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The Right of Appeal

"Paul replied, “I am standing before the judgment seat of Caesar, where I ought to be tried. I have done nothing wrong to the Jews, as you yourself know very well. For if I am an offender, or have committed anything deserving of death, I do not object to dying; but if there is nothing in these things of which these men accuse me, no one can deliver me to them. I appeal to Caesar.”

-The Bible, Acts, 25.11


Paul, a Roman citizen, spoke to Porcius Festus, the Roman procurator of Judea during the reign of Nero (59-60 AD). The right of appeal to a higher power is a Roman right that goes back many centuries to the time of the Republic. It is easy to take for granted a concept of appeal and the value to protect the individual and society from corrupt magistrates.


The Romans recognized that appeal gave a second opinion, and did not guarantee a more fair judgement:

"There is no one who is not aware how frequently appeals are employed, and how necessary they are to correct the injustice or the ignorance of judges; although sometimes sentences which have been properly imposed are changed for the worse, as he who renders the last judgment does not, for this reason, render a better one."
- Ulpianus, On Appeals, Book I, 49.1 (Latin, English translation)

Here's a coin issued by Porcius Festus as the procurator of Judea in the name of Nero from close to the time that Paul appeared before Porcius Festus.

Judaea, Procurators, Porcius Festus, Æ Prutah struck in the name of Nero, Jerusalem, 59-62 CE

Obv: NЄPѠNOC, in three lines within wreath

Rev: L ? KAICAPOC, palm branch


Porcius Festus expressed doubt about the basis for Paul's accusation. Paul could not expect a more fair hearing from Nero who was not sympathetic to Christians. Tacitus reports that Nero's persecution of Christians was so severe that it encouraged sympathy (see Tacitus, Annals, 44). The phrase "provocare ad populum" is a call or summons to the Roman people to challenge a sentence made by a magistrate. In Nero's time the full authority of the people was held by the Emperor.

The coin I am featuring today from the first century BC celebrates the laws that established these rights. At the end of the second century the Porcian laws (leges Porciae) extended the rights of provocatio.

P. Laeca, 110-109 BC, AR Denarius (18.3mm, 3.92 g, 12h). Rome mint

Obv: P. LAECA, Helmeted head of Roma right; X (mark of value) below chin

Rev: PROVOCO, Figure in military dress, left, with right hand raised; on left, figure in toga, gesturing with right hand; on right, attendant with one rod in right hand and two rods in left hand. Border of dots.

Ref: Crawford 301/1; Sydenham 571; Porcia 4


From right to left the characters on the reverse are:

  • the togatus representing a Roman citizen or civilian

  • the lictor or attendant summoned by the magistrate, the person who would enact the punishment or sentence (note the sticks or rods in his hands)

  • the magistrate wearing a paludamentum (military cloak) and kilt who is pronouncing sentence with his hand over the head of the citizen

The military dress of the magistrate leads to the interpretation of this scene as taking place outside of Rome. For an explanation of the military dress Crawford cites Cassius Dio 53.13. It is interpreted that the Lex Porcia referred to on the coin, extended the rights of provocatio to Roman citizens in the provinces.


Note: There are other possible interpretations of this scene - for these see the references cited by Roux 2018.


The tradition of appeal goes back to the start of the Roman republic and the first consul. Publius Valerius Publicola, the first consul of Rome after the monarchy was abolished, established the first of three rules of leges Valerianae in 509 BC providing to Roman citizens the right of appeal for capital punishment.


In 449 BC, consul L. Valerius Potitus, a relative of the first consul, together with his co-consul M. Horatius Barbatus prohibited the creation of new magistrates who could judge without option of appeal.


In 300 BC, M. Valerius Maximus Cordus, again a descendant of the earlier Valerians, established a sanction on magistrates who ignored provocatio and may have extended the law to cases of decapitation.


Early 2nd century, three additional improvements were added by a combination of Marcus Porcius Cato (Cato "The Elder), consul in 198 and praetor in 195, P. Porcius Laeca, tribune of the plebs in 199 BC and praetor in 195 BC, and L. Porcius Licinus when he was consul in 184. The added protections included:

  • defining a severe penalty (fine or death) for magistrates who ignored provocatio (the right to appeal)

  • establishing provocatio for sentences of flogging

  • extending provocatio to citizens outside of Rome

These are collectively the leges Porciae and the third is the rule thought to be illustrated on this coin, and celebrated by the this member of the Porcia family, late in the second century.


This coin is from an another member of the family (about 15 years earlier in 125 BC). Libertas (liberty) holding a rod (vindicta) in left hand and a pileus (liberty cap) in the right hand is also a reference to these laws of the Porciae. The context for this coin is festering debates in Rome that would eventually lead to the Social Wars. Marcus Fulvius Flaccus, an Ally to the Gracchi, was consul in 125, and proposed to give Roman citizenship to northern Italians. Divisions in Rome with Opemius resulted in Flaccus and his son being killed and Gaius Gracchus committing suicide in 122 BC.

M. Porcius Laeca, 125 BC, AR denarius (17.5mm, 3.89 g, 9h), Rome mint

Obv: Helmeted head of Roma right; mark of value below chin

Rev: Libertas driving quadriga right, holding vindicta, reins, and pileus; above, Victory flying left, crowning Libertas

Ref: Crawford 270/1; Sydenham 513; Porcia 3; RBW 1088.


It is interesting to note Livy's comment on the lowered standards for "self-respect" and "sense of shame" amongst republicans, that led to the need for more defined punishment to be legislated.

"The Valerian law, it is true, forbade any one 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 transgression to be a ‘wicked act.’ Such was the self-respect and sense of shame amongst the men of those days, that I believe that declaration to have been a sufficiently strong barrier against violations of the law. Nowadays there is hardly a slave who would not use stronger language against his master."
-Livy, History of Rome, 10.9

References


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