Right Of Appeal
Hitherto in criminal processes as well as in fines and corporal punishments it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in 245) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punishment had been pronounced otherwise than by martial law--a regulation which by a later law (of uncertain date, but passed before 303) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes which they had previously carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the -provocatio-, with no other penalty than infamy--which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon the holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. When therefore the consul acted within the old regal jurisdiction, he might in so acting perpetrate an injustice, but he committed no crime and consequently was not amenable for what he did to the penal judge.
A limitation similar in its tendency took place in the civil jurisdiction; for probably there was taken from the consuls at the very outset the right of deciding at their discretion a legal dispute between private persons.
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