PLINY THE YOUNGER IN THE SENATE, 105 ce

In 105, an unassertive jurist, Titius Aristo, who had been an auditor of the great Cassius and a commentator on his work, was the recipient of Pliny’s thoughts, conveyed at some length, on the writer’s conduct of a senatorial vote.^[159] The matter at issue was the decision taken on the fate of the freed­men of a dead senator, the consul Afranius Dexter.

Placed in the centre of book 8, the letter is pivotal and designed, not merely as a technical query, but as a literary exercise.^[160] As Whitton argues, the opening profession of ignorance is designed to dazzle, the ‘digression’ on the ‘enslavement’ of the Senate to Domitian and its consequent ignorance of its own procedure is a commentary on the body of the letter, the unfettered judgment of a free Senate, no longer ‘exiled’, exercised over real slaves. But this was how Pliny hopes that his contemporary readership will react. To them, his rescuing of the freedmen from the worst penalty, death, in favour of exile, would read like mercy. But, as will be argued below, Pliny’s conduct, and that of the Senate, falls short in a number of key respects. The observa­tion that the Senate had lost the ability to make sensible judgments about voting could be extended to its failure to appreciate why legal procedures should be conducted in the right order and that, in particular, a verdict of guilt or innocence should be formally reached and recorded before sentence is pronounced.

Pliny’s account dodges a number of relevant questions. First, had it been proved, at the time of the vote, that a crime had been committed? The cause of Dexter’s death, which was agreed to be unnatural, was uncertain and Pliny cites three possibilities: suicide by his own hand; murder at the hands of his household; and suicide, but by their agency in obedience to his orders.^[161] According to Pliny, at the time that the Senate chose to debate the matter, responsibility for the death was still unknown. Was the death suicide? Were the slaves in a position to prevent it? Where the slaves were at the time is not stated; a more considerate suicide, if such he was, might have ensured that the slaves and freedmen were out of the house at the time (and there­fore unable to supply assistance or prevent him). Pliny does not know, but he should have done. Answers to those questions were directly relevant to the fate of the slaves, as well as the freedmen; all might be liable to judicial torture but it was still, in theory, possible for them or others to prove that they were unable to intervene.

Secondly, and assuming that a crime had been committed, were the freed­men liable on grounds of failure to protect? As we have seen, ‘customarily’ members of the familia of masters who were killed, and who took no action to protect them, even against themselves in cases of suicide, were liable to be executed. Before 61, the question of the liability of freedmen, as members of the familia, for interrogation and punishment had not, apparently, been raised. Nero’s decision in 61 had held the line that slaves were liable to punishment but freedmen were not. Forty years later, however, the ques­tion was still a live one and the Senate were invited, again, to adjudicate on whether the freedmen of a man, who had died violently, should suffer as a consequence of his death.

Thirdly, had the quaestio, to be conducted by the praetor or some other magistrate, already taken place? Or was it, or a further stage of it, to take place in the future? Pliny makes no reference to a preliminary investigation, yet the narrowness of the question under debate, the fate of the freedmen, suggests that there had been an enquiry of some kind, which had been inconclusive. On the other hand, the decisions reached by the Senate as to liability of both slaves and freedmen to the quaestio suggest that some part of the investigation, if not the main part, was still to come. Regardless of the outcome, the Senate, would proceed on the basis of unproven assumptions to pass judgment as to the guilt or innocence, not only of the freedmen but of the slaves as well, without waiting for the quaestio to run its course. With the verdicts still unresolved, it was not surprising that the senators themselves were far from unanimous as to the guilt or innocence of the freedmen, whose fate they were to decide.

Why was the outcome of the quaestio anticipated? The senate seem to have proceeded on the basis of an understanding that, as Dexter had been ‘killed’, his familia were liable to punishment for their failure to protect, regardless of the circumstances of his death, which were still unknown. In terms of the mention in the SC of the familia of the occisus, the man killed, the hard­liners were technically correct. Freedmen were also members of the familia. Whether inclusion of the freedmen in the quaestio (or as liable automati­cally to punishment for failure to protect) was the intention of the original drafters of the SC is another matter; had they been liable, Pacuvius Labeo’s freeing of his slave to save him from answering for his master’s suicide would have had no beneficial effect.

Sitting as a court, the Senate, including Pliny, whose humanity did not extend to the slave element in the familia, disposed of the slaves without controversy. They were liable to torture in the quaestio and would then be executed, not for the crime (which had yet to be proved) but, presumably, for failing to keep the master alive.

When the time to vote on the fate of the freedmen arrived, Pliny faced two problems. One, which he did not admit, was that the Senate had pre-empted the conclusions of the quaestio as to guilt or innocence. Secondly, a majority of the Senate favoured punishment of some kind, either the death penalty or exile (relegatio), and assumed the guilt of the freedmen, but a substantial minority, Pliny included, favoured acquittal, believing them innocent, or at least not liable for failure to protect. His disagreement with the other two groups was fundamental: the divergence concerned not the punishment but the verdict. The supporters of the death penalty and banishment then threat­ened to make common cause, and use tactical voting to remove the option of acquittal first. Pliny, despite constant interruptions, insisted that the three proposals be taken separately, the main proponent of the death penalty then abandoned his proposal and compromised on exile because he was afraid that acquittal would have a plurality if the three were taken separately.

A rapid reading of Pliny’s letter leaves the impression of a writer eager to celebrate his own moderation. The reality, from a modern standpoint, is less appealing. Pliny made no attempt to protect the slaves, unlike the demon­strators against the executions in 61; he condoned the use of the quaestio for the freedmen as well as the slaves; and he failed to admit the possibility that Dexter’s death was a suicide that could not have been prevented, a question that could perhaps have been clarified if the quaestio process had first run its course. Instead, the Senate had rushed to judgment, pre-empting the verdict of the quaestio both on the cause of death and the liability, if any, of the familia. On the issue of principle concerning the freedmen, Pliny also failed. Although he believed the freedmen innocent, he was forced to acquiesce in their punishment. Thus not only was Cassius’ legacy of severitas with regard to the fate of the slaves left intact, but the Neronian precedent of clemency towards the freedmen was also, arbitrarily, reversed.

7.