Clementia Caesaris: Domitian to Alexander

Competitive dementia was given a new twist by Domitian. Suetonius says that he never imposed a harsh sentence without a preliminary promise of clementia, so that the lenitas of his preambles came to be a sure indication of a cruel death.

Allow me, senators, to ask of your loyalty [pietas] something that I know I will only obtain with difficulty, and that is that you grant them liberum mortis arbitrium. You will thus spare your own eyes and everyone will know that I was present in the senate.

(Dom. 11.2-3)

Domitian had guarded against the dilemma that had defeated Nero. Where the latter had failed to get a sentence against Antistius Sosianus that he could veto, Domitian used a veiled threat to get what he wanted. And by having his attendance at the senate recorded he warded off any possibility of clemency being credited to publica clementia instead of to the emperor.

Domitian’s programme of moral reform included matters that made contributions to humanitas, such as a ban on castration, restrictions on child prostitution, and very possibly a ban on circumcision.⁷³ The last-mentioned can perhaps be inferred by combining two pieces of evidence. First, the fact that Hadrian is known to have imposed a total ban on circumcision, which Antoninus Pius relaxed to the extent of exempting the Jews from the ban.⁷⁴ Second, that Suetonius, after observing that a tax on the Jews⁷⁵ was rigorously enforced, tells us that in his youth he was present when a man of ninety was examined to see whether he was circumcised (Dom.

man was suspected of hiding his circumcision in order to avoid paying the tax.

Domitian’s arrangements had a mixed reception. The contemporary poet Statius was enthusiastic: �Not yet had our ruler’s fine clemency [pulchra ducis clementia] begun to preserve males as they had been born. Now it is a crime to shatter a sex or to change a man. His clemency rejoices to see men as nature produced them’ (Silv. 3.4.73). But Juvenal satirised the whole idea of clemency: �[Judaea], the country where kings celebrate the sabbath and clemency allows pigs to reach old age’ (6.156-60).

The second century displays an elaboration of existing arrangements rather than radical innovations. There are no further challenges to the emperor’s clementia by the senate. Sometimes there is no progress at all. The absence of clementia from Trajan’s coins is said to be consistent with the fact that Trajan did not fight any civil wars and was not called upon to save any citizen lives.⁷⁶ This agrees with the fact that the trials of the reign do not make a feature of the emperor’s clemency.

Clementia on some of Hadrian’s coins is no more than one of a group of stereotyped virtues.⁷⁷ For Hadrian’s true humanity we must consult his legal rulings. He followed Domitian in reacting severely against mutilations of the human form, making both castration and the excavation of thlibiae^7S constructive forms of murder under the lex Cornelia de sicariis:

The penalty for making eunuchs or thlibiae is confiscation of property, but for slaves who perform the operation it is death. Governors must take such cases under advisement even if the victims remain silent, for they have lost their manhood [virilitas]. No one may castrate a free man or a slave, whether the victim is willing or unwilling. Nor shall anyone of his own accord offer himself for castration, on pain of a capital penalty.

(D. 48.8.4.2, 5 adapted)

The passage does not include circumcision, but it has been cogently argued that Hadrian also banned that practice.⁷⁹

Another example of Hadrian’s clemency is the case of the father who, learning that his son had committed adultery with the stepmother, �accidentally’ shot the son while hunting. Hadrian condemned it as the act of a bandit rather than a father; a father’s power over his children should be based on piety, not savagery (D. 48.9.5). The ruling placed an important restriction on the traditionally unfettered power of life and death (ius vitae necisque) of a father over his children.

Respect for the human form as an aspect of humanitas continued to be enforced by Hadrian’s successor, Antoninus Pius. He enacted (or took over from Domitian or Hadrian) a law punishing circumcision with the penalty for castration; the law exempted Jews.⁸⁰ He also found a way around the savage penalty for confessed parricides that had eluded Augustus. A senator who confessed was merely marooned on a desert island, and even that was only done because it was against the law of nature to let such a man live in comfort (on a more pleasant island) (SHA Pius 8.10). Pius is credited with a remark that could have been made by Terence. When the young Marcus Aurelius wept at the death of his tutor, Pius told the attendants: â€?Allow him to be a man; neither philosophy nor empire can eliminate natural feelings’ (ibid. 10.9). Again the link between humanitas and natural law. Pius presents as possibly the most liberal of the Antonines. It was no accident that located Aulus Gellius’ great punishment debate in Pius’ reign.

Marcus Aurelius is a difficult case. On the one hand he is identified with humanitas-driven interpretations of the law.⁸¹ He also gave practical expression to Seneca’s principle of diminished responsibility when he ruled that a son who killed his mother in a fit of madness was sufficiently punished by his insanity, and needed nothing further except to be kept under restraint for his own safety and that of others.⁸² On the other hand, this rescript merely took a ruling by Pius a stage further,⁸³ and there are no other contributions by Marcus in the area of homicide, which was the chief repository of the penal reforms of his two predecessors.

The derivative nature of Marcus’ punitive legislation is borne out by the literary texts. When we are told, for example, that Marcus punished all crimes with lighter penalties, but was sometimes implacable towards the manifestly guilty in serious cases (SHA Marc. 24.1), it is not clear whether he was following Seneca or overruling an Augustan precedent. In any event there was nothing original in it. The assertion that he scrupulously observed aequitas in his dealings with captured enemies (ibid. 24.3) is equally unhelpful. Even when Dio cites, as an example of this, Marcus’ decision not to sentence Tiridates of Armenia to death, but merely to send him to Britain (Dio 71 [72]. 14.2), this does not seem to represent any advance on Tiberius’ treatment of Bato and Maroboduus. Similarly, the leniency shown to the accomplices of the usurper Avidius Cassius⁸⁴ was simply a continuation of Augustus’ policy of saving the lives of citizens. Even the killing of Cassius himself is carefully described so as to preserve the image of benevolence: â€?In accordance with his dementia he suffered, rather than ordered, Cassius’ execution’ (Marc. 26.10). Augustus had said much the same about Caesar’s murderers.

If Marcus is to be credited with originality at all, it is as a synthesiser. His principal legal adviser, Volusius Maecianus, wrote the first, and most comprehensive, treatise on the public criminal laws in fourteen books; and Venuleius Saturninus wrote more compactly on the same subject in three books. These ventures into an untouched field will have owed their inspiration to Marcus.⁸⁵ It was also at this time that the first collection of emperors’ decrees was compiled, when Papirius Justus assembled the decrees of both Marcus and Verus, and of Marcus alone.⁸⁶ The collection was not official, any more than the works of Maecianus and Venuleius were, but again the Stoic-king is the likely source of encouragement.

Humanitas and clementia had been professionalised by the Antonines.

Ulpian was no longer using the word humanitas in his own writings.⁹⁰ He led the way in giving punishment a degree of systematisation and rationalisation that left no room for sentiment.⁹¹ This was not entirely new. We recall Seneca’s judge who pronounces sentence of death without any sign of emotion (Ira 1.16.3-6). But Seneca at least fulminates against brutal punishments, whereas Ulpian draws fine legal distinctions that have no basis in humanitas. For example, he writes that although those guilty of sacrilegium (temple­theft) have been thrown to the beasts, burnt alive or suspended from the fork, the penalty should be moderated (sic) to a maximum of being thrown to the beasts (D. 48.13.7). This was not because it was more humane, but because it was better placed to satisfy the insatiable demands of the games.⁹²