Archive Authors Civic Polity Corpus Iuris Civilis E.J. Hutchinson Nota Bene Reformed Irenicism

The Right of Appeal and Constitutional Order

It is well known that the Apostle Paul appeals to his Roman citizenship to notify the Roman military tribune in Acts 22 that he should not be flogged. He later, in Acts 25, appeals to Caesar in order to gain a just hearing with respect to the charges leveled against by the “chief priests and the principal men of the Jews” (v. 2, ESV).

Doubtless much had changed in the Roman constitution from the Republic to the reign of the Julio-Claudian emperors in the first century. But Paul’s appeals to a citizen’s rights against the magistrate have deep roots in Roman history.

After the expulsion of Rome’s last king, Tarquinius Superbus (“Tarquin the Pround”), in 509 BC, the election of two consuls (Lucius Tarquinius Collatinus and Lucius Junius Brutus), and the expulsion of one consul, Collatinus, due to his family connections with the deposed king, Publius Valerius Publicola was elected as a replacement consul. For the first time, he made legal provision for the right of appeal (provocatio) against the magistrate in the Lex Valeria de Provocatione. In Book 2 of his On the Commonwealth, Cicero tells us that

[he]…showed himself “the people’s friend” par excellence by proposing to the people a law, which was in fact the first law passed by the Assembly of Centuries, to the effect that no magistrate should have a Roman citizen flogged or put to death without permitting an appeal. (The pontiffs’ records, however, state that even the king’s verdicts were subject to appeal, and this is confirmed by our augurs’ books. The Twelve Tables likewise indicate in several of their laws that it was legitimate to lodge an appeal against every verdict and sentence….) (2.53-4)

Livy, too, in his History of Rome 2.8, notes this measure of Publicola, “or the People’s Friend”:

The chief of these [popular] measures were the provision of the right of appeal to the people against the decision of the magistrates, and the loss of all civil rights for anyone convicted of plotting for the return of the monarchy.

The provision for provocatio was renewed again in 449 BC in the Lex Valeria et Horatia de Provocatione. Livy again (3.55):

Valerius and Horatius were elected to the consulship through an interrex, and began their official duties forthwith….As to the right of appeal–the one real safeguard of liberty–they went further than the mere restoration of what it had been before its abolition by the decemvirs, and strengthened the whole basis on which it stood by the solemn enactment of a new measure, which provided that no one should declare the election of any magistrate without the right of appeal, and that anyone who did so could be killed without offence to law or religion.

A law regarding appeal was again enacted in 300 BC, the Lex Valeria de Provocatione. Why did this law have to be so repeatedly instituted? Livy comments, in 10.9:

In the same year the consul Marcus Valerius proposed a law of appeal which should have stricter sanctions. This was the third time since the expulsion of the kings that such a law had been proposed, each time by a member of the same family. The reason for its having been brought up more than once was, I think, simply the fact that the wealth of the few was more powerful than the liberty of the people. Yet the Porcian law alone seems to have been introduced in order to protect the persons of the citizens, as it laid down a heavy penalty for flogging or killing a Roman citizen. The law proposed by Valerius forbade that anyone who had appealed should be scourged with rods or beheaded, but if the law was disregarded on either point, it did no more than term it a “wicked deed.” Such was the sense of shame amongst men at that time that this, I suppose, was thought to impose a legal sanction which would be sufficiently binding. Today hardly anyone would seriously utter such a threat.

For Livy, “the liberty of the people” is constantly under threat of abuse from an oligarchic faction, and thus has to be continually renewed and recognized by legal statue.

With the mention of the Lex Porcia de Tergo Civium, a law perhaps of 198 or 195 BC, we come nearer to Paul’s own situation. But in any case it is clear that such a right of appeal was fundamental to Roman Republican constitutional order in the period before the rise of the Principate; it was to serve as a safeguard against arbitrary displays of violence by those in positions of power. Any constitutional order that seeks to preserve justice for its citizens must, it would seem, likewise have its own similar provision for appeal. It is one factor (among many) that makes for a government of laws rather than of men.

By E.J. Hutchinson

E.J. Hutchinson is Assistant Professor of Classics at Hillsdale College.