Ulpianus, On Appeals, Book I. It is lawful, at present, when anyone has extraordinary jurisdiction of a crime, to inflict any sentence which he may desire, either a more severe or a lighter one; provided that, in neither instance, he exceeds the bounds of reason.

Ulpianus, On Appeals, Book I. There is no one who is not aware how frequently appeals are employed, and how necessary they are to correct the injustice or the ignorance of judges; although sometimes sentences which have been properly imposed are changed for the worse, as he who renders the last judgment does not, for this reason, render a better one. 1The question arose whether an appeal could be taken from a Rescript of the Emperor, when the Governor of a province, or anyone else, asked his advice, and the Rescript was issued by way of answer. It was also asked whether the right of appeal remained. What should be done if the Governor, when asking advice, had made a false statement? There is a Rescript of the Divine Pius on this point, addressed to the Community of the Thracians, by which it is shown that the right to appeal continues to exist. The words of the Rescript are as follows: “If anyone should write to us and we should state anything to him in a Rescript by way of reply, he will be permitted to appeal from our decision. For if it should be shown that what had been written to us was either untrue, or was misrepresented, no decision will be considered to have been rendered by us; and any statement made to us will be considered as not having been made before the answer deciding against it was written.” 2In consequence of this, it is held to have been decided that an appeal should not be taken after the consultation of the judge, if he happens to have rendered an interlocutory decree setting forth that he will consult the Emperor, since the party can take an appeal after the Rescript has been issued. 3When anyone makes a mistake in an appeal, for instance, when he should appeal to one judge, and he appeals to another, let us see whether his mistake will prejudice him. And, indeed, if he ought to appeal to a superior judge, and errs by appealing to one of inferior jurisdiction, the mistake will prejudice him. If, however, he appeals to a superior judge, his mistake will not be to his disadvantage, and this rule is contained in several constitutions. Hence when anyone has accepted a judge appointed by the Consuls under a Rescript of the Emperor, and afterwards appeals to the Prefect of the City, relief is given him for his mistake, under a Rescript of the Divine Brothers, the words of which are as follows: “As you say that, through mistake, you have appealed from the judge, whom you accepted under the terms of our Rescript from the eminent Consuls, to our friend, Julius Rusticus, the Prefect of the City, the said eminent Consuls shall take cognizance of the case, just as if the appeal had been made to them.” If, then, anyone should appeal to a judge of equal or superior jurisdiction, or to one instead of another, his mistake will not prejudice him; but if he appeals to a judge of inferior jurisdiction, it will prejudice him. 4The document presented by the appellants ought to be drawn up in such a way as to contain the names of the parties by whom it has been filed; that is to say, the names of those who appeal, and state against whom they appeal, and from what decision.

Ulpianus, On Appeals, Book I. When anyone does not mention in his petition against what adversary he appealed, I am aware that it has been asked whether he can be barred by an exception. I do not think that he can be barred in this manner. 1Where the appellant had several adversaries, and the names of some of them were included in his appeal, and those of others were not, the question arose whether he could be barred by an exception on the ground that, as their names were not included, he had, as it were, acquiesced in the decision, so far as they were concerned. As the cause of all is the same, I think that he should not be barred by an exception. 2It is clear that if there are several persons who have been convicted, and the names of some of them are included in the appeal, and those of the others are not, they only will be considered to have appealed whose names are mentioned in the petition. 3But what if a certain ground of appeal is mentioned? Can the appellant abandon it, and state another V Or, indeed, will he be bound, as by a certain formula? I think that when a party has once appealed, he should be permitted to give even another cause for doing so, and to prosecute it in every way that he can.

Ulpianus, On the Edict, Book I. Inquiry should be made from whom it is not lawful to appeal. 1And, indeed, it would be foolish to warn anyone that it is not lawful to appeal from the Emperor, since he himself is the one to whom the appeal is made. 2It should be remembered that an appeal cannot be taken from the Senate to the Emperor; and this was established by an address of the Divine Hadrian. 3If anyone, before judgment has been rendered, should assert that he will not appeal from the decision of the judge, he unquestionably loses the benefit of the appeal. 4Sometimes the Emperor appoints a judge with the understanding that an appeal cannot be taken from his decision; for I know that judges have very frequently been appointed in this manner by the Divine Marcus. Let us see whether anyone else can appoint a judge in this way. I do not think that he can do so.

Ulpianus, On Appeals, Book I. When it is said that an appeal is taken from the judge who rendered the decision, this must be understood to mean that one can also be taken from his successor. Hence, where the Prefect of the City, or the Prætorian Prefect, renders a decision, an appeal should be taken from him who rendered it. 1An appeal is not taken to a person who has delegated his authority; for, generally speaking, it ought to be taken from him to whom the authority was delegated to him to whom the appeals would be taken from the official who delegated the authority.

Ulpianus, On Appeals, Book I. When the Governor of a province notifies someone that he shall be deported to an island, and writes to the Emperor in order that he may be deported, let us see when an appeal should be taken, whether at the time the Governor wrote to the Emperor, or when the latter wrote to him. I think that the appeal should be taken when the Governor orders the defendant to be taken into custody, and after he has rendered his decision that the Emperor shall be written to, in order that the defendant may be deported. It is, however, to be feared that it will be too late to appeal after the Emperor has assigned him an island, for the decision of the Governor having been confirmed, it is then customary to assign an island as the place of deportation. Again, it should be apprehended that if the Governor made false statements to the Emperor concerning the person whom he was attempting to have deported, the way of appeal will be closed to him. What then should be done? It can properly be decided in compliance with the suggestions of humanity that, in either case, an appeal will not be taken in vain, because the defendant does not appeal from the Emperor, but against the duplicity of the judge. This rule should also be adopted in the case of a decurion, whom the Governor ought not to permit himself to punish, but should confine in prison, and write to the Emperor with reference to his punishment. 1When anyone is appointed a guardian, either by will or by someone who has the right of appointment, it will not be necessary for him to appeal (as this rule was established by the Divine Marcus), but he should offer his excuse within the prescribed time; and if it is rejected, he then should appeal, otherwise he will do so in vain. 2The case is different with those who are called to some office of honor when they allege that they have an excuse; for they cannot allege their reasons for immunity unless they interpose an appeal. 3Governors usually are accustomed to send the name of a man to the order to which he belongs, asking it to elect Gaius Seius magistrate, or to confer upon him some other honor or office. Therefore, should an appeal be taken after the order has rendered its decision, or must it be taken on the submission of the name by the Governor? The better opinion is, that the appeal should be taken at the time when the order renders its decision; for the Governor appears rather to have given advice that someone should be appointed than to have, himself, made the nomination. Finally, the appeal should be taken to him, and not from him. 4But when the Governor himself is a member of the order (as sometimes happens), at the time when the person was appointed by it, an appeal can be taken to the Governor, as from the order, and not from the Governor himself. 5Ad Dig. 49,4,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Note 12.The term of two or three days should be computed from the time when the decision was rendered, for the purpose of taking an appeal. What, however, must be done if the decision was rendered under a condition? Should we compute the time for taking the appeal from the day of the decision, or from the day on which the condition of the decision was complied with? It is clear that the decision ought not to be rendered under a condition, but if this is done, what course must be pursued? It is proper that the time for appeal should immediately begin to be computed. 6Ad Dig. 49,4,1,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Note 12.What has been ordered with reference to decisions, namely, that an appeal should be taken upon the second or third day, should also be observed in other cases in which a decision has, indeed, not been rendered, but where, as was stated above, a party can appeal. 7An Address of the Divine Marcus prescribes that the days upon which a party can appeal should, to a certain extent, be available ones, if the person from whom the appeal is taken should not be present, so that the petition can be presented to him; for the Rescript says: “That day shall be observed upon which he shall first be able to appear.” Therefore, if after the appeal, the judge who rendered the decision should not be present, as he is accustomed to be, it must be said that the appellant is in nowise prejudiced; for he can appeal the first time that he has access to the judge. Hence, if the judge should conceal himself, the litigant should be entitled to the same relief. 8But what if the lateness of the hour caused him to retire, the judgment having been pronounced during the latter part of the day? In this instance, the judge will not appear to have withdrawn. 9We understand the opportunity of access to be when the judge appears in public. If, however, he has not done so, will the party be to blame for not having gone to his house; or not to have approached him in his garden; or even at any house in the country? The better opinion is that he should not be liable to censure. Therefore, if he did not have access to him in public, it will be better to hold that he did not have access to him at all. 10When, indeed, anyone has no opportunity to obtain access to the magistrate from whom he appeals, but has access to the appellee, let us see whether an exception can be pleaded against him, because he did not apply to the latter. The rule at present is, that if he had the opportunity to apply to either of them, there will be ground for an exception. 11The term of two days is understood to have reference to one’s own case. But how shall we distinguish one’s own case from that of another? It is clear that one’s own case is that whose profit or loss affects a litigant personally. 12Ad Dig. 49,4,1,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 103, Note 12.Therefore an attorney, unless he is acting in his own behalf, will be entitled to the term of three days. When he is appointed to conduct his own case, the better opinion is that he will only be entitled to two days. But if he is acting partly in his own name, and partly in that of another, it may be doubted whether he will be entitled to two or three days. The better opinion is that he will be entitled to two days, when he acts in his own name, and to three, when he acts in the name of another. 13Guardians, as well as the defenders of public matters, and the curators of minors or insane persons, should have three days, for the reason that they appeal in the name of others. From this it appears that a defender can appeal upon a third day, provided he is conducting the case as a defender, and not in his own name; for as he is conducting it in behalf of another, he can appeal on the third day. 14Where anyone who has accused a guardian of being suspicious loses his case, Julianus, in the Fortieth Book of the Digest, states that he can appeal within three days, just as the defender of a minor. 15Where judgment has been rendered against an absent person, the term of two or three days must be computed from the date when he learned of the judgment, and not from the day on which it was rendered. When, however, it is said that an absent party can appeal from the day on which he learns of the judgment, this must be understood to mean if he was not defended in the case by an attorney; for if the latter did not appeal, it will be difficult for the former to obtain a hearing.