Clementia Caesaris: Seneca and Nero

Seneca was the principal architect of Clementia Caesaris in both its theoretical and practical modes. Although his first contributions were made under Claudius,⁶⁴ it was in Nero’s reign that he shaped his ideas and incorporated them in his De dementia which was published in 55/56.

The treatise was addressed to Nero, then some eighteen years old, and was intended to guide â€?the ruler of the whole world’ towards the ideal of a merciful monarch. The work put together a fundamental theory of clementia,⁶⁵ but it did so in a special way. Seneca provided guidelines that not only fostered leniency in punishment, but also redefined the basic question of criminal responsibility. Clementia aims at complete absolution. Looking beyond the formal evidence, it takes note of such factors as youth, error, intoxication, curative potential. In other words, factors producing diminished responsibility. Those factors may warrant total acquittal, or they may authorise a lesser penalty. Its potential for complete exoneration sharply distinguishes clementia from pardon [venia].

Seneca told Nero that he had been induced to write the work by what the emperor had said when asked by his praetorian prefect to sign a death warrant: â€?Would that I had not learnt to write!’ (Clem. 2.1.2). Nero took his tutor’s guidance seriously—too seriously. He was so eager to try out what he had been taught that he tried to create situations in which the senate imposed a death sentence, thus opening the way for Nero to veto that sentence. This ingenious device was one of Nero’s major weapons in his confrontation with the mainstream Stoic majority in the senate.⁶⁶

Nero’s first essay in contrived clementia was made in 61. The murder of the urban prefect Pedanius Secundus by a domestic slave had activated a decree of Augustus’ senate, the senatus consultum Silanianum, under which every slave who was under the same roof at the time of the murder had to be questioned under torture and later put to death.⁶⁷ Some 400 men, women and children of Pedanius’ household were tried by the senate.

The following year Nero tried again. Antistius Sosianus was charged with having recited defamatory verses about Nero. There was a demand for the death penalty. According to Tacitus this was done by arrangement with Nero, who wanted to display his clemency by vetoing a death sentence (Ann. 14.48.3). But the motion for the death penalty put forward by some senators was opposed by the intractable Stoic Thrasea Paetus. At this time the maiestas law was in abeyance, but Thrasea proposed that it be revived and that the statutory penalty⁶⁹ be imposed:

The executioner and the noose were abolished long ago. The laws lay down penalties which punish without brutalising the judges or disgracing the times. Let him forfeit his property and be sent to an island, where he can drag out his guilty life as an example of private misery and public clemency [publica dementia].⁷⁰

Thrasea’s proposal was accepted. Nero was deprived of a death sentence to veto, and the clash between Clementia Caesaris and publica clementia was brought into the open. By endorsing the Stoic doctrine of the supremacy of the statutory penalty, Thrasea had displayed the �true humanitas’ to which Seneca himself had drawn attention (Clem. 2.5.3).

Nero’s savage treatment of the Christians in 64 was a sharp reaction against what he had been taught, but this unpredictable individual had not finished his experiments with clementia. Acting on suspicions that Seneca was implicated in the conspiracy of Piso (AD 65), Nero sentenced him to liberum mortis arbitrium, a free choice of the manner of death. This order to commit suicide was considered a humane alternative (although elitist) to the terror and indignity of public execution.⁷¹ Nero also demonstrated his humanitas by preventing Seneca’s wife, Paulina, from dying with him. Common though it was for spouses to die together, Nero said that he had no quarrel with her (Tac. Ann. 15.60-4). But so confused was his thinking that in 66, when the Stoic Antistius Verus and members of his family killed themselves in order to forestall trial by the senate, Nero arranged for the senate to try them posthumously and to sentence them to death. This time no one proposed the statutory penalty, and Nero was able to veto the death sentence and to substitute liberum mortis arbitrium.⁷²