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107

APPELLATIO.

The appeal from the demotae would occur, when a person hitherto deemed one of their members, had heen declared by them to be an intruder and no genuine citizen. If the appeal were made, the demotae appeared by their advocate as plaintiff, and the result was the restitution of the franchise, or thenceforward the slavery of the defendant.

It will have been observed, that in the three last cases, the appeal was made from few or single or local judges to the heliasts, who were con­sidered the representatives of the people or country. With respect to the proceedings, no new documents seem to have been added to the contents of the echinus upon an appeal ; but the anacrisis would be confined merely to an examination, as far as was necessary, of those documents which had been already put in by the litigants.

There is some obscurity respecting the two next kinds of appeal that are noticed by Pollux. It is conjectured by Schomann (Att. Process, p. 771) that the appeal from the senate to the people refers to cases which the former were for various reasons disinclined to decide, and by Plainer (vol. i. p. 427), that it occurred when the senate was accused of having exceeded its powers.

Upon the appeal from the assembly to court, there is also a difference of opinion between the two last-mentioned critics, Schomann maintaining (AH. Process, p. 771) that the words of Pollux are to be applied to a voluntary reference of a cause by the assembly to the dicasts, and Platner suggesting the possible case of one that incurred a praejudicium of the assembly against him (jrpoSoX^, Karaxzipo-Tovia) calling upon a court (Si/catrr^pioz/) to give him the opportunity of vindicating himself from a charge that his antagonist declined to follow up. Platner also supposes the case of a magistrate sum­marily deposed by the assembly, and demanding to prove his innocence before the heliasts. [ J.S.M.]

2. roman. The word appellatio, and the corresponding verb appellare, are used in the early Roman writers to express the application of an individual to a magistrate, and particularly to u, tribune, in order to protect himself from some wrong inflicted, or threatened to be inflicted. It is distinguished from provocatio, which in the early writers is used to signify an appeal to the populus in a matter affecting life. It would seem that the provocatio was an ancient right of the Roman citizens. The surviving Horatius, who murdered his sister, appealed from the duumviri to the populus. (Liv. i. 26.) The decemviri took away the provocatio ; but it was restored by a lex con-sularis de provocatione, and it was at the same time enacted that in future no magistrate should be made from whom there should be no appeal. On this Livy (iii. 55) remarks, that the plebes were now protected by the provocatio and the tribunicium auocilium; this latter term has reference to the appellatio properly so called (iii. 13. 56). Appius (Liv. iii. 56) applied (appellamf) to the tribunes ; and when this produced no effect, and .he was arrested by a viator, he appealed (provo-cavit}. Cicero (De Orat. ii. 48) appears to allude to the re-establishment of the provocatio, which is mentioned by Livy (iii. 55). The complete phrase to express the provocatio is provocare ad populum ; and the phrase which expresses the appellatio, is appellare, and in the later writers appellare ad. It appears that a person might appellare from one magistrate to another of equal rank ; and, of course.

APPELLATIO.

from an inferior to a superior magistrate ; and from one tribune to another.

The appeals which have here been referred to, were limited to criminal matters. In civil suits there was not, and could not be any appeal under the re­public, for the purpose of revising and altering a decision, for each magistrate had power to decide finally within the limits of his jurisdiction : and as a general rule, the sentence of a judex could not be reversed by the magistrate who appointed the judex. The only mode in which a person could have relief, in such cases, was by the intercessio of a superior magistrate, or the appellatio of the tribunes which would be in the nature of a stay of execution. The In integram restitutio also existed under the republic.

When the supreme power became vested in the emperors, the terms provocatio and appellatio lost their original signification. Thus Gellius (iv. 14) has used provocatio for appellatio. In the Digest (49. tit. 1. De Appellationibus) provocatio and ap­pellatio are used indiscriminately, to express what we call an appeal in civil matters: but provocatio seems so far to have retained its original meaning as to be the only term used for an appeal in criminal matters. The emperor centred in him­self both the power of the populus and the veto of the tribunes; but the appeal to him was properly in the last resort. Augustus (Sueton. Octavianus, 33) established a system of regular appeals from litigant parties at Rome to the Praetor Urbanus, as in the provinces to the governors. Nero (Sueton. Nero, 17) enacted that, all appeals from privati (Tacit. Amial. xiv. 2$)judices should be to the senate. Appellatio among the later Roman jurists, then, sig­nifies an application for redress from the decision of an inferior to a superior, on the ground of wrong decision, or other sufficient ground. According to Ulpian (Dig. 49. tit. 1), appeals were common among the Romans, " on account of the injustice or ignorance of those who had to decide (judi* cantes), though sometimes an appeal alters a pro­per decision, as it is not a necessary consequence that he who gives the last gives also the best deci­sion." This remark must be taken in connection with the Roman system of procedure, by which such matters were referred to a judex for his deci­sion, after the pleadings had brought the matter in dispute to an issue. From the emperor himself there was, of course, no appeal; and by a constitu­tion of Hadrian, there was no appeal from the senate to the emperor. The emperor, in appoint­ing a judex, might exclude all appeal and make the decision of the judex final. M. Aurelius by a rescript (Dig. 49. tit. 1. s. 1, 21) directed an ap­peal from the judgment of a judex to the magis­trate who had appointed the judex. The appeal, or libdlus appellatorius, showed who was the ap­pellant, against whom the appeal was, and what was the judgment appealed from.

Appellatio also means to summon a party before a judex, or to call upon him to perform something that he has undertaken to do. (Cic. Ad Att. i. 8.) The debtor who was summoned (appellatus} by his creditor, and obeyed the summons, was said respondere.

The system of appellationes as established under the empire was of very extensive application, and was not limited to matters of criminal and civil procedure. A person might appeal in matters that related to the fiscus, to penalties and fines, and

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