What Provoked the Lex Porcia?

Arthur J. Wylene

In the Roman Republic, citizens enjoyed the right of provocatio, i.e., the right to
appeal to the people against punishments imposed by magistrates. While this right was
fundamental to Roman civil society - occupying a place similar to our Anglo-American
right to trial by jury - its origins and contours remain deeply controversial. One
particularly vexing question is whether, when, and how this right was extended to citizens
(and punishments) outside the city of Rome (typically defined as the area more than one
mile beyond the pomerium).

The traditional theory is that provocatio originally existed only within the city
limits of Rome (being tied to the tribunes' auxilium and the plebs self-help), but was later
extended to Italy and the provinces by a Lex Porcia carried by P. Porcius Laeca (either
during his praetorship in 195 or - more likely - his tribunate in 199). (See generally
Lintott, Provocatio. From the struggle of the orders to the Principate, ANRW I.2
(1972).) However, this is not universally accepted. Alternative theories range from the
posit that provocatio applied without geographic limit from its inception (Giovanni,
Consulare Imperium, 1983) to the hypothesis that it never legally applied outside the city.
(Greenidge, The 'Provocatio Militiae' and Provincial Jurisdiction (Classical Review,
1896) and The Porcian Coins and the Porcian Laws (Classical Review, 1897).)
Accepting that provocatio applied in the provinces (in any period) raises the difficult
subsidiary question of whether legionaries could appeal the sentences of their
commanders (to flogging, execution, or both). (See generally Nicolet, The World of the
Citizen in Republican Rome, p. 406 (1988).)

Heitland believed that all three Porcian laws (Cic. Rep. 2.54) concerned the
penalty of flogging, rather than provocatio proper. (M. Tulli Ciceronis pro C. Rabirio,
with notes by W.E. Heitland, pp. 100-108 (1882).) He explained the second of these laws,
by P. Porcius Laeca, as follows: "[T]he principal enactment of this law was the extension
of the privilege [against flogging] to all citizens living or carrying on civilian pursuits in
Italy beyond the mile radius and in the provinces" adding that "the benefit of the new law
rested as will be seen almost entirely with the travelling capitalists."

In my view, Heitland was half right. The law by passed by Porcius Laeca plainly
did concern provocatio - as evidenced by both the famous "Provoco" coin (Crawford
RRC 301/1) and Cicero's dramatic exclamation "O Lex Porcia!" in his attack on Verres.
(Cic. Verr. 2.5.163.) However, Heitland's suppositions regarding the purpose and
beneficiaries of the law have merit. The early second century saw dramatic expansion of
Roman military (and thus magisterial) activity outside of Italy - particularly in the Greek
east, an area of great commercial interest to Roman merchants. This would almost
certainly have led to increased contacts - and potential conflicts - between Roman
civilians and magistrates in the field. Whereas in earlier times, a Roman citizen

Copyright © 2014 by Arthur J. Wylene

interacting with a magistrate outside of Italy would likely have been a soldier, now he
might be an equite on business in (or adjacent to) an eastern war zone. The demand for
some form of legal protection for such civilians (i.e., wealthy men of substance) is a
logical reaction to these developments. Under this analysis, provocatio militae need not -
and would not - have extended to soldiers, thereby avoiding many evidentiary and
conceptual difficulties on that point. A Lex Porcia extending provocatio to civilian
citizens overseas would thus fit both the available evidence and the historical context.

It may further be worth considering the suggestion of Greenidge and J. S. Reid

(On Some Questions of Roman Public Law, JRS, 1911) that provocatio was extended first
to Italy - whether by custom or law - and only later to citizens overseas, which would fit
the historical development hypothesized above, and the different juridic treatment
accorded to Italy in related contexts. However, that is beyond the scope of this post.

Copyright © 2014 by Arthur J. Wylene