RRC 301/1, p. 313-314.

The denarius presented here bears on its obverse a helmeted head of a woman that can be identified, thanks to the legend, with Roma. The mention of P. LAECA refers to the triumvir monetalis (the moneyer) who oversaw the minting of the coin, possibly in 110-109 BCE (about P. Porcius Laeca, see RE XXII.1 (1953), s. v. « Porcius » no. 21, col. 214 (H. Gundel)). On the reverse, three characters are depicted. The gesture of the tallest character who is raising his hand over the Roman citizen and the legend PROVOCO shows that the scene here depicted must be a provocatio, that is when a Roman citizen uses his right of appeal to the people against a magistrate exercising his coercitio (that is his right to repress) and threatening him with corporal punishments. The ius provocationis clearly embodies and ensures the libertas of the Roman people, that is the ability and the privilege of the Roman people to directly exercise their power. One direct effect of the existence of the ius provocationis is that it clearly restricted the power of coercion of magistrates cum imperio, that is of superior magistrates (see Nicolet, Le métier, p. 429-430).

A literary tradition traces the origins of the first laws regulating the provocatio ad populum back to the beginning of the Republican period. Some sources actually state that immediately after the establishment of the Republic in 509 BCE, Publius Valerius Publicola would have been the first to propose for a vote a law forbidding any magistrate to execute or scourge a Roman citizen adversus provocationem, without letting him appeal to the people (Cicero, De Republica II.53; Livy, Roman History II.8.2; Digest I.2.2.16; see Giovannini, Les institutions, p. 21, 173). Decapitations by axe, however, were not dealt with in this law (on that question see the bibliographical survey in Lanfranchi, Les Tribuns de la Plèbe, p. 533-535). This first law of 509 CE was followed by two other laws. In 449 BCE, two consuls, L. Valerius Potitus, himself a descendant of the consul of 509 BCE, and M. Horatius Barbatus enacted a law prohibiting the creation of magistrates who could judge without appeal (Cicero, De Republica II.54; Livy, Roman History III.55.5). Finally, in 300 BCE, the consul M. Valerius Maximus Cordus, who was also a descendant of the consuls of 509 and 449 BCE, enacted a new law de provocatione that, according to Livy, stated that if a magistrate disregarded the ius provocationis, it had to be considered as “a wicked act” (inprobe factum). As a consequence a sanction – variously interpreted as a moral or a religious one – had to be taken against the violator of the law (Livy, Roman History X.9.5). It is also largely admitted that the law of 300 BCE extended the ius provocationis to capital penalties by decapitation (on the historiography, see Lanfranchi, Les Tribuns de la Plèbe, p. 534-535).
Scholars have debated a great deal regarding the existence of these three Valerian laws de provocatione. Some consider that the first two are an invention of the annalistic tradition and that it would have been only with the Lex Valeria of 300 BCE that the provocatio ad populum was legally defined for the first time as a fundamental prerogative of Roman citizens in the sphere domi, that is where civil law prevailed (in that perspective see Lovisi, Contribution, p. 170, 187-200). In a reverse perspective, another historiographical tradition continues to defend the authenticity of the three leges Valeriae (see for instance Giovannini, Les institutions, p. 173-178). In his study on the tribunes of the plebs, Thibaud Lanfranchi has reconsidered the various opinions and convincingly concludes that it may be with the law of 300 BCE that the provocatio was legally formalised in a context characterised by numerous changes in the field of criminal law (Lanfranchi, Les Tribuns de la Plèbe, p. 523-535, especially 535). The Lex Valeria of 300 BCE was not a general ban against the execution of Roman citizens. It targeted flogging and all forms of capital punishments – and among them also decapitations – and it condemned them only if there were applied adversus provocationem, that is against the conditions in which the provocatio was judged admissible. The members of the Roman army did not benefit from the provocatio ad populum as the lex Valeria limited the provocatio to the sphere domi: it was opposable only to the superior magistrates within Rome’s pomerium and, in some conditions, up to one mile beyond it. Any military commander having an imperium militiae – that could be exercised only outside the pomerium – could execute a Roman soldier simply by his own decision (on the distinction between the imperium militiae and the imperium domi and the role of the pomerium see Berthelet, Gouverner avec les dieux, p. 186-191). To sum up, the main input of the Lex Valeria had been to submit the exercise of urban capital coercion to appeal (for a good review on that subject, Lovisi, Contribution, p. 200-208).

At the beginning of the second century BCE, the so-called Porcian laws extended the realm of provocatio (on the leges Porciae see Rotondi, Leges, p. 268-269; Martin, “Die Provokation,” p. 87-91; Lintott, “Provocatio,” p. 249-253; Lovisi, Contribution, p. 208-218). Our knowledge of the Porcian legislation remains limited as the identity of the authors of these laws, their dating, and their precise content are not explicit in the available sources. Cicero writes that there were three laws, each enacted by one member of the gens Porcia, and that they added nothing new to the previous legislation regarding the right of appeal of the Roman citizens except that they fixed sanctions when this right was not respected (Cicero, De Republica II.54). One of the leges Porciae must have been proposed by Marcus Porcius Cato (most commonly known as Cato the Elder) when he was praetor in 198 BCE or consul in 195 BCE. A second one may have been enacted by P. Porcius Laeca when he was tribune of the plebs in 199 CE or praetor in 195 BCE. A third might have been proposed by L. Porcius Licinus when he was consul in 184 BCE.

By cross-checking this text with other sources, it is possible to suggest that the leges Porciae introduced three innovations. First, they established a severe sanction for the magistrates who did not respect the right of provocatio. Livy actually writes that one of the major inputs of the lex Porcia, compared to the lex Valeria, had been to state that scourging or killing a Roman citizen – without letting him appeal the decision of the magistrate to the people – was forbidden and that the magistrates exposed themselves to a severe sanction (gravi poena) which could be capital punishment or a heavy fine (Livy, History of Rome X.9.4; see Lintott, “Provocatio,” p. 249; Lovisi, Contribution, p. 209-210).

Second, the sources also mention that the Porcian legislation protected all Roman citizens from flogging, whereas the Lex Valeria prohibited flogging only as a precedent to decapitation (the fact that the leges Porciae contain a ban on flogging appears in Cicero, Pro Rabirio Perduellionis 12; Cicero, Second Speech against Verres V.160-163; Livy, Roman History X.9.4 and Sallust, The War with Catiline 51.21-22). Yet one aspect that has been debated is whether the flogging of Roman citizens was totally prohibited or whether it was submitted to provocatio in order to stop the magistrate’s coercion (in favour of the first hypothesis, see for instance Bleicken, “Provocatio,” col. 2448, Magdelain, “Provocatio ad populum,” p. 583; in favour of the second, Lovisi, Contribution, p. 210-213). The second interpretation is the most probable and is exemplified when, in his Second Speech against Verres, Cicero attacks Verres for having flogged and then crucified a Roman citizen named Gavius in Messina, who while he was beaten, repeatedly expressed the fact that he was a Roman citizen – implying thus that he had the right to appeal Verres’s decision (Cicero, Second Speech against Verres V.161-163).

The third innovation of the Porcian legislation is related to the “topography of the provocatio” and is exemplified by the coin presented here (quotation taken from Lovisi, Contribution, p. 213). Actually, on the reverse of the coin presented here three characters are depicted. The taller character at the centre is depicted wearing military dress (paludamentum). At his right side, another character, possibly a lictor, is holding rods. The military dress of these two characters contrasts with the character looking right who is represented draped in a toga in a gesture that can be interpreted as an act of protest. The central character is depicted extending his right arm above the head of the Roman citizen, a gesture that may be interpreted as a sign of command (in that perspective, see Lintott, “Provocatio,” p. 250, esp. n. 125).
Scholars have proposed different interpretations of the scene – and thus of the nature of the innovation brought by the Porcian legislation – as they disagree on the identity of the central character. Jochen Bleicken’s interpretation according to which the central character is the rogator of the lex Porcia who would extend his arm above the Roman citizen to protect him is not acceptable and has been convincingly refuted (Bleicken, “Provocatio,” col. 2449, for criticism see Martin, “Die Provokation,” p. 88). Two kinds of interpretation of the scene can be distinguished. For some, it is the togatus and thus a citizen who invokes provocatio in front of a Roman magistrate or a military commander outside Rome’s pomerium (in Mommsen, Droit pénal, I, p. 34 and n. 3, the central character is interpreted as a Roman general against which the citizen would appeal out of the limits of the Urbs; in Crawford in RRC I, p. 314 and Martin, “Die Provokation,” p. 88, the central character is a provincial governor; in Lintott, “Provocatio,” p. 250, he is a “magistrate”). In a very different perspective, some scholars have suggested that it is the central character, embodying the Roman army, who would pronounce the word provoco in front of the togatus who would embody the Roman people. The scene would thus symbolise the fact that the Porcian legislation extended the provocatio to the soldiers (see Magdelain, “Provocatio ad populum,” p. 584).
The interpretation according to which it is the togatus who is invoking provocatio in front of the man in arms, who might be threatening him with being beaten by the lictor behind him, seems to be the most convincing. One central element of the scene depicted on this denarius is the clear distinction between the togatus embodying the world of the Roman citizens and the military dress of the commander/magistrate, which implies that the scene must take place outside Rome’s pomerium. As it has been suggested, the scene here depicted may refer to one of the leges Porciae – possibly the one whose rogator was P. Porcius Laeca – that may have extended provocatio for Roman citizens wherever they were in the Empire, even in the sphere militiae (see for instance Martin, “Die Provokation,” p. 88; Lintott, “Provocatio,” p. 250; for a bibliographical survey, see Lovisi, Contribution, p. 213, n. 498). This last point raises hugely debated questions: did the Porcian legislation extend the right of provocatio to the armies themselves? Did any citizen-soldier condemned to death by a superior have the right to appeal the decision? On that point sources are contradictory. Sallust narrates that in 108 BCE the governor of Vaga, T. Turpilius Silanus, was suspected of treason and was summoned before the proconsul of Africa, Metellus Numidicus. Sallust then writes that Metellus sentenced Turpilius to death after being scourged for the reason that “he was a citizen possessing only Latin status (nam is civis ex Latio erat)”. This may imply that if he had been a Roman citizen he may have been allowed to appeal the condemnation (Sallust, The War with Jugurtha 69.4). However, it is also possible to interpret this source in a very different way, as meaning for instance that T. Turpilius Silanus was a Roman citizen from the Latium and that he had been summoned to military court because of his Roman citizenship (in that perspective, see Berthelet, Gouverner avec les dieux, p. 192-193). This passage of Sallust cannot be interpreted as a piece of evidence of the fact that the provocatio would have been possible in the military sphere and that citizens-soldiers would have had the right to appeal the condemnations of their superiors. A similar conclusion can be made concerning the scene represented on the coin presented here. The togatus is not a citizen-soldier evolving in the sphere militiae and appealing from the decision of the military in front of him – if this had been the case he would have been represented as a soldier. As a consequence, we do not think that this coin can be used to prove that the Porcian legislation extended the provocatio to the sphere militiae whatever the status of the citizens – be they civilians or soldiers (in that perspective, see Berthelet, Gouverner avec les dieux, p. 192-194). Other sources of the second and first centuries BCE actually confirm that military commanders could still execute or severely punish their men as they wanted (see Cicero, De legibus III.3.6 and Polybius, Histories I.17.11, VI.12.7, VI.17.9; on this debated question see Nicolet, Le métier de citoyen, p. 145, n. 2 ; Lintott, “Provocatio,” p. 249-252). As a consequence, the scene depicted on the reverse of this denarius can be interpreted as reflecting one important change introduced by the Porcian legislation, namely the extension of the right of provocatio for all the Roman citizens wherever they were in Empire provided that they were civilians. Finally, as convincingly suggested by Giovanni Pugliese, this extension of provocatio must have meant that it became less easy to control whether this right was respected. It would thus explain why it had been necessary to increase at the same time the sanctions against the magistrates who did not respect it (Pugliese, Appunti, p. 40 and following; Lovisi, Contribution, p. 215).

To conclude, one can finally wonder why such a scene was depicted on these silver emissions minted by P. Porcius Laeca around 110-109 BCE. The moneyer must have wanted to recall the memory of the laws enacted by one of his ancestors in order to highlight the prestige of his gens (in that perspective see Bleicken, “Provocatio,” col. 2448; Pérez, Monnaie du pouvoir, p. 115). Moreover, the special features of the scene depicted on the reverse of the coin presented here, especially the contrast between the military and civilian characters, shows that the moneyer had been attentive to refer to one particular aspect of the innovations brought by the leges Porciae, namely the fact that these laws were the first to guarantee the right of provocatio to all Roman citizens wherever they were in the Empire. For the people who lived in the regions which were under Rome’s imperium, that innovation must have had as a consequence an increasing of the value of Roman citizenship. From the Porcian legislation onwards, Roman citizens, wherever they were in the Empire, shared the right of conubium and of commercium (that is the right to enter into a legal marriage and the right to make formal contracts and to acquire property according to Roman law and procedure), and the right of provocatio, that is to appeal to the people and later on to the emperor and his representatives, from magisterial coercitio. This principle seems to have been respected during the end of the Republican period up to the first century CE as exemplified by the story of the apostle Paul. However, as it has been rightly shown by Peter Garnsey, under the whole imperial period, the judicial practice usually privileged Roman citizens of high status (Garnsey, Social Status, p. 221-276, esp. p. 267-271). From the Julio-Claudian period onwards, and even more during the second century CE, in penal cases and in particular for what concerns penalties, distinctions were legally made between the humiliores and the honestiores (who gathered veterans, decurions and members of the equestrian and senatorial orders). As a consequence, honestiores were exempted from torture during the questioning of the magistrates, from defamatory penalties such as flogging, crucifixion, or gladiatorship, but also from forced labour (they were instead condemned to exile). Honestiores shared also the privilege of not being subject to the death penalty, except in the case of very serious offences, such as maiestas. In contrast, from the Julio-Claudians onwards and in an even more generalised way from the Antonines and the Severans, the humiliores were sanctioned by penalties that were, in comparison to the past, assigned to slaves or non-citizens. To sum up, during the imperial period, the fixing of legal privileges evolved and was based not so much upon the criteria of Roman citizenship, but upon social statuses materialised by the distinction honestiores/humiliores.