Provocatio was an appeal made by a citizen against the exercise of summary criminal jurisdiction by a Roman magistrate. It was derived from the verb for "calling out", either to citizens to hear the appeal or from the magistrate to summon citizens therefor.[1]
Meaning
editThe right of provocatio was seen as one of the principal rights of a Roman citizen. It gave a theoretical guarantee against execution without due process. After the passage of the lex Porcia (proposed by Cato the Elder), this right extended also to flogging.[2]
Magistrates who acted in violation of an appeal during the middle and late republic could be prosecuted for their actions. For example, Lucius Opimius, the consul in 121 BC who acted on advice of the senate in a senatus consultum ultimum to suppress Gaius Sempronius Gracchus and supporters, was brought up on trial for violating provocatio laws. He was, however, acquitted.[3]
History
edit| Year | Name |
|---|---|
| 509 BC | lex Valeria |
| 451 BC | Twelve Tables |
| 449 BC | lex Valeria Horatia |
| 300 BC | lex Valeria de provocatione |
| 2nd century BC | leges Porciae |
| 132 BC | lex Sempronia de capite civis |
| 123 BC | lex Acilia repetundarum |
According to Roman annalists, provocatio gained legal recognition in the lex Valeria of 509 BC, in the first year of the republic after the overthrow of the kings. The lex Valeria is "generally now held to be a fictitious anticipation of the lex Valeria of 300 BC";[1] scholars, however, still continue to disagree as to whether the early legislation actually existed.[5]
Development
editIt is conceivable that some appeal powers existed as far back as the beginning of the republic c. 509 BC. If so, the powers must have been limited, inasmuch as magistrates could ignore or refuse to permit appeals. By the time of the Twelve Tables, the power over life and death of citizens was placed into the hands of the people writ large. But full extension of these powers did not occur the lex Valeria of 300 BC.[6]
This last lex Valeria in 300 BC made it a crime for a magistrate to ignore such an appeal and forced a magistrate to allow the appeal even if a plebeian tribune did not act to refer it to a popular assembly.[6] According to Cicero, provocatio was mentioned in the Twelve Tables; "the first undisputed evidence, however, of any legal sanction [for provocatio] is in a lex Valeria of 300 BC".[2]
Scholars differ as to whether the first two leges Valeriae actually existed. Many scholars believe the first two were annalistic retrojections and that the only real lex Valeria was the last on in 300 BC. Others believe that the reported earlier laws were real and that the last lex Valeria was instead a restatement.[7]
Late republic
editNew legislation in the lex Porcia in the early 2nd century BC made it a capital offence for a person to kill or scourge a Roman citizen.[8] It is possible that the law did so only without the authorisation of a iudicium populi; it may also have been extended to the sphere militae (military discipline). If so, such provisions were reinforced by Gaius Sempronius Gracchus' lex Sempronia de capite civis in 123 BC, which made all death penalties illegal without a iudicium populi. However, the right itself became less important due to the quick development of the senatus consultum ultimum in 121 BC, giving the senate broad de facto legal authority to kill citizens declared a threat to the state, along with the creation of permanent courts (the quaestiones perpetuae) which were not subject to appeal.[9]
References
edit- Citations
- ^ a b Stavely & Lintott 2012.
- ^ a b Lintott 2009, p. 33.
- ^ Lintott 2009, p. 89.
- ^ Roselaar 2017.
- ^ Eg Forsythe 2005, p. 154, writing "this Valerian Law of 509, however, is fictitious; it is patterned after an actual Valerian Law on provocatio of 300 BC", but contra Cornell 1995, p. 226, writing "the historicity of the Lex Valeria [of 509] is uncertain, but there are good grounds for supposing that some sort of right of appeal existed in the early Republic, and it is hypercritical to dismiss the Lex Valeria out of hand".
- ^ a b Roselaar 2017, "The three Valerian laws".
- ^ Roselaar 2017, "The development of the tribunes' power".
- ^ Roselaar 2017, "Provocatio in the late republic", citing Liv. 10.9.
- ^ Roselaar 2017, "Provocatio in the late republic".
- Sources
- Cornell, Tim (1995). The beginnings of Rome. London: Routledge. ISBN 0-415-01596-0. OCLC 31515793.
- Forsythe, Gary (2005). A critical history of early Rome. Berkeley: University of California Press. ISBN 978-0-520-94029-1. OCLC 70728478.
- Lintott, Andrew (1972). "Provocatio: from the struggle of the orders to the Principate". Von den Anfängen Roms bis zum Ausgang der Republik. Rise and decline of the Roman world. Vol. 2. De Gruyter. pp. 226–67. doi:10.1515/9783110836417. ISBN 978-3-1100-4250-4.
- Lintott, Andrew (2009) [1st printing 1999]. The Constitution of the Roman Republic. Oxford University Press. ISBN 0-19-926108-3.
- Roselaar, Saskia (2017-05-24). "lex Valeria de provocatione". Oxford Research Encyclopedia of Classics. doi:10.1093/acrefore/9780199381135.013.8191. Retrieved 2022-08-18.
- Staveley, Eastland Stuart; Lintott, Andrew (2012). "provocatio". In Hornblower, Simon; et al. (eds.). The Oxford classical dictionary (4th ed.). Oxford University Press. doi:10.1093/acrefore/9780199381135.013.5394. ISBN 978-0-19-954556-8. OCLC 959667246.