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Objection 1: It would seem unlawful for the accused to escape
judgment by appealing. The Apostle says (Rm. 13:1): "Let
every soul be subject to the higher powers." Now the accused by
appealing refuses to be subject to a higher power, viz. the judge.
Therefore he commits a sin.
Objection 2: Further, ordinary authority is more binding than that
which we choose for ourselves. Now according to the Decretals
(II, qu. vi, cap. A judicibus) it is unlawful to appeal from
the judges chosen by common consent. Much less therefore is it lawful
to appeal from ordinary judges.
Objection 3: Further, whatever is lawful once is always lawful.
But it is not lawful to appeal after the tenth day [Can.
Anteriorum, caus. ii, qu. 6], nor a third time on the same point
[Can. Si autem, caus. ii, qu. 6]. Therefore it would seem
that an appeal is unlawful in itself.
On the contrary, Paul appealed to Caesar (Acts 25).
I answer that, There are two motives for which a man appeals. First
through confidence in the justice of his cause, seeing that he is
unjustly oppressed by the judge, and then it is lawful for him to
appeal, because this is a prudent means of escape. Hence it is laid
down (Decret. II, qu. vi, can. Omnis oppressus): "All
those who are oppressed are free, if they so wish, to appeal to the
judgment of the priests, and no man may stand in their way."
Secondly, a man appeals in order to cause a delay, lest a just
sentence be pronounced against him. This is to defend oneself
calumniously, and is unlawful as stated above (Article 2). For he
inflicts an injury both on the judge, whom he hinders in the exercise
of his office, and on his adversary, whose justice he disturbs as far
as he is able. Hence it is laid down (II, qu. vi, can. Omnino
puniendus): "Without doubt a man should be punished if his appeal be
declared unjust."
Reply to Objection 1: A man should submit to the lower authority in
so far as the latter observes the order of the higher authority. If
the lower authority departs from the order of the higher, we ought not
to submit to it, for instance "if the proconsul order one thing and
the emperor another," according to a gloss on Rm. 13:2. Now
when a judge oppresses anyone unjustly, in this respect he departs from
the order of the higher authority, whereby he is obliged to judge
justly. Hence it is lawful for a man who is oppressed unjustly, to
have recourse to the authority of the higher power, by appealing either
before or after sentence has been pronounced. And since it is to be
presumed that there is no rectitude where true faith is lacking, it is
unlawful for a Catholic to appeal to an unbelieving judge, according
to Decretals II, qu. vi, can. Catholicus: "The Catholic who
appeals to the decision of a judge of another faith shall be
excommunicated, whether his case be just or unjust." Hence the
Apostle also rebuked those who went to law before unbelievers (1
Cor. 6:6).
Reply to Objection 2: It is due to a man's own fault or neglect
that, of his own accord, he submits to the judgment of one in whose
justice he has no confidence. Moreover it would seem to point to
levity of mind for a man not to abide by what he has once approved of.
Hence it is with reason that the law refuses us the faculty of
appealing from the decision of judges of our own choice, who have no
power save by virtue of the consent of the litigants. On the other
hand the authority of an ordinary judge depends, not on the consent of
those who are subject to his judgment, but on the authority of the king
or prince who appointed him. Hence, as a remedy against his unjust
oppression, the law allows one to have recourse to appeal, so that
even if the judge be at the same time ordinary and chosen by the
litigants, it is lawful to appeal from his decision, since seemingly
his ordinary authority occasioned his being chosen as arbitrator. Nor
is it to be imputed as a fault to the man who consented to his being
arbitrator, without adverting to the fact that he was appointed
ordinary judge by the prince.
Reply to Objection 3: The equity of the law so guards the interests
of the one party that the other is not oppressed. Thus it allows ten
days for appeal to be made, this being considered sufficient time for
deliberating on the expediency of an appeal. If on the other hand
there were no fixed time limit for appealing, the certainty of judgment
would ever be in suspense, so that the other party would suffer an
injury. The reason why it is not allowed to appeal a third time on the
same point, is that it is not probable that the judges would fail to
judge justly so many times.
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