Question VI

GRATIAN. Part I. The sixth question follows, in which it is asked: By what remedy may a vitiated case be relieved, and is that remedy to be given to one who has uttered the plea of appeal for the sake of delaying the case? A vitiated case will be able to be relieved by the remedy of appeal. Hence Pope Fabian says, [to Bishop Hilary, letter III, c. 3]:

Let it be lawful for an appellant to relieve a vitiated case by the remedy of appeal.

[PALEA.

The same author a little above. No affliction or custody of detention ought to injure an appellant.]

Likewise Pope Anacletus, [letter I, at the end]. Let every oppressed person freely appeal to the judgment of the priests, if he wishes, and let him be prohibited by no one, but let him be supported, freed, and heard by them. But if difficult cases or greater matters have arisen, let them be referred to a greater see. And if they cannot easily be discerned or justly terminated there, when the assembly of the highest persons has been gathered—which is accustomed and ought to occur every year—ecclesiastical matters shall be judged in common, justly and in a manner pleasing to God, before the patriarch or primate, and secular matters before the patrician. Likewise Pope Sixtus, [letter II], writes to all rulers of the Church, saying:

If any one of you has been assailed in some adversity, let him freely appeal to this holy and Apostolic See and have recourse to it as to the head, lest an innocent person be condemned or his church suffer loss.

The same to Bishop Gratus, [letter I]. All bishops who are assailed or accused in any graver cases shall, whenever it is necessary, freely appeal to the Apostolic See and flee to it as to a mother.

Likewise Pope Marcellus, [letter I to the Bishops of the province of Antioch]. All bishops who wish, or for whom it shall be necessary, ought to have recourse to the Roman Church as to the head and appeal to it, so that they may receive protection and consecration from it. This ought by no means to be denied to any bishops; rather, without any custody, excommunication, condemnation, or despoiling, let them be permitted to go freely.

Likewise Bishop Victor, [to Theophilus of Alexandria, letter I, c. 3]. If anyone thinks himself burdened by his own metropolitan, let him be judged before the patriarch or primate of the diocese, or at the See of the universal Apostolic Church.

Likewise Zephyrinus, Archbishop of the city of Rome, [letter I]. An appeal is to be made to the Roman Church by all, but especially by the oppressed, and they are to hasten to it as to a mother, so that they may be nourished at its breasts, defended by its authority, and relieved from their oppressions, because a mother cannot and ought not to forget her son.

Likewise Pope Julius, [in the decrees, or in the rescript to the Easterners, c. 22]. It was resolved that, whenever an appeal has been made from any ecclesiastical judges to other ecclesiastical judges, where there is greater authority, a hearing shall not be denied.

The same, [c. 30]. Therefore the aforesaid privileges have been specially granted to this holy See, both concerning the assembling of councils and judgments and the restorations of bishops, and concerning the highest affairs of the churches, so that all the oppressed may receive aid from it, and those unjustly condemned restoration, and such things may neither be presumed by the impious without vengeance nor carried out without their own condemnation. GRATIAN. Part II. Therefore, since Zephyrinus says that an appeal is to be made by all, but especially by the oppressed, and Marcellus writes, “All bishops who wish, or for whom it shall be necessary, ought to appeal,” it is evident that the plea of appeal is not to be denied to an accused person, whether he is burdened or not. Certain persons, however, make this distinction: they refer those wishing to persons to be consecrated, and those suffering necessity to the oppressed, so that the sense is: All who wish to receive consecration from the Roman Church, and are impeded by some persons, ought to appeal to it; all for whom it shall be necessary to flee to it in their oppressions shall likewise utter the plea of appeal, so that the latter may receive protection from it and the former consecration. Likewise that statement of Zephyrinus is distinguished: “An appeal is to be made to the Roman Church by all.” It is to be understood of those who wish to receive consecration from it, or who have suffered some injury from their prelates, but especially by the oppressed. According to the first interpretation, the oppressed are understood to be those affected by some injury; but according to the second, those unjustly condemned by a judge are called oppressed. According to this distinction, one who in some matters has uttered the plea of appeal not for relief but for delay does not have authority to appeal. But since Gregory writes to all throughout the several provinces:

Requesting your charity, we command by our decree that, if any one of his rivals—which we do not wish—should damnably attempt to accuse Aldric, bishop of the church of Le Mans, it shall be lawful for him, after a hearing before the primates of the diocese, if necessary, to appeal to us, and by our authority to conduct and conclude his actions according to the decrees of the Fathers, either before us or before our legates sent from our side; and let no one judge him or presume to judge him before these things. But if something grave and intolerable—which God forbid—has been alleged against him, our censure must be awaited, so that nothing may be decreed beforehand concerning one who has fled to the bosom of the holy Roman Church and implores its aid, until it has been commanded by the authority of that Church, which so imparted its functions to other churches that they were called to a share of solicitude, not to the fullness of power. § 1. But if, as we do not suppose, something contrary to this has been presumed by anyone, let him, removed from clerical office, be judged by all to be guilty before apostolic authority, lest wolves who have entered under the appearance of sheep dare with bestial savagery to tear anyone to pieces and presume to inflict upon others what they do not wish done to themselves. Likewise, since Pope Vigilius says, [in the letter to Eleutherius, final chapter]:

One who knows that he has been placed over others shall not bear it badly that someone has been placed over him. For the Church itself which is first so entrusted its functions to the other churches to be dispensed that they were called to a share of solicitude, not to the fullness of power. Hence it is clear that the judgments of all bishops appealing to the Apostolic See, and all the greater business of cases, have been reserved to that holy See—especially since, in all these matters, the counsel of that See must always be awaited; and if any priest has attempted to obstruct its path, let him know that he will render an account before that holy See not without peril to his honor. GRATIAN. Likewise, since Bishop Nicholas inveighs against the Archbishop of Reims, who dared to condemn Bishop Rothard when he was appealing to the Apostolic See, saying thus:

Your shrewd wisdom—would that it had been kindled by a good fire received—took up the subject matter for a judgment of deposition against Rothard, removed him from the journey to the Apostolic See, condemned him while he was continuously appealing to the Apostolic See, and committed him to prison custody. And below: § 1. Nevertheless, you ought by no means to have consigned to oblivion the privileges of the Apostolic See, by which the venerable canons command that the judgments of the whole Church be brought to it. And below: § 2. Know that we have carried out these things concerning Rothard for this reason: so that the privileges of the Apostolic See, which appeared to have been badly violated by you, might at last, by apostolic authority and the canonical deliberation of the Fathers, be adorned with their former character and proper honor.

Likewise Pope Leo, [to Anastasius, Bishop of Thessalonica, letter LXXII, otherwise LXXIV]. One who knows that he has been placed over certain persons shall not bear it badly that someone has been placed over him; rather, let him himself also render the obedience which he exacts, and just as he does not wish to bear the burden of a heavy load, so let him not dare to impose an unbearable weight upon another. For we are disciples of the humble and gentle Master, who says: “Learn from me, for I am gentle and humble of heart.” GRATIAN. It is evident, therefore, that a period of delay is to be denied to no appellant. But if he has appealed for the sake of frustrating delay, he will be condemned by the judge to whom the appeal was made. The time for an appeal is either before sentence is given or after it is given. For whenever a person perceives that he is being excessively burdened, he can freely appeal. Hence Pope Sixtus says, [II, letter 1 to Bishop Gratus]:

If anyone thinks himself burdened by his own metropolitan, let him be judged before the primate of the diocese or before the Pope of the universal Apostolic Church.

[Likewise Felix II, to the Bishops assembled in the Synod of Alexandria, c. 19]. Whenever bishops think themselves excessively burdened by their coprovincials or by the metropolitan, or hold them suspect, let them immediately appeal to the Roman See, and let it be lawful for them to go freely. And when they have appealed to the aforesaid Roman See or have asked to be heard by it, let no one presume to excommunicate them, to seize their sees, to take away their property, or to inflict any violence upon them before the case of both parties is concluded by the authority of the Roman Pontiff. If anything contrary to this has been presumed by anyone, it shall be nothing and shall lack force.

Likewise Pope Julius, [in the rescript to the Eastern bishops, c. 30]. Therefore the aforesaid privileges have been specially granted to this holy See, so that all the oppressed may receive aid from it, and those unjustly condemned restoration. GRATIAN. The oppressed and those thinking themselves excessively burdened are understood before sentence is given; those unjustly condemned, after it is given. Hence Eutychian, Bishop of the city of Rome, writes to all bishops, [letter II, c. 1]:

One is not to act in ecclesiastical business as in secular business. For even in secular business, after a person summoned under the laws has appeared and begun to contend in the forum, it is not lawful for him to withdraw before the case is completed. But in ecclesiastical business, after the case has been stated, it is lawful to withdraw if it is necessary or if he sees himself being excessively burdened. GRATIAN. Part III. But those who through contumacy have been unwilling to obey the judges shall be deprived of communion. Hence in the Council of Milevis, [c. 24]:

Whoever has been proved unwilling through contumacy to obey the judges: when this has been proved to the bishop of the first see, let him give letters so that none of the bishops shall communicate with that person until he obeys. GRATIAN. Likewise, that an appeal can be made after sentence is given is attested by Pope Fabian, who says, [to Bishop Hilary, letter III, c. 2]:

Let it be lawful to appeal even in criminal cases, and let the plea of appeal not be denied to one whom a sentence has destined for punishment. GRATIAN. The same author affirms this above, [in the same chapter]:

If anyone has perceived a judge to be adverse to him, let him utter the plea of appeal. GRATIAN. Part IV. But one who wishes to appeal after sentence has been given shall appeal within five days; within those same days he shall receive dimissory letters from the judge from whom he has appealed, and within those same days he shall set out on the journey to the judge to whom he has appealed. Hence it is found to have been established thus in the Theodosian laws:

On account of the excessive license of appellants, lest they appear to have free discretion in reconsidering or revoking sentences, both periods for appeal and penalties have been established, so that whoever wishes to appeal before the judge who heard his case and to appeal to another judge shall appeal within five days, shall arrive without any evasion before the judge to whom he has appealed within these same five days, and the very day on which he received the letters shall be counted particularly among these five days. But if the journey is longer, in addition to the five days—

[PALEA.

—when a reckoning has been made, twenty miles of daily travel shall be computed for each day.]

Likewise, [in the same place, title XXXIV]. From the judge from whom an appeal has been made, dimissory letters are to be directed to the judge who will take cognizance of the appeal; these are commonly called apostoli. Their request and receipt must officially be completed within the fifth day. These matters have already been interpreted above under the title concerning cautions and penalties for appeals. § 1. Those who have not requested, received, or delivered the dimissory letters within the established periods shall be excluded from bringing the action by a procedural bar and compelled to bear the penalty for appeal.

Likewise, [in the same place, title XXXV, c. 2]. If anyone has appealed not from confidence in a just case but for the sake of introducing delay, lest sentence be pronounced against him, or, after confessing concerning his own deed, has wished to appeal lest he be condemned, appeals of this kind shall not be received.

Likewise, [in the same place, title XXXVI, c. 1]. Whenever, after the case has been heard, the possessor appeals from the judge, the fruits of the possession which is in dispute are deservedly sequestered while the outcome of the hearing to be pursued is uncertain. For if the claimant has appealed, this cannot be demanded from him, because that which he does not have cannot be sequestered. § 1. If an appeal is made concerning urban estates or slaves, their possessions or rents, or even the freight charge if the action concerns the freight of a ship, are customarily deposited.

Likewise, [in the same place, title XXXVII, c. 1]. Whenever an appeal is pronounced unjust, the appellant is in every way to be punished, so that he is compelled to repay the expenses which his adversary incurred while pursuing it, not singly but fourfold. GRATIAN. By the foregoing authorities each person is permitted to appeal within five days after sentence is given. Justinian afterwards corrected this in his constitutions and decreed that the remedy of appeal was to be given to each person within ten days, saying:

Emperor Justinian Augustus. Imposing very many remedies upon the severity of the earlier laws, and especially making these provisions concerning appeals, we have deemed it necessary in the present instance also to arrive at a benefit of this kind. For it had been provided by antiquity that, if anyone conducted litigation in person and was condemned, he had the license to appeal for only two days; but if a case was argued through a procurator, it was extended to the next three days. From experience of affairs, however, we found this to be sufficiently harmful; for many men, ignorant of the subtlety of the laws and thinking that appeals were to be presented within three days, fell into immediate danger and lost their cases when two days had elapsed. Hence we deemed it necessary to provide a suitable remedy for a matter of this kind. And we decree that all appeals—whether the cases are argued in person, through procurators, through defenders, or through curators and tutors—can be offered to the judges whom it concerns, whether great or lesser, within the space of ten days to be numbered from the reading of the sentence, with the most exalted praetorian prefecture excepted. Thus it shall be lawful for a man to deliberate most fully within that space whether he ought to appeal or to remain at rest, so that the work of appeal may not be undertaken repeatedly because fear presses upon him, but all may have an opportunity for examination, which can restrain the unconsidered ardors of men.

§ 1. In addition, we decree that, if at any time litigation is expected to be brought into our consistory and it should perhaps happen that the imperial majesty, occupied with public cases through provisions for worldly affairs, cannot convene the Fathers so that the case may be argued, the litigation shall not be endangered by this. For what fault is it of the litigants if the imperial summit is occupied? Or who is of such authority that he can constrain an unwilling prince to convene the Fathers and the other nobles? But if anything of this kind has occurred, the case shall remain untouched until the emperor, moved of his own accord, orders the nobles to be convened, permits the litigation to be introduced, and permits all things to proceed according to custom.

§ 2. In a third chapter, that also must be arranged which antiquity established well but novelty neglected. For when the venerable authority of antiquity so ordered the magistrates that some were greater, some intermediate, and some lesser, and appeals from lesser judges were remitted not only to the greatest judges but also to the tribunal of judges of spectable rank, so that they too might conduct the litigation with the sacred court employed, novelty abandoned this. It happened, therefore, that our greatest judges were disturbed over the smallest cases, and men were wearied by great expenditures on account of the smallest cases, so that perhaps the valuation of the entire litigation would not suffice for judicial expenses. We therefore decree that, whenever an appeal from the Egyptian region or either Libya joined to it is expected, up to the amount of ten pounds of gold, it shall not come to this royal city but to the Augustal prefect, who shall hear and decide the case in the place of the sacred cognizor, with no appeal to be presented to them after the final sentence. In like manner, whenever anything of this kind has arisen in the Asian or Pontic diocese, appeals up to the aforesaid amount of ten pounds of gold shall be remitted to the men of spectable rank—perhaps counts, proconsuls, praetors, or governors—to whom we have specially assigned the conduct of those litigations, so that they too, after the likeness of the Augustal prefect, may intervene in the place of the sacred cognizor and bring the cases to decision with no hope of appeal, in fear only of God and the laws. But the eastern regions shall send cases suspended by appeal and limited to the amount of ten pounds of gold to the man of spectable rank, the Count of the East, who in like manner will impose a hearing and an end upon them.

This, of course, is to be observed: men of spectable rank or other judges of spectable rank shall not transmit their appeals in litigations, of whatever amount they may be, to other judges adorned with the same spectable rank—since appeals ought not to be referred to equal judges, but ought to ascend from a lesser judgment to a greater tribunal. Instead, their appeals, of whatever amount they may be, as was said, shall be directed to the most illustrious prefecture, which shall decide them together with the eminent man who is quaestor at that time, with both offices providing assistance: that is, both from the sacred bureaus according to custom and from the praetorian prefect. Yet we decree these things in such a manner that neither from dukes nor from other judges of spectable rank—to whom perhaps, even if they are private persons, the imperial majesty has entrusted cases—shall an appeal proceed to the aforementioned judges of spectable rank, lest the case appear to proceed not by steps but perversely. Rather, it shall be referred from provincial governors and judges assigned by us, if they are not judges of spectable rank, within the aforementioned amount. But if those assigned by us as judges are illustrious, whose summits of dignity are above spectable rank, or if they are dukes, who in every respect are adorned with spectable rank, or if those delegated by the prince possess spectable dignity, their appeals, under whatever amount, shall be referred in the ancient manner to the competent judges in this royal city. All other things established in appeals, whether by ancient lineage, by the authority of earlier constitutions, or by our humanity, are to be kept untouched and inviolate.

From the Digest, under the title When an Appeal Is to Be Made, law 1, [§ Two days]. Two or three days for an appeal shall be computed from the day on which sentence was delivered. § 1. What, then, if sentence was spoken under a condition? Do we compute the time for appealing from the day of the sentence, or from the day on which the condition of the sentence was fulfilled? Certainly a sentence ought not to be stated under a condition; but if it has been so stated, what will be done? It is useful that the periods for appealing ought to be computed immediately. § 2. What is prescribed concerning sentences—that an appeal be made on either the second or the third day—is also to be observed in the other matters from which, although a sentence is not indeed pronounced, an appeal nevertheless ought and can be made, as when someone is nominated to a tutorship or to other civil duties and his excuse is not admitted. § 3. If perhaps immediately after sentence has been spoken, the person who pronounced it has not made himself available, as is accustomed to happen, it must be said that this does no harm to the appeal. For as soon as the appellant has an opportunity to approach him, he will be able to appeal. Therefore, if the judge immediately withdrew himself, aid is similarly to be given. § 4. What, then, if the circumstance of the hour causes him to withdraw? If perhaps sentence was spoken at the very last hour, he will surely not appear to have withdrawn himself. § 5. We always understand there to be an opportunity to approach if he has made himself available in public. But if he has not done so, is it to be imputed to anyone that he did not come to the judge's house, did not approach him in his gardens, and, further, did not go to his suburban villa? The better view is that it ought not to be imputed. Accordingly, if there was no opportunity to approach him in public, it will be better said that there was no opportunity to approach. § 6. If anyone did not have an opportunity to approach the very person from whom he appealed in order to give him the petitions, but does have access to the person to whom he appealed, it must be considered whether it can be pleaded against him as a procedural bar that he did not approach the latter. We follow this law: if there was an opportunity to approach the latter, the procedural bar has effect. § 7. It is evident that a person's own case is one whose advantage or loss pertains to him in his own name. § 8. If sentence has been pronounced against an absent person, the two or three days are to be computed from when he knows, not from when it was pronounced. But when it is said that an absent person can appeal from when he knows, we understand this thus: if he was not defended in the case through a procurator. For if the procurator did not appeal, it is difficult for the principal to be heard.

§ 9. If the governor of a province has indeed marked a person down for deportation to an island, and the emperor has rescripted that he be deported, let us consider when an appeal is to be made: when the emperor rescripts, or when the governor writes to him? I think an appeal is to be made when the governor orders that the person be taken into custody. But it is to be feared that it may be too late for an appeal to be made when the emperor has assigned him an island; for at that time the emperor customarily assigns an island after the governor's sentence has been approved. Again, this is to be feared: if the governor has burdened before the prince, with falsehoods, the person whom he labors to have deported, he closes off the road of appeal. What, then, is the answer? It will rightly be said, at the suggestion of humanity, that an appeal is not made fruitlessly both at this and at that time, because he has appealed not against the prince but against the craftiness of the judge. § 10. Let us consider this: if, when a letter was being written to the emperor, a copy of the letter was produced to the litigant and he did not appeal, and afterwards a rescript was issued against him, can he appeal from the letter previously produced to him? Since one who did not appeal at that time appears to have consented that the things written were true, he is not to be heard if he says that he awaited the outcome of the sacred rescript.

From the title On Appeals That Are to Be Received or Not. Part V. Appellants are not customarily heard unless they are persons whose interests are involved, persons to whom a mandate was given, or persons conducting another's business which the defendant would immediately ratify. But even if a mother has appealed from filial devotion, it must be said that she too ought to be heard; and if she has preferred to take care that litigation be prepared, she does not appear to intermeddle, although she cannot defend at the beginning. § 1. An appeal can be made before sentence if a judge has interlocutorily ordered that torture be applied in a civil matter, or in a criminal matter if he does this contrary to the laws. § 2. The request of one who frustrates the conduct of a case for the reason that he says he has given a petition to the prince and awaits a sacred rescript is prohibited from being heard; if he has appealed for that reason, the sacred constitutions prohibit his appeal from being received.

[Likewise Marcian, book 2 On Appeals, under the title On Dimissory Petitions, sole law]. After an appeal has been interposed, letters are to be given by the judge from whom the appeal was made to the person who will take cognizance of the appeal, whether the prince or someone else; these letters are called dimissory letters or apostoli. The sense of the letters is as follows: that, for example, Lucius Titius has appealed from that sentence which was pronounced between him and Maevius. It is sufficient to have requested the dimissory letters urgently and repeatedly within the prescribed time; and if he does not receive them, let him formally attest that very fact. For the constitutions require urgency from the person requesting dimissory letters. It is just, therefore, that, if it was due to the person who ought to give the letters that he failed to give them, this should not harm the person receiving them. § 1. Under the title That Nothing Be Altered. When an appeal has been interposed, whether it has been received or not, nothing ought to be altered in the meantime. § 2. If anyone condemned for several crimes has appealed concerning some but not others, it is asked whether his punishment is to be delayed or not. If the crimes concerning which the appeal was interposed are indeed graver, but that concerning which he did not appeal is lighter, the appeal is in every way to be received and the punishment delayed. But if he deserved a graver sentence from the category concerning which no appeal was made, the punishment is in every way to be imposed.

GRATIAN. The form of the apostoli is this: “I, N., bishop of the holy church of Bologna, by these apostoli release you, Roland the priest, chaplain of Saint Apollinaris, from observance of my judgment to the Apostolic See to which you have appealed.” The form of an appeal is this: “I, Adelinus, minister of the church of Saint Regina, although unworthy, perceiving myself to be excessively burdened by lord Walter, archbishop of the holy church of Ravenna, appeal to the Roman See and request apostoli.” § 1. But if he wishes to appeal after sentence has been given, this will be the manner of appealing for him: “I, A., minister of the church of Saint Regina, although unworthy, appeal to the Roman See against the sentence unjustly delivered against me by lord Walter, archbishop of the holy church of Ravenna, on the day before the Kalends of May, in the year of the incarnation of the Lord 1105, on the fourth day of the week, and request apostoli.” § 2. But if one or two persons wish to appeal on behalf of several, they shall appeal thus: “We, G. and P., syndics of the canons of the holy church of Bologna, perceiving ourselves to be excessively burdened, or against the sentence, etc., appeal to the Roman See and demand apostoli.” Appeals of this kind ought to be made in writing. A Catholic, however, is not permitted to appeal to the judgment of a person of another faith. Hence in the Fourth Council of Carthage, [c. 7]:

A Catholic who appeals his case, whether just or unjust, to the judgment of a judge of another faith shall be excommunicated. GRATIAN. Part VI. It is to be noted, however, that there are certain judges from whom one ought not to appeal. Hence it is read in the Council of Milevis, [c. 24]:

It shall not be lawful to appeal from judges whom common consent has chosen. GRATIAN. This is to be understood of arbitrators. For of judges, some are arbitral and others ordinary. Ordinary judges are those who receive lawful power from the apostolic pontiff, as ecclesiastical judges do, or from the emperor, as secular judges do. Arbitral judges are those who, possessing no power, are chosen as judges with the consent of the litigants, and to whom the matter is committed so that their sentence may be obeyed. Of these, some are ordinary and arbitral, while others are arbitral only. Ordinary and arbitral judges are those who, possessing lawful power, are chosen as arbitrators by persons who are not subject to their jurisdiction. Although these sit as arbitral judges and not as ordinary judges, nevertheless, by the privilege of their ordinary dignity, someone who is burdened will be able to appeal from them. Hence it is read in the Third Council of Carthage, [c. 10]:

Indeed, if judges have been elected by consent of the parties, it shall be lawful to appeal even from a smaller number than has been established.

Likewise from the Council of Milevis, [c. 22]. It was resolved that, if priests, deacons, or other lower clerics complain concerning the judgments of their bishops in cases which they have, neighboring bishops shall hear them and settle between them whatever is at issue, with others added by the neighboring bishops with the consent of their own bishops. But if they think that an appeal is to be made even from them, let an appeal be made only to African councils or to the primates of their own provinces. But those who think that an appeal is to be made overseas shall be received into communion by no one within Africa. GRATIAN. Unless perhaps they have appealed to the Roman See. But one who has appealed ought not to be remitted to the judge from whom he appealed. Hence in the Council of Sardica, [c. 7]:

If a bishop has been accused, and all the assembled bishops of that region have judged and have cast him down from his rank, if the person who appears to have been cast down has appealed and has fled to the most blessed bishop of the Roman Church and wishes himself to be heard, then, if the Roman bishop thinks it just that the examination be renewed, let him deign to write to those bishops who are in the neighboring and adjoining province, so that the bishops may diligently investigate all things and determine them according to the faith of truth. But if the person who requests that his case be heard again moves the Roman bishop by his supplication to send priests from his side, it shall be in his power what he wishes and what he judges. And if he decrees that persons are to be sent who are present to judge with the bishops, so that they also possess the authority of the person by whom they were sent, it shall be in his discretion. But if he believes that the provincial bishops suffice to impose an end upon the business, he shall do what he has judged most wisely in his counsel. GRATIAN. Those who are arbitral only are persons who have received no lawful power; it is not lawful to appeal from them, because this is to be imputed to those who chose such persons for themselves. But if the sentence of those from whom appeal is made has been dissolved, it shall harm them in no respect, unless perhaps they are proved to have rendered an unjust sentence after being corrupted by enmity or money. Hence it is read in the same Third Council of Carthage, [c. 10]:

Part VII. This also was resolved: when an appeal has been made from any ecclesiastical judges to other ecclesiastical judges where there is greater authority, it shall not harm those whose sentence was dissolved, if they could not be convicted of having judged either with a hostile mind or after being corrupted by some cupidity or favor. GRATIAN. But it is asked concerning the person from whom appeal is made whether he is to be summoned as a witness before the person to whom appeal is made concerning the business of which he undertook cognizance. Concerning this it was established thus in the Fifth Council of Carthage, [c. 1]:

It is to be established that, if anyone wishes to conduct in the Church any case under the apostolic law imposed upon the churches, and perhaps the decision of the clerics has displeased one party, it shall not be lawful for the cleric who was present or was the cognizor to be summoned in the judgment as a witness, and no ecclesiastical person of any kind shall be assailed to give testimony. GRATIAN. Furthermore, from those to whom appeal was made, as is read in the African Council, [c. 63], it is not lawful to appeal further:

But if an appeal has been made, let the person who appealed choose judges, and together with him the person against whom he appealed, so that thereafter it shall be lawful for neither to appeal from them. GRATIAN. This is to be understood after the second appeal, for it is not lawful to appeal a third time in one and the same case upon the same heads. Hence Emperor Justinian writes in book VII of the Code, under the title It Shall Not Be Lawful to Appeal a Third Time in One and the Same Case, [sole law]: “If anyone has appealed a second time in any litigation whatsoever, it shall not be lawful for him to use an appeal a third time in the same litigation upon the same heads, or to reconsider the sentences of the most excellent praetorian prefects. License is to be given to litigants, when an arbitrator has been assigned, to invoke the hearing of the very person who assigned him before joinder of issue, with a petition of this kind by no means obtaining the force of an appeal. § 1. But when a challenge has been made in a capital case or a case concerning civil status, those appealing ought to conduct their case not through procurators but in person.” Hence Pope Hadrian says, [in the chapters collected by him, c. 44]:

Whenever a challenge has been made in a capital case or a case concerning civil status, it is to be conducted not through procurators but by the parties themselves. GRATIAN. The period for pursuing an appeal is one year, or, if a just cause has intervened, two years. Hence it is read in the Authentic Constitutions, constitution II, collation V:

“If anyone appeals, a year shall be allowed, within which he shall pursue the litigation individually or jointly; or, if a just cause has intervened, another year is granted. When it has passed without the litigation being completed, the sentence remains. § 1. If the appellant is inactive, when one month remains of the two years it is lawful for the victor to enter so that the defendant may be sought; whether he has or has not been found, the victor shall present his allegations so that the sentence may either be confirmed or rescinded, with the absent party being condemned in every case for the expenses. If neither appears, the sentence remains after the second fatal period.” In constitution II, in collation IV: § 2. “But litigation which is expected to be brought into the consistory of the prince remains untouched without harm from delay until he himself causes it to be introduced and decided by the nobles according to custom.”

[GRATIAN.] But if the person who appealed, led by repentance, wishes to desist from the appeal, he is not prohibited, as the Emperors Arcadius and Honorius are read to have established in book VII of the Code, under the title On Appeals and Consultations, [law 28]: “If anyone has presented appellate petitions, let him know that he has license to change his decision and recover his petitions, lest the humanity of just repentance be cut off.” § 1. There are, moreover, times when it is not necessary to interpose an appeal. For in the same book and under the same title, [law 27], the same Emperors decreed: “Nominations made by petitions or edicts without a public council are not valid, and it is not necessary to appeal from them.”

Part VIII. § 2. Likewise, a final sentence which contains neither condemnation nor absolution is held as nothing. § 3. Likewise, a sentence delivered by a governor outside the customary order of judgments does not obtain the authority of a matter adjudged. § 4. Likewise, if a sentence has been delivered contrary to matters previously adjudged from which no appeal was made, it will not obtain the authority of a sentence, and therefore it is not necessary to appeal from it. § 5. Likewise, if a sentence is rendered contrary to written law—for example, when it is said that a deceased person was under fourteen years of age and lawfully made a testament—it obtains no force, nor is the aid of an appeal against it necessary. § 6. But if a sentence is spoken contrary to the right of a litigant—for example, when it is pronounced that a person under fourteen completed his fourteenth year and therefore lawfully made a testament—it is necessary to flee to the remedy of appeal. § 7. Likewise, if several judges have been assigned and it is alleged that only one of them pronounced sentence, there appears to be no necessity to appeal, since the sentence does not hold by law. § 8. Likewise, when judges can impose a fine according to a fixed basis and limit, if they have otherwise imposed a fine contrary to the measure established by law, that which appears to have been done contrary to law possesses no firmness and can be rescinded without appeal. § 9. It has also been decreed that venal sentences, which are delivered for a payment by corrupted judges, are invalid even without the aid of an interposed appeal. § 10. Likewise, if you have proved that because of the infirmity of your age you are incapable of the honor to which you were nominated, the unjust nomination will be removed without an appeal.

§ 11. There are also persons whose appeals are not received. For the appeal of one who, absent through contumacy, was condemned after he had been summoned to conduct the case once the business had first been examined summarily cannot be received. § 12. Likewise, let no homicide, poisoner, practitioner of magic, adulterer, or any of those who committed manifest violence be heard when appealing if he has been convicted by arguments, overcome by witnesses, and confessed the vice and crime even by his own voice. And this applies in notorious cases. § 13. But in hidden cases: if, after witnesses were produced, instruments presented, and other arguments furnished, sentence was delivered against him, and the person who was condemned either did not confess by his own voice at all or said something against himself after being terrified by fear of tortures, license to appeal is not denied him. § 14. Furthermore, an appeal from the sentence of his own judge shall be granted to no official, except only in a business which he perhaps began before his own judge on a civil basis concerning his patrimony. § 15. Likewise, whenever satisfaction of a fiscal account is demanded, a tax is exacted, or repayment of a public or even private debt which is evident and proved is demanded, judicial rigor is necessarily exercised against the contumacious person with appeal excluded. § 16. It is not possible to appeal from the execution of a sentence, unless perhaps the executor of the sentence exceeds the measure of the judgment. § 17. Likewise, if anyone has dared to appeal lest the will of a deceased person written in a testament be disclosed or lest those who have become known as written heirs be sent into possession, and the person who has cognizance of the matter has received the appeal, both the judge who so sluggishly showed connivance and the litigant who so inopportunely appealed shall be fined twenty pounds of silver. § 18. Likewise, if a case is stated concerning possession and its momentary state, which sentence is called interlocutory, even if an appeal has been interposed, the delivered sentence nevertheless shall take effect. § 19. Sometimes several persons together receive one and the same condemnation, and the diversity of deeds admits no separation. In that case, if all have appealed and, when one of them conducts the case, their appeal has been pronounced just, the benefit of the victory will also pertain to the others. But if only one has appealed and his appeal is pronounced just, it also benefits the person who did not appeal. § 20. But if one person has obtained restoration against a sentence by the aid of his age, this rescript does not benefit an adult who did not appeal by his own right. § 21. It appears, however, that not only has the necessity of receiving an appeal been imposed upon judges, but spaces of thirty days from the day of sentence have also been defined, within which it is proper that the record, together with the report, be furnished to the litigants. § 22. Similarly, an arbitrator is compelled to receive an appeal and give a report if he was delegated. § 23. Litigants, moreover, have the opportunity to appeal immediately by voice, even without petitions written out, when the matter adjudged demands it, both in civil and in criminal cases. § 24. No recourse can be made from the person who takes cognizance of the appeal to the judge from whom the appeal was made. Therefore, let them understand that the occasion for remitting litigants to the provinces has been taken away from them and completely excluded, since concerning every case in which an appeal has been interposed it is lawful to pronounce only that the appeal is either unjust or just. § 25. You will find all these things in book VII of the Code, from the title On Appeals and Consultations as far as the title It Shall Not Be Lawful in One and the Same Case.