[ULPIANUS libro primo de appellationibus. ] §49.4.1.prSi quidem in insulam deportandum adnotauerit praeses prouinciae et imperatori scripserit, ut deportetur, uideamus, quando sit prouocandum, utrum cum imperator scripserit an cum ei scribitur? et putem tunc esse appellandum, cum recipi eum praeses iubet sententia prolata imperatori scribendum, ut deportetur.
[ULPIAN, On Appeals, Book 1.] If indeed a governor of a province has noted down that someone is to be deported to an island and has written to the emperor that he should be deported, let us see when the appeal should be made: whether when the emperor has written back, or when the letter is written to him? And I should think that the appeal must be made at the time when the governor, after pronouncing sentence, orders him to be taken into custody, stating that a letter must be written to the emperor for his deportation.
ceterum uerendum est, ne sero sit, ut tunc prouocetur, cum imperator insulam ei adsignauerit: comprobata enim sententia praesidis tunc solet insulam adsignare.
But on the other hand, it is to be feared lest it be too late to appeal when the emperor has already assigned the island to him; for it is only after approving the sentence of the governor that the emperor is accustomed to assign the island.
rursus illud uerendum est, si mendaciis apud principem onerauit eum, quem deportandum laborabat, intercludi illi uiam prouocandi.
Again, there is this fear, that if the governor has burdened the person whom he was striving to deport with falsehoods before the emperor, the way of appeal may be blocked for him.
quid ergo est? recte dicetur humanitate suggerente, ut et hoc et illo tempore non frustra prouocaretur, quia non aduersus principem, sed aduersus iudicis calliditatem prouocauit.
What then is the case? It will be rightly said, at the suggestion of humanity, that an appeal would not be made in vain both at the former and at the latter time, because he has appealed not against the emperor, but against the craftiness of the judge.
simili modo et in decurione erit probandum, quem punire sibi praeses permittere non debet, sed recipere eum in carcerem et principi scribere de poena eius.
In like manner, this must also be approved in the case of a decurion, whom the governor ought not to permit himself to punish, but must receive him into prison and write to the emperor concerning his punishment.
§49.4.1.1Si quis tutor datus fuerit uel testamento uel a quo alio, qui ius dandi habet, non oportet eum prouocare (hoc enim diuus Marcus effecit), sed intra tempora praestituta excusationem allegandam habet et, si fuerit repulsa, tunc demum appellare debebit: ceterum ante frustra appellatur.
If anyone has been appointed a tutor either by testament or by anyone else who has the right of appointment, he ought not to appeal (for the deified Marcus brought this about), but he must allege his excuse within the prescribed times, and if it is rejected, only then will he have to appeal; otherwise, an appeal before that time is made in vain.
§49.4.1.2Alia causa est eorum, qui ad aliquod munus uel honorem uocantur, cum dicant se habere excusationem: nam non aliter allegare possunt causas immunitatis suae, quam si appellationem interposuerint.
The case of those who are called to some duty or office is different when they say they have an excuse; for they cannot allege the grounds of their immunity in any other way than by interposing an appeal.
§49.4.1.3Solent plerumque praesides remittere ad ordinem nominatum ut Gaium Seium creent magistratum uel alius quis honor uel munus in eum conferatur.
Governors are mostly accustomed to refer a named person back to the local council so that they may elect Gaius Seius as a magistrate, or so that some other office or duty may be conferred upon him.
utrum igitur tunc appellandum est, cum ordo decretum interposuerit, an uero a remissione, quam praeses fecerit, appellatio sit interponenda? et magis est, ut tunc sit appellandum, cum ordo decreuerit: magis enim consilium dedisse praeses uidetur, quis sit creandus, quam ipse constituisse: denique ipse erit appellandus, non ab eo prouocandum.
Whether, therefore, the appeal must be made when the council has interposed its decree, or indeed whether the appeal should be interposed against the referral made by the governor? And it is more correct that the appeal must be made when the council has decreed; for the governor seems rather to have given advice as to who should be elected than to have decided it himself; finally, he himself will be the one appealed to, not the one appealed from.
§49.4.1.4Sed et si praeses in ordine fuerit (ut fieri adsolet), cum ab ordine crearetur quis, ipse erit prouocandus, quasi ab ordine, non ab ipso fiat appellatio.
But even if the governor was present in the council (as is accustomed to happen) when someone was elected by the council, he himself will have to be appealed to, as if the appeal were made from the council, not from him.
§49.4.1.5Biduum uel triduum appellationis ex die sententiae latae computandum erit.
The period of two or three days for an appeal must be computed from the day the sentence was pronounced.
quid ergo, si sententia fuerit sub condicione dicta? utrum ex die sententiae tempus computamus ad appellandum an uero ex die, quo condicio sententiae extitit? sane quidem non est sub condicione sententia dicenda: sed si fuerit dicta, quid fiet? et est utile statim tempora ad appellandum computari debere.
What then if the sentence was pronounced under a condition? Do we compute the time for appealing from the day of the sentence, or indeed from the day on which the condition of the sentence was fulfilled? To be sure, a sentence ought not to be pronounced under a condition; but if it has been pronounced, what will happen? And it is practical that the times for appealing must be computed immediately.
§49.4.1.6Quod in sententiis praeceptum est, ut uel altera die uel tertia prouocetur, hoc etiam in ceteris obseruandum, ex quibus sententia quidem non profertur, appellari tamen oportere et posse supra relatum est.
What is prescribed in the case of sentences, that the appeal must be made either on the next day or on the third day, must also be observed in other matters from which, though a sentence is indeed not pronounced, it has been reported above that an appeal ought to be and can be made.