Question VIII: Who is the judge from whom, and to whom, appeal is made

The Judge from whom the appeal is made must be such that he has begun to burden the accused; wherefore whether he be a delegate or an Ordinary, provided he not be supreme in rendering the judgment, from him appeal is licitly made; I said: unless he be supreme, etc., because from the Supreme Pontiff it is licit to appeal not even to a General Council; as was said, where concerning excommunication of the Bullae Coenae.

But where the Judge has rendered sentence, interposing that clause: omni appellatione remota, or other equivalent terms, appeal cannot be made from him; because such a sentence removes all impediments of execution, unless in some case of law mention of appeal be expressly made.

But if the sentence be actually committed to execution, no appeal is given from the execution, unless he exceed in executing, Cap. pastoralis, §. etsi, de officio iudic. deleg. et leg. ab executione, Cod. quorum appellation. etc.

The Judge ad quem must be the proximate superior of the Judge from whom the appeal is made, and thus grade by grade up to the supreme judge, as is had in the decree of the Sacred Congregation related above. But if it be done otherwise, the adverse party objecting, the appeal is held null; yet if it be done through error and in good faith, the cause is devolved to the competent Judge, leg. 1. ff. de appellat.

These things, however, are not understood of the Pope, to whom, as also to his Legate, the legation still remaining, it is licit to appeal, the intermediate Judges omitted, c. dilecti, 3. de appellat.; say the same if the middle Prelate be long absent, then the cause can be accelerated to another superior to him.

If the Pope has delegated someone to the cognizance of a particular cause, then the appeal is made to the Pope himself, not to his Legate a latere; let the same hold for every delegate judge, from whom the appeal is made immediately to the one delegating.

The OFFICE, however, of the Judge ad quem is manifold. For first he must inquire of you, whether anything substantial is lacking to the appeal?

The SUBSTANTIAL things, however, required for a legitimate appeal are: first, the expression of the name of the appellant party, as also of the judge, a quo; this however is only congruous; then the mention of the place and time at which the appeal was made, that it may be known whether at the due time, etc. Then that it be committed to writing, unless it be made in continenti; yet if sufficient proof of it can be had elsewhere, it may be omitted.

THIRD, the cause must be expressed, except in the definitive sentence, in which it suffices to intimate that one appeals from an unjust cause. Vide the dictum, quaest. 146. num. 17. et seq.

The appellant must also seek from the Judge, a quo, the Apostoli, or letters of notification, by which he signifies that he has had recourse to the appeal; of these letters, however, there are various species; for some are Testimoniales, by which the appellant, in the absence of his Judge, attests before upright and trustworthy men the said appeal: Others are Reverentiales, by which the judge, a quo, attests that out of reverence for the judge, ad quem, he has neither delayed nor impeded the appeal: Finally others are Refutatoriae, by which the appeal, as light and frivolous, is repelled, these having been seen.

SECOND, the Judge, ad quem, must diligently examine the justice of the appeal, whether in it there was a burden to the accused, whether the cause was deferred, etc.

THIRD, whatever has been transacted by the Judge, a quo, he must take care to have transferred to himself, unless it contributes nothing to the declaration or cognition of the cause, cap. Exhibita, de iudiciis; he must, however, diligently inspect whatever things have been established against the Accused, and, as far as can be done, consult the reputation of the Judge, a quo. Other things more numerous, vide at Bictus in the places cited, Elizaeus, tract. 11. throughout, Farin. tract. de Iudice, quaest. 5. et seqq. and others among these.