Humanitas and clementia: Flavians, Antonines, Severans

The most important source for the period is the younger Pliny, especially in the Panegyricus, his speech of thanks to Trajan for making him suffect consul in 100.¹⁹ The following is of special interest:

I have often speculated on the qualities required of a man whose word rules land and sea, peace and war.

(Pan. 4.4-7 adapted)

Gathering together a number of threads of the new humanitarian image, Pliny centres the totality in one individual, the Great Man, rather than in the traditional abstraction of senate and people. The result is unmistakably humanitas Romana, however. On the one side are three features of traditional severity, namely severitas, gravitas and maiestas; on the other side are three humanitas values, hilaritas, simplicitas and humanitas itself.

Trajan abolished charges of maiestas minuta for the duration of his reign. He was not the first emperor to do this,²⁰ but he was the first to give a clear exposition of the thinking behind the abolition. During Pliny’s term as governor of Bithynia charges were lodged against Dio Chrysostom, who had erected a statue of Trajan within the same precincts as the place where Dio’s wife and son were buried. Pliny having written to the emperor for guidance, Trajan replied as follows:

You well know that it is not my policy to secure reverence [reverentia] for my name by exposing people to fear or terror, or by sanctioning charges of maiestas. Therefore abandon the enquiry, which I would not allow even if it were supported by precedent.

(Ep. 10.81, 82)

Trajan here uses the same word as Seneca, reverentia, for the obligation of the humanitas inferior. In another letter Pliny reports that he has found in Bithynia �the spirit of obedience and loyalty which you have earned from the human race’ (Ep. 10.17b). The emperor’s respect for human rights is further shown by his instructions in regard to the Christians. Pliny had written that he was dismissing charges against those who recanted, taking as proof of recantation the rendering of cult to the Roman gods and to Trajan’s statue, and the pronouncement of a curse—Christo maledicere. The emperor replied excluding his own statue and the curse from the recantation.

There was, however, a flexible element in Trajan’s humanitas. In order to punish the notorious informers who had ruined many people in previous reigns, Trajan held a mass trial in the amphitheatre and deported them en masse in specially chartered ships. Pliny found it â€?a beautiful sight’ that relieved the entire human race of its cares.²¹ The episode ranked as an outstanding act of humanitas. Again that elastic concept was in the eye of the beholder.

We are indebted to Pliny’s adoptive father, the elder Pliny, for a memorable thought:

Winged missiles are the most criminal perversion of the human genius. To kill people more quickly we have taught iron how to fly.²²

Trajan’s position on human rights was built on foundations laid not only by Seneca, but also by subjects of rulers after Nero. In 69 the urban prefect, Flavius Sabinus, tried to avoid trying a case that involved the death penalty, because of his abhorrence of bloodshed. He eventually capitulated, but only under pressure from the ephemeral emperor Vitellius (Tac. Hist. 2.63-4). Then, in Domitian’s reign, the urban prefect Pegasus, equally averse to bloodshed, refused to accept from the emperor a mandate authorising him to conduct trials that carried the death sentence. Later in the reign another urban prefect, Rutilius Gallicus, received a special accolade from the poet Statius for his leniency.²³

The younger Pliny’s contemporaries add very little to our picture.²⁴ The great disappointment is Tacitus.

In the second century the uses of humanitas in legal texts, which we have already discussed, are supplemented by one literary source of major importance.²⁶ Aulus Gellius, whose piece on the etymology of the word humanitas¹⁷ points to an upsurge of interest in human rights, confirms that impression by his account of the great debate on punishment theory in Antoninus Pius’ reign.²⁸ The debate, which Gellius claims to have attended in person, features the rhetorician Favorinus and the jurist Africanus. Favorinus launches a stinging attack on the punishments laid down by the XII Tables. He claims that the penalties are either too harsh, too lenient, too obscure or too improbable. He cites the right to kill the nocturnal thief, the trifling penalty for minor assaults, the talionic principle that allowed retaliation in kind, and the right given to creditors to cut up a debtor’s body in proportion to their claims.

Africanus replies that the XII Tables, far from being inhuman, is the most humane of all laws. He enunciates a proposition:

A law should be interpreted in the context of its own time. Punishments are in a constant state of flux. They depend on contemporary mores, on forms of government, on the current view of what best serves the public interest, and on the kinds of fault needing to be cured.

The jurist ends his speech with a justification of the deterrent effect of savage penalties. Noting the punishment of the Alban, Mettius Fufetius, that had so disturbed Livy, he points out that the culprit had broken his pledged word; he cites Vergil in support of the point.²⁹ The debate ends with the audience expressing its approval of the jurist’s case.

Whether the debate is fact or fiction is of minor importance.³⁰ What does matter is that Gellius has given us some valuable insight into the thinking of the mid-second century. Africanus’ victory is in perfect accord with the dominant role of humanitas in the legal sphere at that time. By assigning pride of place to paideia in his comment on the etymology of humanitas, Gellius implies that the trained mind is best equipped to handle the problems troubling society. And it is the trained legal mind, rather than that of the rhetorician or orator, that provides what is required. The situation is starting to be governed by a constant jurisprudence, by a consistent set of rules. The seed sown by Seneca is bearing fruit; discretionary punishment is being consolidated as one of the hallmarks of human rights.³¹