope, epist. 1. says: Let every oppressed man freely, if he wishes, appeal to the judgment of Priests, and let him be prohibited by no one, but be supported and delivered by them.

And this has also been granted to Regulars, as the Sacred Congregation over Bishops and Regulars declared in the year 1587, of which Sorbus in Compend. Privilig. Mendic. v. Appellare, and Lezana notes t. 1. cap. 9. num. 7. with D. Bonau. in spec. animae, cap. 1. §. Item ex tertio.

So that not only one condemned from indicia, but even one convicted can appeal, l. 2. §. 1. where the Glossa Bart. Cyn. and Castrens. Cod. whose appell. Vivian. opinione 50. Guaz defens. 36. cap. 11. Farinac. quaest. 101. num. 131. Scacc. de appell. quaest. 17. lim. 4. num. 7. asserting this to be the common opinion.

That one who is not aggrieved cannot appeal, all teach with Baldus on the Leg. un. Bartolo Castrensi, Salyceto, Cod. whose appell. Scac. quaest. 5. num. 94. See below on the Aduocato quaest. 6.

Therefore one who has confessed, and one convicted, for that reason they say cannot appeal, unless he brings forward some grave cause. See Farinacium quaest. 101. num. 143. Scac. quaest. 17. lim. 4. num. 15.

Since therefore the Judge proceeds by the right order, and there is no cause for the Accused, because the sentence has been laid down according to the sense of the Doctors, it is not licit to appeal.

Three conditions they require for a just appeal. The first is, that it be made within ten days. The second, that the Judge be ordinary, or delegate, not arbiter. The third, that one not be appealed more than three times from the same sentence. So Tanner. disp. 4. quaest. 4. dub. 5. See other conditions in Sylvestro under the word appellatio.

But if the sentence is manifestly iniquitous, one can appeal even without those conditions. So Tanner. num. 100. with Valentia quaest. 11. p. 3.

But here a grave question occurs: Whether when the Judge has judged according to the more probable opinion, the appeal is licit.

I SUPPOSE, however, that the Judge is bound in judging to follow the more probable opinion. So commonly at Sanchez Tom. 1. Lib. 1. cap. 9. num. 37. and Dianam part. 2. Tract. 13. resol. 3.

THAT, however, in absolving and condemning he might act on a probable opinion, leaving the more probable aside, many have taught, at Sanchez num. 46. Dianam part. 2. tract. 13. resol. 3. where he reports Alvarez, Bonacina, Lorcam, Ruam, Delrium. Others subscribe to these at Dianam part. 3. in addit. secundariis, resolutione 13.

INDEED I in prima secunda, Tract. 2. disp. 17. de opinione probabili judged that in criminal matters the Judge ought to hold that opinion which favors the Accused, even if less probable. So with Diana part. 3. addit secund. resol. 13. from which it follows that if he judges, following the more probable opinion against the Accused, the latter can appeal. In this, however, there is a great controversy: Whether he can licitly appeal.

The FIRST opinion entirely denies it. So Petrus Ledesma tom. 2. tract. 8. cap. 24. concl. 8. diff. 2. adducing Bannes, and it is held by those who say the Judge is not obliged, for the favor of the Accused, to follow even a less probable opinion. Sancius in select. disp. 44. num. 52. Bonacina de Legibus, disp. 2. quaest. 4. puncto 9. num. 15. Philippus dictus noster quaest. 143. num. 6.

BUT woe, woe to the Accused, the Advocates, and the Procurators (Diana cries out, part. 3. resol. 104.) if that opinion were true. Therefore he asserts that the Accused can in this case appeal on account of a cause of blood, with Ioan de la Cruz in direct. part. 1. pract. 8. art. 3. dub. 11. concl. 2. Salon 2. 2. q. 69. art. 3. concl. 2. Sylvius inclines in 2. 2. D. Thom. quaest. 64. art. 5. and Turrianus holds it absolutely 2. 2. Tom. 2. disp. 51. dub. 1.

I ADD with Diana, against Salonium, Sylvius above, and Malderum 2. 2. tract. 6. cap. 3. dub. 4. that this is true also in civil causes, even if the inferior Judge has rendered sentence according to the more probable opinion. Which opinion Cruz holds only in the case where the appellant is in possession; but Diana says it is always true generously, provided the contrary opinion, for which the appeal is made, be probable.

YOU WILL SAY. In a civil cause the superior Judge will be bound to judge according to the more probable opinion, as you said in prima secundae, at the place cited, and the inferior has already judged according to this.

Diana answers that the Judge can judge according to a probable opinion, leaving the more probable aside, as the Doctors teach, whom he adduced in Tract. de Parlam. resol. 20. and Tract. de opinione probabili resol. 3.

But the RATIONALE in the criminal case is more solid, because it is licit to defend one's life by an honest means. Therefore the appellant, resting on a probable opinion, acts reasonably and licitly; why then is he compelled to undergo death, if he is held on a probable basis to defend his life?

THIS follows more concerning reputation than concerning the goods of riches: For reputation is a good which for the most part I preserve for myself without the loss of any good in another nearby; But riches, if they are given to me, are taken away from another.