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date: 02 December 2020

Provocatio was a method for appealing the decision of a Roman magistrate. Provocatio could occur after a normal trial had been conducted in front of a magistrate with imperium. After the final judgement, the defendant could call out “provoco.” The act of provocatio called upon the protection of the tribuni plebis, who transferred the power to adjudicate to the Roman people (iudicium populi). The people could then confirm or reject the magistrate’s sentence.

Not all judgements were subject to provocatio; it only applied to the power of coercitio of higher magistrates (consuls and praetors). Sentences meted by the quaestors were excluded. The judgements of the pontifex maximus were also excluded, although the fines he imposed could be appealed. In fact, provocatio is mentioned in the sources only for political crimes, such as perduellio. The idea that the iudicium populi was part of every trial, first suggested by Mommsen and still sometimes repeated, is therefore incorrect.

The Three Valerian Laws

Provocatio in the Roman Republic developed gradually, under the influence of several laws. According to the literary tradition, three Valerian laws regulated provocatio. The first, dated to 509 BCE, was proposed by the consul Publius Valerius Publicola. Cicero (Rep., 2.54) states that this law meant a magistrate could not kill or flog a Roman citizen if no provocatio had been applied. Then, the laws of the Twelve Tables of 451 stated that only a maximus comitiatus (highest assembly)—probably the comitia centuriata—could pronounce the death penalty, and that all judgements should be subject to appeal. In 449, a lex Valeria Horatia further specified the right of appeal. According to Livy (3.55.14), “anyone who should create a magistrate from whom there was no appeal, should be scourged and beheaded” (quique magistratum sine provocatione creasset, tergo ac capite puniretur). At the same time, the sacrosanctitas of the tribuni plebis was officially recognized, indicating the close relationship between provocatio and the tribunes.

In 300 BCE, a lex Valeria de provocatione was proposed by a Marcus Valerius, perhaps M. Valerius Corvus, consul for the first time in 348, his son M. Valerius Maximus, or even a grandson. This law “forbade anyone who had exercised his right of appeal to be scourged or beheaded, but if any one transgressed its provisions it added no penalty, but simply declared such a transgression to be a wicked act (improbe factum)” (Livy, 10.9). Thus, magistrates who acted contrary to the law were not subject to physical punishment, as under the earlier lex Valeria Horatia. Still, if a magistrate’s actions were labelled improbe factum, this may have entailed heavy consequences, such as infamia.

The Development of the Tribunes’ Power

Many scholars, such as Magdelain, Martin, and Staveley, maintain that the first two Valerian laws, dated in the sources to 509 and 449, were retrojections by annalists. They assume that the first and only lex Valeria on provocatio was that of 300 BCE. Others, such as Bauman, Develin, and Rampelberg, believe that one or both of the earlier laws were real, and that the law of 300 was a restatement or adaptation of the earlier law. But even if the first two leges Valeriae are inauthentic, this does not mean that some form of provocatio did not exist before 300 BCE. In fact, as Humbert explains, a clear development in the authority of the people is visible between 509 and 300, and was reflected in the several laws passed over the centuries. This development was closely connected to the increasing power of the tribuni plebis.

The exact content of the laws, as described in the sources, is indeed most likely incorrect. The views of Livy and Cicero, scholars’ most important sources, were influenced by events in the later Republican period, in which provocatio served very different aims than in earlier periods. Nevertheless, provocatio did exist before 300. The lex Valeria of 300 should be seen as the culmination of a long development rather than the starting point of the history of provocatio.

It is conceivable that the possibility of an appeal was introduced in 509 BCE. The consul, however, could still refuse to allow the appeal. Next, the Twelve Tables gave the power of judgement over the life of citizens to the people. However, before the lex Valeria of 300 BCE, citizens had no automatic right to provocatio. They could appeal to the plebs, but if none of the tribuni could be persuaded to take up their case, the case was not referred to the people and the sentence was carried out. This meant that the magistrates’ coercitio was still unlimited by law, in the sense that the magistrates had every right to impose a death sentence. At the same time, the ius auxilii of the tribunes was equally unlimited in its application; if one of them submitted the case to the iudicium populi, no magistrate could interfere.

The Significance of the lex Valeria de provocatione

The most important innovation of the law of 300 BCE was that it compelled the magistrate to allow provocatio, even without the intercession of a tribune. This change meant that the role of the tribunes became less important; however, this fits the general historical development of the period. Because elite plebeians, such as the tribunes, had gradually become very similar in economic and social status to the patricians, they were less eager to protect the interests of the plebs. At the same time, from the late 4th century onwards, more and more extralegal quaestiones were held. These were not subject to provocatio, and so the procedure’s importance declined. It is sometimes argued that provocatio lost its importance after 300, because everyone was now entitled to it. However, the law only stated that everyone was entitled to ask for a iudicium populi; obviously not all appellants would be acquitted.

Provocatio in the Late Republic

In the early 2nd century, a lex or leges Porciae made further changes to the judicial procedure. According to Livy, “it imposed the severest penalty (gravis poena) on any one who killed or scourged a Roman citizen” (10.9). Gravis poena in this case may even refer to the death penalty, although the sources record no convictions for this crime. Possibly the leges Porciae enforced the use of provocatio, making it illegal to put any citizen to death without a iudicium populi. It is possible that provocatio was now extended to the military sphere, whereas until this time the power of the general had been unlimited. The lex Sempronia de capite civis of 132 BCE forbade the death penalty altogether without a iudicium populi. The continued relevance of provocatio is shown by the lex Acilia repetundarum of 123 BCE, when it was offered as a reward for those who successfully prosecuted a Roman magistrate. However, the power of the Senate was increased in 120s BCE by the Senatus Consultum Ultimum, which gave the Senate unlimited power to execute citizens who were seen as a threat to the state. The establishment of quaestiones perpetuae at this time further weakened the importance of provocatio, since these courts’ judgements were not subject to appeal.

Bibliography

Cicero, De Republica, 2.53–55.

Cicero, De domo sua, 45.

Cicero, De legibus, 3.6, 3.27, 3.44.

Dionysius Halicarnassensis, Antiquitates romanae, 5.19.2–3.

Livy, Ab urbe condita, 2.8, 2.52, 3.55, 3.57, 6.20, 10.9.

Valerius Maximus, 4.1.1.

Twelve Tables, 9.1, 9.4.

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