Whether It Is Lawful for the Accused to Escape Judgment by Appealing?
Objection 1: It would seem unlawful for the accused to escape
judgment by appealing. The Apostle says (Rom. 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.
Obj. 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.
Obj. 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 (A. 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 Obj. 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 Rom. 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 Decret. 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 Obj. 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 Obj. 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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