[ULPIANUS libro primo de appellationibus. ] §49.1.1.prAppellandi usus quam sit frequens quamque necessarius, nemo est qui nesciat, quippe cum iniquitatem iudicantium uel imperitiam recorrigat: licet nonnumquam bene latas sententias in peius reformet, neque enim utique melius pronuntiat qui nouissimus sententiam laturus est.
[ULPIANUS, from the first book on appeals.] No one is ignorant of how frequent and necessary the practice of appeal is, since it corrects the injustice or lack of skill of judges; although sometimes it alters for the worse decisions that were well rendered, for he who is to render the final judgment does not in every case pronounce a better one.
§49.1.1.1Quaesitum est, an aduersus rescriptum principis prouocari possit, forte si praeses prouinciae uel quis alius consuluerit et ad consultationem eius fuerit rescriptum: est enim quaesitum, an appellandi ius supersit.
The question was raised whether an appeal can be made against an imperial rescript, for instance, if a provincial governor or someone else has consulted the emperor and a rescript has been issued in response to his consultation; for it was asked whether the right of appeal remains.
quid enim, si in consulendo mentitus est? de qua re extat rescriptum diui Pii πρὸς τὸ κοινὸν τῶν Θρᾳκῶν, quo ostenditur prouocari oportere.
For what if he lied in his consultation? On this matter there exists a rescript of the deified Pius to the Community of the Thracians, by which it is shown that an appeal ought to be allowed.
uerba rescripti ita se habent: "Ἐὰν ἐπιστείλῃ τις ἡμῖν ἃ διὰ καὶ ἀντιγράψωμεν ἡμεῖς ὁτιοῦν, ὑπάρξει τοῖς βουλομένοις ἐπικαλεῖσθαι πρὸς τὴν ἀπόφασιν.
The words of the rescript are as follows: "If anyone reports to us, and we write back in response any reply whatsoever, those who wish to appeal against the decision shall have the right to do so.
εἰ γὰρ διδάξαιεν ἢ ψευδῶς ἢ οὐχ οὕτως ἔχειν τὰ ἐπεσταλμένα, οὐδὲν ὑφ' ἡμῶν εἶναι δόξῃ προδιεγνωσμένον, τῶν ὡς ἑτέρως ἔχουσιν τοῖς γραφεῖσιν ἀντεπεσταλκότων". §49.1.1.2Huic consequenter uidetur rescriptum a consultatione iudicis non esse appellandum, si quis forte interlocutus fuit principem se consultaturum, cum possit post rescriptum prouocare.
For if they should show that the reported facts are either false or not as stated, nothing shall be deemed to have been prejudged by us, who wrote back in response to facts which were otherwise than what was written." Consequently, it appears that no appeal lies from the consultation of a judge, even if he should happen to have declared that he will consult the emperor, since one can appeal after the rescript has been issued.
§49.1.1.3Si quis in appellatione errauerit, ut puta cum alium appellare deberet, alium appellauerit, uidendum, an error ei nihil offuit.
If anyone makes a mistake in an appeal, as for example when he ought to have appealed to one person but appealed to another, we must see whether the mistake did him no harm.
et si quidem, cum maiorem iudicem appellare deberet, ita errauit, ut minorem appellet, error ei nocebit: si uero maiorem iudicem prouocauit, error ei nihil oberit.
And indeed, if, when he ought to have appealed to a higher judge, he made such a mistake as to appeal to a lower one, his mistake will be prejudicial to him; but if he appealed to a higher judge, the mistake will do him no harm.
et ita multis constitutionibus continetur.
This is contained in many constitutions.
denique cum quidam iudicem ex rescripto principis a consulibus accepisset et praefectum urbi appellasset, errori eius subuentum est rescripto diuorum fratrum, cuius uerba haec sunt: 'Cum per errorem factum dicas, uti a iudice, quem ex rescripto nostro ab amplissimis consulibus acceperas, ad Iunium Rusticum amicum nostrum praefectum urbi prouocares, consules amplissimi perinde cognoscant, atque si ad ipsos facta esset prouocatio'. si quis ergo uel parem uel maiorem iudicem appellauerit, alium tamen pro alio, in ea causa est, ut error ei non noceat: sed si minorem, nocebit.
Finally, when someone had received a judge from the consuls by an imperial rescript and had appealed to the prefect of the city, his mistake was remedied by a rescript of the deified brothers, the words of which are as follows: "Since you say that it happened through an error that you appealed from the judge, whom you had received from the most illustrious consuls on our rescript, to our friend Junius Rusticus, prefect of the city, let the most illustrious consuls hear the case just as if the appeal had been made to themselves." Therefore, if anyone appeals to an equal or higher judge, but mistakes one person for another, he is in such a position that the error does not harm him; but if he appeals to a lower judge, it will harm him.
§49.1.1.4Libelli qui dantur appellatorii ita sunt concipiendi, ut habeant scriptum et a quo dati sint, hoc est qui appellet, et aduersus quem et a qua sententia.
Petitions of appeal which are presented must be so drafted as to state in writing by whom they are presented (that is, who is appealing), against whom, and from what judgment.