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p107 Appellatio

The Roman section only (pp107‑108) of an article on pp106‑108 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

APPELLATIO

[. . .]

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 a 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 consularis 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 auxilium; this latter term has reference to the appellatio properly so called (Liv. III.13, 56). Appius (Liv. III.56) applied (appellavit) to the tribunes; and when this produced no effect, and he was arrested by a viator, he appealed (provocavit). Cicero (De Orat. II.48) appears to allude to the re-establishment of the provocatio, which is mentioned by Livy (Liv. 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, 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 integrum 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 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. Annal. XIV.28) 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 1), appeals were common among the Romans, "on account of the injustice or ignorance of those who had to decide (judicantes), 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 s1, 21) directed an appeal from the judgment of a judex to the magistrate who had appointed the judex. The appeal, or libellus 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 p108to civil offices and burdens. This subject is fully treated by Hollweg, Handbuch des Civilprozesses, p350.

[G.L.]


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