449 B.C.[1] A third lex Valeria of 300 B.C. prohibited the execution or scourging of one who had appealed; but the weakness of former enactments was repeated in this law; it declared the magistrate's contravention of it to be improbe factum.[2] An effective sanction seems first to have been supplied by one of the three Porcian laws;[3] certainly at the end of the Republic a violation of the provocatio entailed a capital penalty on the magistrate.
With respect to the capital jurisdiction of the tribunes, we have seen how their tacit recognition of the appeal gave rise to this jurisdiction.[4] But in theory the coercion of the tribune, when used in defence of the sanctity of his own person, was not subject to appeal.[5] Here the old religious penalties remained in force, and a period as late as the year 131 B.C. witnessed the spectacle of a tribune dragging a censor, who had degraded him, to the Tarpeian rock with intent to hurl him down—a fate from which he was saved only by the veto of the tribune's colleagues.[6]
Scourging, which is found in the early Republic as a punishment employed in the military levy,[7] was practically abolished as a mode of coercitio by the third lex Valeria of 300 B.C.[8] and the leges Porciae, which submitted the threat of such punishment to appeal, the latter laws imposing a heavy penalty on the magistrate who inflicted it.
Imprisonment (abductio in carcerem, in vincula), although not recognised as a penalty in Roman law, plays a double part in the coercitio. It was one of the modes by which the magistrates defended their dignity and secured obedience, not merely from private citizens, but from lower magistrates and senators; and it was adopted as a precautionary measure to secure the appearance on trial of one whom they accused. The use of this severe measure against magistrates by any power but the tribunate is
- ↑ pp. 79, 109.
- ↑ Liv. x. 9 "cum eum qui provocasset virgis caedi securique necari vetuisset, si quis adversus ea fecisset, nihil ultra quam improbe factum adjecit." The meaning of this sanction has been much disputed: it may mean "incapable of making a will," on the analogy of "improbus (i.e. qui probare non potest) intestabilisque esto." Mommsen (Strafrecht p. 632) takes the expression to mean that the act of the magistrate would be regarded as "unjustified," i.e. as an ordinary criminal offence.
- ↑ Cic. de Rep. ii. 31, 54.
- ↑ p. 95.
- ↑ Dio Cass. liii. 17.
- ↑ Plin. H.N. vii 44; Liv. Ep. 59.
- ↑ Liv. ii 55; vii. 4.
- ↑ The virgis caedi in the third lex Valeria (note 2) probably refers to scourging as well as to death by the rod.
