Clementia has long been viewed as one of the small number of ideologically significant virtues advertised during the principate of Tiberius.Footnote 1 Clementia appeared paired with moderatio in a series of dupondii which have been variously dated to the early, middle and late Tiberian principate.Footnote 2 The senate claimed clementia for itself in the SCPP ll. 90–2, stating that this clementia had been learned from the ancestors and from Augustus and Tiberius, and Tacitus reports that in a meeting in a.d. 28 (in Tiberius’ absence) the senate proposed altars to Clementia and Amicitia, ‘although they were consulted on various different matters’ (Ann. 4.74.3).Footnote 3 Clementia also appears regularly in the literature of the Tiberian period and in the later accounts of Tacitus and Suetonius.Footnote 4
Why, then, does Velleius Paterculus not once attribute clementia to Tiberius? He attributes clementia to others but the word is not used of Tiberius, his attitude or his actions.Footnote 5 This omission is deliberate and should strike readers as significant. Almost without exception, scholarship has failed to take note of it.Footnote 6 The absence of Tiberian clementia from Velleius’ text creates a paradox: clementia appears to have been an important virtue advertised during Tiberius’ principate but it is not attributed to Tiberius in a text widely believed closely to reflect Tiberian rhetoric.
The answer I propose rests on my examination of Velleius’ references to severitas and of the contested ownership and exercise of clementia during Tiberius’ principate. In what follows, I document ideas about the administration of justice (and especially punishment) in Tiberian Rome. The article has five closely related parts. I begin (Section I) with the puzzling paradox of Velleius’ omission of clementia from those virtues he attributes to Tiberius in his text. I argue that Velleius’ short work manifests considerable circumspection about the exercise of imperial clementia and shows a consistent preference for severitas. Having established Velleius’ interest in severitas, I then turn to his depiction of Tiberius (Section II). I note that neither clementia nor severitas is explicitly attributed to Tiberius but that, instead, Velleius emphasizes Tiberius’ ability to punish appropriately in accordance both with the crime committed and with his rôle as dux or iudex. I conclude that Velleius was speaking to two different, but related, controversies. Speaking to the question of which virtue should guide senatorial decision-making, Velleius advocated severitas. Speaking to the question of the princeps’ involvement in judicial processes, Velleius presented a reassuring picture of Tiberius as a capable and experienced judge of when and how to punish.
Velleius’ thinking about clementia, severitas and the princeps’ rôle in the administration of punishment is important in and of itself, but it also clues us into a much bigger debate about the administration of justice in Tiberian Rome, one which we can track throughout his regime. The political and legal developments which informed Velleius’ picture are the subject of the third and fourth parts of my argument. Here, I examine ideas about the exercise of clementia and severitas expressed in the SCPP (Section III) and Tacitus’ account of the trial of Clutorius Priscus (Section IV). I argue that the trial of Clutorius Priscus and its immediate aftermath marked a watershed — an attempt to formalize the exercise of clementia by the princeps. Prior to the trial, clementia could be represented in the SCPP as ‘co-owned’ by the senate and the princeps. Until this trial and its aftermath it was not clear at what point during legal proceedings the clementia of the princeps would come into play. After this trial, a nine-day hiatus was introduced between sentencing and the imposition of punishment. During this time, the princeps could act to modify, alleviate or waive a penalty. Instituted as an attempt to accommodate the increasingly absent princeps within legal processes at Rome, the procedure effectively formalized a view of punishment — severitas should be the province of the senate, clementia that of the princeps. Not everyone agreed. Incidental details recorded in Dio and Suetonius suggest that the last years of Tiberius’ life witnessed ongoing attempts to resist a culture of severitas.
Tacitus saw all of this very clearly. The final section of my argument (Section V) demonstrates Tacitus’ acute observations about clementia and severitas in Tiberian Rome. For Tacitus, severitas without the possibility of clementia was saevitia. In his view, when, after Clutorius’ trial, the senate abrogated the responsibility to show clementia to Tiberius and Tiberius himself refused to exercise it, the senators were implicated in the perversion of the administration of justice, behaviour which he characterized as the saevitia of the sycophants. Tacitus’ comparison of the trials of Clutorius Priscus and Aelius Sosianus demonstrates clearly his awareness of the importance of the debates about punishment that had characterized Tiberius’ principate.
That Velleius and his contemporaries should be interested in the administration of punishment should not surprise us. In many ways Tiberian Rome became, under less than ideal circumstances, the ideal venue for thinking about punishment — or, more specifically, the relationship between crime and punishment. A growing reliance on cognitio legal procedures (which gave the judge(s) greater opportunity to intervene to determine penalties), the rise of maiestas trials heard before the senate, and an expectation that the princeps himself could intervene to waive or moderate a penalty imposed by the law or recommended by the senate created a need for a rhetoric (and later a philosophy) about punishment which could both accommodate the strict application of the law and also justify intermittent acts of clemency.Footnote 7 Miriam Griffin has shown that discourse about appropriate punishment therefore grew up alongside the growth of cognitio legal procedures.Footnote 8 At the end of the Julio-Claudian period, Seneca's meditation on the rôle of clementia in the imposition of punishment was designed to speak to this new situation.Footnote 9 But it was Tiberian Rome which had been, in many important respects, the coal-face of these legal changes. Tiberian Rome was, moreover, peculiarly well-equipped for debating ethical and moral issues. The practice of declamation, which encouraged the ability to think about complex questions from multiple points of view, flourished in this period.Footnote 10 How, then, did Tiberius and his contemporaries respond to the need to determine and apply punishments in a context in which there was increasing capacity for judicial intervention in the determination of penalties? How were the rôles of both the princeps and the senate in the determination of punishments figured in this rhetoric?
I VELLEIUS PATERCULUS, CLEMENTIA AND SEVERITAS IN TIBERIAN ROME
Clementia and Severitas
Clementia was part of the language of power through which the aspirations and expectations of both princeps and community could be articulated. The uses made of clementia in the late Republic and under the Principate have been extensively documented.Footnote 11 In particular, numerous examples of Tiberian clementia have been hypothesized.Footnote 12 Levick's view that Tiberian clementia was an exclusively domestic (rather than military) virtue which marks Tiberius’ ‘forbearance to the political group that had consistently and ruthlessly opposed his elevation’, has become orthodox:Footnote 13 clementia ‘operates primarily in civic and political contexts, especially legal or quasi-legal contexts’.Footnote 14 Levick herself was drawing on a long-standing debate about the dating of the famous ‘CLEMENTIA’ dupondii — a debate which revealed the number of events during Tiberius’ regime which might arguably have been commemorated as acts of clementia.Footnote 15 This clementia marked the princeps as one superior to the rest of his community and as holder of absolute power.Footnote 16 Clementia was a controversial virtue since it seemed to emphasize the condescension of the princeps in ways which might cause offence to some, but supporters of the principate were also able to draw upon the virtue's powerful positive associations.Footnote 17
When exercised in relation to punishment, clementia could be manifest in a willingness to forgo the strict application of punishment dictated by an individual's crime through waiving or moderating the penalty imposed by the statute law or the judges.Footnote 18 The vices which indicated a lack of clementia were crudelitas or saevitia: not severitas.Footnote 19 Severitas, which was also a virtue, offered an alternative approach, one which indicated an uncompromising strictness and, in the administration of punishment, a desire to follow the letter of the law.Footnote 20 The juxtaposition of clementia and severitas found early expression in Roman thinking in attempts to articulate the virtues of the good parent. Contrasting styles of parenting — particularly of fatherhood — inform the humour of much of Roman comedy. The pater severus of Roman theatre was characterized by his strictness with his children (especially his son) and his old-fashioned virtue.Footnote 21 An equally compelling paradigm had emerged in the legal sphere. In Stoic thought, severitas was associated with the strict application of the law.Footnote 22 The iudex severus was characterized by his ability to judge rationally — especially without anger.Footnote 23 The question of whether and when to exercise clementia or severitas underpinned thinking about punishment at Rome. Sallust's debate about the punishment of the Catilinarian conspirators became a fundamental point of reference in later considerations of these issues.Footnote 24 Cicero thought that severitas had an important rôle to play in the defence of the res publica.Footnote 25 When, under Augustus and Tiberius, the princeps himself came to be viewed as Father of his whole community (Pater Patriae) as well as judge and moral exemplum, thinking about the pater severus and the iudex severus was ripe for convergence.
Clementia and Severitas in Velleius Paterculus
Velleius’ omission of clementia from among the virtues of Tiberius demands explanation. Two contradictory solutions to this question have previously been offered. Kuntze has suggested that, under Sejanus’ rule of terror, there was simply no evidence of Tiberius’ clementia.Footnote 26 The death of Livia and the persecution of Agrippina and her family also left Velleius uncertain about the future.Footnote 27 In this context, even supporters of Tiberius tactfully left clementia unmentioned.Footnote 28
An alternative view has been put forward by Dowling who argues that, far from shying away from Tiberian clementia, Velleius gives eyewitness testimony to Tiberius’ exercise of the virtue:
Velleius presents Tiberius’ successes through submissiones and clementiae and offers a portrait of Tiberius that emphasizes the same qualities in the princeps that the senate in the senatus consultum and Tiberius on his own coins was advertising: clementia, moderatio, indulgentia and iustitia, but not severitas.Footnote 29
Neither of these positions is entirely satisfactory. Velleius’ attribution of clementia to Scipio, Julius Caesar, Cassius (and Brutus), and Augustus, underlines, rather than masks, his omission of it with reference to Tiberius. The fact that clementia is deliberately omitted is borne out not only by its attribution to other individuals, but also by Velleius’ use of ignosco. Velleius pairs ignosco and clementia in the cases of Julius Caesar (2.56.1, 3) and Augustus (2.83.2) but uses ignosco of Tiberius (4.114.3) without the accompanying virtue. The appearance of the altar to Clementia in a.d. 28 and Suetonius’ report (Tib. 53) that Tiberius retrospectively claimed clementia for himself in relation to his treatment of Agrippina during these years also suggest that it was part of the public discourse at the time that Velleius was writing. Velleius’ own determination to celebrate as many of Tiberius’ virtues as he possibly could — even stretching credulity to praise his munificent building programme (Vell. 2.130.1) — suggests moreover that supporters of Tiberius might have felt entitled to claim it on his behalf.Footnote 30 Dowling's suggestion that Velleius describes Tiberius exercising clementia without using the word is certainly possible but the omission of the actual word, especially when it is used of others in the same text, remains to be addressed.
In Velleius’ narrative those who exercise and those who receive clementia operate in a context dictated by the exigencies of wartime and by the politics of civil war. Thus, the final destruction of Carthage represents a monument to the virtus of the younger Scipio, where before, the city had been a monument to the clementia of the elder Scipio (1.12.4–5).Footnote 31 Julius Caesar's clementia is referenced in the description of his behaviour after his victory (2.56.3) and his murder is represented according to the (by now) conventional view that Caesar had exercised clementia against his enemies but received none in return (2.57.1). Clementia is next attributed to Cassius and, by implication, to Brutus in Macedonia (2.69.6).Footnote 32 Brutus’ reputation for clementia was celebrated, but clementia was not routinely associated with Cassius — a fact which Velleius highlights.Footnote 33
Augustus is associated with clementia five times. After defecting from Antonius, Plancus joined the Young Caesar and Velleius criticizes him for later representing himself as meriting this exercise of clementia (2.83.2). The victory over Cleopatra and Antonius at Actium is ‘characterized by great clemency’ (2.86.2 ‘victoria vero fuit clementissima’). Likewise, the decision to pardon Sosius is represented as the Young Caesar ‘wrestling with his conscience’, a wrestle which ‘emphasises the admirableness of his decision to be merciful’ (2.86.2).Footnote 34 Velleius’ summary of the Young Caesar's actions after the victory at Alexandria again emphasizes his clementia (2.87.2) and, finally, the Young Caesar's treatment of Iullus Antonius is held up as a prime example of the clementia he extended to his enemies in civil war: ‘Iullus Antonius, singulare exemplum clementiae Caesaris’ (2.100.4).Footnote 35
If Dowling is right to see in the submission of the Cauchi (2.106.1) and the Pannonians (2.114.4) examples of Velleius’ depiction of Tiberius as possessing and displaying clementia (although the word itself is not used), then I note that this clementia is displayed in an ‘old-fashioned’ military context.Footnote 36
There is no account of clementia in a domestic judicial context in Velleius’ surviving text. What follows? Either Velleius deliberately avoided mentioning judicial clementia because he shied away from attributing to Tiberius a virtue that he manifestly did not display in the years Velleius was writing. Or, Velleius deliberately avoided mentioning judicial clementia because he had something to say about clementia itself — perhaps he even disapproved of its use. Careful rereading of two passages from his narrative seems to bear this out. Velleius’ praise for the advice of Hirtius and Pansa, suggests that he had reservations about Caesar's exercise of clementia:
2.57.1 Laudandum experientia consilium est Pansae atque Hirtii, qui semper praedixerant Caesari ut principatum armis quaesitum armis teneret. Ille dictitans mori se quam timere malle dum clementiam, quam praestiterat, expectat, incautus ab ingratis occupatus est …
As events showed, praise is due to the advice of Hirtius and Pansa, who had always declared to Caesar that he should hold by arms a principate won by arms. Caesar kept saying that he preferred death to living in fear, and, while he was expecting to meet in turn the clementia he had himself shown, he was caught off guard by ungrateful wretches.Footnote 37
The actions of Iullus Antonius against Augustus seemed amply to confirm his scepticism about clementia:
2.100.4 Tum Iullus Antonius, singulare exemplum clementiae Caesaris, violator eius domus, ipse sceleris a se commissi ultor fuit …
Iullus Antonius, who was the prime example of Caesar Augustus’ clemency, then became a defiler of that man's household and was himself the avenger of the crime he had committed.
Velleius’ treatment of ingratia seems also to caution against clementia. In his examination of the emperor as gift-giver, Roller highlights Velleius’ emphasis upon the reciprocity expected in the relationship between pardoner and pardonee which was brought about by Caesar's and Augustus’ gift-offering of clementia.Footnote 38 Clementia offered as the princeps’ gift gave rise to an expectation of ensuing gratitude. But Velleius’ emphasis is entirely on the ingratia of Caesar's murderers and opponents of Augustus and Tiberius.Footnote 39 In the passages above he makes considerable effort to show that an expectation of reciprocal clementia/gratia is fundamentally flawed. Velleius’ point might therefore equally be read as a warning: clementia exercised against opponents in civil war does not (in reality) compel gratitude (even if it should).
One final example of Velleius’ scepticism about the use of imperial pardon remains to be examined. I noted above Velleius’ coupling of clementia and ignosco in the cases of Julius Caesar and Augustus. At 2.125.3, he describes the various ways in which Tiberius, Germanicus and Drusus responded to the uprisings of a.d. 15. The passage is an important one and one to which I shall return in my examination of Velleius’ presentation of Tiberius. Here, I note the way in which Germanicus’ approach is contrasted with that of Drusus:
Quo quidem tempore ut pleraque ignovit Germanicus, ita Drusus, qui a patre in id ipsum plurimo quidem igne emicans incendium militaris tumultus missus erat, prisca antiquaque severitate usus ancipitia sibi maluit tenere quam exemplo perniciosa, et his ipsis militum gladiis, quibus obsessus erat, obsidentes coercuit, singulari adiutore in eo negotio usus Iunio Blaeso, viro nescias utiliore in castris an meliore in toga.Footnote 40
Drusus had been dispatched by his father straight into the conflagration of this military revolt, now ablaze with many fires, and, while Germanicus was forgiving in most cases at this time, he instead applied the old, traditional severity, <preferring to face> a situation dangerous to himself than <set> a ruinous precedent, and with the very swords of the soldiers by whom he had been besieged he suppressed his besiegers. He had remarkable assistance in this business from Junius Blaesus, in whose case one could not tell whether his usefulness in the military sphere exceeded his efficiency in civilian life.
Two approaches are here contrasted — pardon (pleraque ignovit) and severitas. Velleius’ approval of the approach taken by Drusus is evidenced not only in his use of prisca and antiqua (words which carry special value in his narrativeFootnote 41 ) and in his association of Drusus with Tiberius and Junius Blaesus (individuals of whom he approves), but also in his statement that Drusus refused to set a dangerous precedent. For, in Velleius’ text, that is precisely what pardon could do. Not only had Caesar's and Augustus’ clementia put them in danger, but Tiberius himself was very cautious about forgiving breaches of discipline among his soldiers and did so only when no harm would come from the example thus set (2.114.3 discussed below) ‘… non sequentibus disciplinam, quatenus exemplo non nocebatur, ignovit’ (‘he was tolerant of those who did not adhere to discipline, provided that no harm would come from the precedent’). The repetition of ignosco at 2.114.3 and 2.125.4 forcefully underlines Germanicus’ misapplication of pardon. Only the severitas of Drusus avoided setting a pernicious example.
Velleius’ approval of Drusus’ severitas against rebellious Roman soldiers suggests that he was interested in these contrasting approaches to discipline and punishment. The first surviving reference to severitas in Velleius’ narrative occurs at 1.6.3. In this passage, severitas, associated with justice and the rule of law, generates success. Lycurgus (described as one of the clarissimi of Greece) was the author of laws ‘most severe and most just’. When Sparta was bound by those laws, she excelled. ‘Olden-days’ Rome is similarly characterized by severitas in Velleius’ narrative.Footnote 42 Here too, Velleius insists on the connection between severitas and the just exercise of the law in relation to punishment. Thus, he praises the severitas of the old law courts since they convicted on the basis of the defendant's motive rather than the scale of the crime (2.8.1) and severitas informs his picture of the prisca and antiqua res publica recalled after the civil wars of the late Republic (2.89.3–4). In this passage Velleius concentrates predominantly on what has happened to restore the rule of law.Footnote 43 Vis is restored to the laws, auctoritas to the judges, maiestas to the senate, imperium to the magistrates, securitas of person and private property are ensured, laws are emended with an eye to utilitas, and the lectus of the senate is carried out ‘without harshness but not without rigour’ (‘senatus sine asperitate nec sine severitate lectus’).
Severitas also characterizes the behaviour of particular individuals in Velleius’ text. Early in his narrative (2.5.2–3), he compares the behaviour of two generals. Quintus Macedonicus’ ‘command was characterized by extreme severity’ (‘tam severum … imperium fuit’) and ‘his fame in Spain rested on the courage and severity of [a single command given to his troops]’ (‘hic virtute ac severitate facti … in Hispania fuit clarissimus’). Juxtaposed with him, Aemilius Paulus’ son, Fabius Aemilianus’ ‘fame … rested on his exemplary discipline’ (‘at Fabius Aemilianus Pauli exemplo disciplinae … fuit clarissimus’). In Velleius’ example, both generals successfully achieve victory and fame, the one through severitas and the other through the exercise of discipline. The force of the antithesis between the sources of the two generals’ fame is not entirely clear, especially since severitas and disciplina seem to be treated as closely related concepts. Elefante's suspicion of a lacuna may be correct, or the contrast may be rather between the exceptional singularity of Macedonicus’ act of severitas and Fabius’ more sustained disciplina.Footnote 44 An audience versed in Livy, with his competing models of generalship, might well have expected something different.Footnote 45
Severitas and liberalitas are both lauded as characteristic of Augustus’ own response to sedition among his troops in a passage which mirrors Velleius’ description of the actions of Tiberius, Germanicus and Drusus in quelling the mutiny of a.d. 15 (2.125):
2.81.1 Subita deinde exercitus seditio … partim severitate, partim liberalitate discussa principis, …
There followed a sudden mutiny of the army … it was put down partly by severity and partly by generosity on the part of the princeps.Footnote 46
At Rome, the same ‘old fashioned’ severitas attributed to Drusus at 2.125.3 is also characteristic of C. Sentius Saturninus whose actions as consul during Augustus’ absence in 19 b.c. receive a lengthy and laudatory description in the narrative:
2.92.1–2 Tum Sentius, forte et solus et absente Caesare consul, cum alia prisca severitate, summaque constantia, vetere consulum more ac severitate, gessisset, protraxisset publicanorum fraudes, punisset avaritiam, regessisset in aerarium pecunias publicas, tum in comitiis habendis praecipuum egit consulemFootnote 47
At this time Sentius, who happened to be sole consul in Caesar's absence, had generally been exercising old-fashioned severity and unwavering firmness, in the manner of the consuls of old, bringing into the open the fraudulent practices of the tax collectors, punishing their greed and restoring public money to the treasury. In particular, he truly showed himself a consul in presiding over the elections.
This depiction of the consul at Rome explores an approach characterized by severitas in unprecedented detail and in a domestic civilian context. The actions for which he is praised are the pursuit, exposure and punishment of fraud carried out by the tax collectors and the conduct of elections, in particular, the electoral campaigning of Egnatius Rufus (2.92.3–5). His actions are celebrated as exemplary (‘praeclarum excellentis viri factum … ne fraudetur memoria’, ‘The exemplary measure taken by the excellent man … must not be cheated of notice’) and on the grounds that they are comparable to the actions of the consuls of old (‘quod ego factum cuilibet veterum consulum gloriae comparandum reor’, ‘This, I think, invites comparison with any of the glorious actions taken by the consuls of old’). Velleius makes clear that Egnatius Rufus was a popular agitator, and lists him alongside those ‘who did not like the most happy state of things’ (‘qui hunc felicissimum statum odissent’, 2.91.2). The consul's actions were, however, prompted by the illegality of Egnatius’ actions, as Pettinger has demonstrated.Footnote 48 It was a breach of the lex annalis which justified Sentius Saturninus’ intervention and he acted within the law in claiming that he would refuse to report Egnatius Rufus’ election should it take place. Severitas comes into play in this, Velleius’ longest consideration of the virtue, in defence not only of the principate but of the rule of law.
Finally, severitas is also characteristic of Sejanus. Velleius’ pen-portrait of Sejanus sets him in the tradition of the great ‘helpers’ of great men.Footnote 49 Sejanus, too, possesses prisca severitas.Footnote 50 Velleius’ defence of Sejanus sits awkwardly in his text and reads like the argument of a political pamphlet.Footnote 51 Woodman has argued that the text ‘has clearly been inserted to meet an immediate need, to counter contemporary criticism of Tiberius’.Footnote 52 He views this criticism as centred on Sejanus’ novitas and his position of influence under Tiberius. I think we may go further. Tacitus (Ann. 4.1.1) famously identified the year a.d. 23 as a turning point in Tiberius’ regime: ‘cum repente turbare fortuna coepit, saevire ipse aut saevientibus viris praebere’ (‘fortune started to turn disruptive and the man himself savage — or to present control to savages’). The reason for this, Tacitus claims, was the influence of Aelius Sejanus. The cruelty (crudelitas, saevitia) of Sejanus is a theme in Tacitus’ narrative as it could not have been in Velleius’. But, Velleius’ association of Sejanus and prisca severitas is instructive. He includes Sejanus alongside those praiseworthy individuals who practice severitas — a virtue that he goes to considerable lengths to advocate in his text. His description of Sejanus therefore not only counters contemporary criticism of Tiberius, but responds to criticism of an approach to the administration of justice. What Tacitus condemned as the saevitia of Sejanus could be represented before a.d. 31 as justifiable severitas. This is not to say that Velleius was a supporter of Sejanus.Footnote 53 Rather, it suggests that Sejanus was amongst those supporters of Tiberius who subscribed to a preference for severitas.
In concluding her treatment of Velleius’ text, Dowling comments on Velleius’ advertisement of the princeps’ clementia, moderatio, indulgentia ‘but not severitas’.Footnote 54 Before turning to Velleius’ treatment of Tiberius (below), I think it is important to note the extent to which Velleius’ text as a whole is in fact deeply concerned to promote severitas and circumspect about the usefulness of clementia. A coherent position on clementia and severitas emerges. On the one hand, Velleius viewed clementia as a virtue to be exercised primarily against one's enemies in the context of war (including civil war). At the same time, he expresses reservations about the exercise of clementia in civil war, noting that both Caesar and Augustus were betrayed by those to whom they had shown clementia. Severitas, on the other hand, is a wholly positive virtue in Velleius’ text.Footnote 55 It could be exercised in either the military or the civil sphere and is particularly associated with the rule of law and the appropriate punishment of illegality. Severitas is a characteristic of good leadership in Velleius’ narrative, exercised by praiseworthy generals in the field and consuls at Rome. It is shown to be both an effective and an appropriate virtue when brought to bear against threats to the community. Severitas is associated with successful discipline and the suppression of opposition whilst, at the same time, the ability of clementia to check opposition is called into question.
Velleius’ approval of severitas is signalled not only by his attributing it to Augustus, C. Sentius Saturninus, Drusus and Sejanus, but also by his insistence that severitas is an old-fashioned virtue (prisca and antiqua), associated with Rome's glorious and virtuous past. Velleius’ own preference for severitas over clementia seems to be borne out in the stern judgements that he passes on opponents of the regime and those from within the domus Augusta itself whose behaviour represented a challenge to Tiberius.Footnote 56 Again and again in Velleius’ text, punishment follows strictly upon — and is represented as proportionate to — the crime committed. Consider his judgements on the enemies of the new regime. Decimus Brutus (2.64.1) ‘paid a well-justified penalty to Gaius Julius Caesar, who had deserved the best from him’ (‘iustissimas … optime de se merito viro C. Caesari poenas dedit’). He judges Lepidus (whose plot against Augustus was discovered by Maecenas) to have ‘paid the penalty for his ill-conceived plans’ (‘male consultorum poenas exsolvit’, 2.88.3); he states that Murena and Caepio ‘suffered under the law what they had intended to inflict by violence’ (‘quod vi facere voluerant, iure passi sunt’, 2.91.2) and that Egnatius Rufus ‘died a death most appropriate to his life’ (‘mortem dignissimam vita sua obiit’, 2.91.4). Velleius is interested not only in the ‘deservedness’ and proportionality of the punishment (punishment which fits the crime), but also in its legality. Thus, he is concerned to demonstrate that Caesar was avenged through the operation of the Pedian law (2.69.5) which banned his murderers from fire and water, that Murena and Caepio met their fate ‘under the law’, and that the actions taken against Egnatius Rufus were lawfully within the consul's remit.
To whom was this argument addressed? Velleius’ treatment of severitas and clementia in his narrative offered a considered response to the question ‘which virtue should govern the adjudication of punishment?’ In Part III of my argument I shall suggest that this question continued to be controversial in Tiberian Rome. We should, I believe, think of Velleius here as primarily in conversation not with the regime but with his fellow senator-judges.
II VELLEIUS’ TIBERIUS AS BOTH PARDONER AND PUNISHER
What, then, did Velleius have to say on the related question of the rôle of the princeps in decision-making when it came to punishment? Velleius’ Tiberius does not explicitly exercise either clementia or severitas in the surviving text but he does (under certain conditions) forgive (ignovit) and he does issue ‘severe punishments’. In this section, I will argue that Velleius avoided characterizing Tiberius’ judgement as exclusively guided by either clementia or severitas, but offered his readers instead reassuring vignettes of Tiberius as a capable adjudicator of punishments who made use of a full range of penalties. In the next sections, I want to suggest that Velleius’ picture of Tiberius was a product of, and sought to make a contribution to, a discussion about the rôle of the princeps in punishment which was informed by developments in legal procedure and in the rhetoric of clementia and severitas which took place after the trial of Clutorius Priscus. In each case I note that Tiberius is shown to exercise good judgement about when, whether and how to punish.
These abilities are first demonstrated in his disciplining of his own troops (2.114.3):
… non sequentibus disciplinam, quatenus exemplo non nocebatur, ignovit; admonitio frequens, interdum et castigatio, vindicta tamen rarissima, agebatque medium plurima dissimulantis, aliqua inhibentis.
He was tolerant of those who did not adhere to discipline, provided that no harm would come from the precedent; his admonitions were frequent, his reprimands infrequent, and his vindicta very rare; and he followed the middle path, turning a blind eye to many things but checking certain others.
Velleius establishes Tiberius operating across a wide range of possible responses to wrong-doing, from ‘pardon’ (with the important caveat that no harmful precedent be set) to vindicta. Between these two extremes, his correction mainly took the form of admonitions (admonitio frequens) but he also castigated. In the fourth section of my argument I will suggest that the description of circumscribed pardon used here by Velleius (one that sets no harmful precedent) drew upon a rhetoric about punishment which sought to advocate a middle way, acceptable to advocates of both clementia and severitas, which was current in Tiberian Rome. Vindicta carried overtones not just of punishment, but of retribution, avenging a wrong, and the restoration of the proper state of affairs.Footnote 57 Augustus had famously written of himself as a young man ‘rem publicam … in libertatem vindicavi’ — a reference which implied that his action was taken in defence of the state.Footnote 58 Velleius’ contemporaries Ovid and Valerius Maximus both associated vindicta with the defence of the law.Footnote 59 Both also associated it with severitas.Footnote 60
At Vell. 2.114.3, vindicta represents one extreme of justifiable punishment (with conditional pardon as the other extreme) and it is therefore apt both that it falls within the range of punishments which Tiberius might impose and that it is rarely exercised. Overall, the passage lauds Tiberius’ ‘middle course’. He is praised for avoiding the extremes of ‘never punishing and always punishing’.Footnote 61 In other words, for adopting a ‘middle way’ between the two extremes of always applying clementia or always applying severitas.
Velleius returns to the image of Tiberius as a judge of when to pardon and when and how to punish twice more. In a fragmentary passage describing Tiberius’ achievements (2.129.1–4), he reports that Tiberius acts with gravitas as senator and iudex (not as princeps) when he hears cases. His attitude is characterized by scrupulousness or firmness, indeed he shows ‘more firmness’ than another quality (plausibly severitas)Footnote 62 which has been lost in a lacuna in the text (2.129.2). This is followed by praise of Tiberius for acting quickly to suppress an individual who demonstrates ingratia (2.129.2).Footnote 63 The picture is primarily intended to reassure. Velleius shows that, as senator and iudex, Tiberius takes the task of judgement and punishment very seriously and, again, that he knows when and how to act to address wrongdoing appropriately. Velleius’ choice of words here is important. Gravitas is specifically identified as having been restored to the iudices under Tiberius (2.126.2). That is, gravitas is the characteristic of all iudices in Tiberian Rome. By describing Tiberius acting ‘with more firmness’ (pressius) Velleius deliberately stops short of claiming that Tiberius exercises severitas when hearing cases at Rome. Woodman's suggestion that the original passage may have read ‘cum quanta gravitate ut senator et iudex, non ut princeps, <et dux quaestionibus praeest>, et causas pressius audit quam <severius! quam> celeriter …’ would, if correct, present Tiberius treading a fine line between ‘firmness’ and severitas. Thus pressius and (Woodman's suggested) severius do not operate in contrast to each other but rather pressius (like asperitas at 2.89.4Footnote 64 ) refines severius: the law is firmly, but not severely applied.
The treatment of ingratia in the following sentence suggests an equally compelling desire to reassure the reader about Tiberius’ use of clementia. Ingratia reminds the reader of the punishment of Caesar's ‘ungrateful’ murderers and of the self-inflicted punishment of Iullus Antonius, suggesting that the unidentifiable individual being punished here not only posed a personal threat to Tiberius, but had been the recipient of clementia from him.Footnote 65 In keeping with his general view of imperial clementia, Velleius concentrates not on the exercise of clementia (which he does not mention) but on Tiberius’ capable handling of the fall-out — ingratia and sedition. Between them, these two sentences offer a picture of Tiberius in a domestic context which deliberately avoided commenting on whether his policy was guided by clementia or severitas by concentrating instead on the seriousness with which he approached his task and on his capable handling of sedition.
My final passage shows Tiberius again in a military capacity. Here, however, we see Tiberius as princeps-imperator, responding not to a breach of discipline but to a revolutionary attack on his community. At 2.125.3–5 describing the responses of Tiberius, Germanicus and Drusus to the mutinies of a.d. 15, Velleius lists ‘severe punishment’ as one of the responses that Tiberius deploys:
Sed haec omnia veteris imperatoris maturitas, multa inhibentis, aliqua cum gravitate pollicentis, et inter severam praecipue noxiorum ultionem mitis aliorum castigatio brevi sopiit ac sustulit.
But all this the mature approach of a seasoned commander in a short time calmed and brought to an end. He checked many of their actions, made some promises where his dignity permitted it, and while his punishments were severe for the most serious offenders, others received only mild reprimands.
That the veteran general of this passage is Tiberius seems manifestly clear despite Velleius’ decision not to name him. The situation in which he acts is represented as a revolutionary movement directly in conflict with the new regime. The soldiers demanded a ‘new leader, a new status and a new res publica’ (2.125.1) — precisely the kind of threat to the res publica in which severitas was appropriate. Again, however, Velleius depicts Tiberius as ably discriminating in his distribution of punishments according to the scale of the crimes committed. Tiberius’ action is characterized by a combination of experience, coercion, promises and punishment suited to the scale of the crime (punishment that is ‘appropriate’). The passage continues the investigation of punishment by comparing the tactics of Germanicus (who exhibits mainly pardon (ignovit)) and Drusus (who demonstrates good old-fashioned (prisca antiquaque) severitas). Tiberius alone exemplifies the ability both mildly to reprimand and severely to punish. The general who acted as pardoner and punisher of those under his command provided the quintessential model of a leader empowered to exercise discretion in relation to punishment.Footnote 66 For a senatorial élite coming to terms not only with its increasing responsibilities in the determination of discretionary penalties, but also with the princeps’ own interventions into the judicial processes this may have been a good model to ‘think with’.Footnote 67
Velleius’ picture of Tiberius as pardoner and punisher is carefully constructed. And, although the material is fragmentary, it appears to differ according to whether Tiberius is acting as princeps [et dux] or senator et iudex (2.129.2).Footnote 68 As a general, Velleius documents Tiberius’ pursuit of a ‘middle way’ which avoided exclusively committing to one or other extreme. He does pardon (ignovit) but only circumspectly, where no harmful precedent will be set. He does issue severe punishment (severam … ultionem) but only for the worst offences and as part of a range of responses which included admonition and mild chastisement. At home, Tiberius treated his rôle as iudex with appropriate gravitas after having ensured that gravitas was ‘restored’ to all the iudices during his principate (2.126.2). He acts ‘more with firmness’ than with another unknown quality. Overall, it is Tiberius’ ability to use his discretion in regards to punishment with discernment which is reassuringly emphasized.
In Tiberius’ principate ‘right is honoured, wrong is punished’ (2.126.3 ‘honorantur recta, prava puniuntur’). Velleius represents Tiberius making good decisions about pardon and punishment — operating over the whole range of remedies from pardon to vindicta. This image of the princeps is central to Velleius’ representation of Tiberius as princeps optimus (2.126.4). In Tiberius’ principate there is benevolence and honour (for the worthy) but there is also punishment slow and sure for those who are malus (‘honor dignis paratissimus, poena in malos sera, sed aliqua’). The princeps is the great exemplar who teaches the citizens how to behave ‘rightly’ by behaving rightly himself even more than by commanding (‘nam facere recte civis suos princeps optimus faciendo docet, cumque sit imperio maximus, exemplo maior est’). Valerius Maximus begins his work with a similar image of the princeps who most benignly fosters virtue but most severely (severissime) punishes vice.Footnote 69 A compelling image of the princeps was being propounded and one which justified his ability to both punish and pardon. In what follows, I shall suggest that Velleius’ views were more widely shared and represent an approach to punishment that sought to distinguish between the rôles of the senate and princeps in the administration of punishments.
III CLEMENTIA AND SEVERITAS IN TIBERIAN ROME BEFORE THE TRIAL OF CLUTORIUS PRISCUS
Velleius’ treatment of clementia and severitas in his narrative is focused around his response to two key questions. What principles should guide decision-makers determining punishment — clementia or severitas? And by whom should these principles be exercised? His response is both considered and nuanced. This next section of my argument is concerned to show how Velleius’ ideas map onto a wider discussion of these central questions. I will suggest that Velleius’ preference for severitas and his emphasis on Tiberius’ abilities as an adjudicator of punishment reflect a particular ‘take’ on the rôles of the senate and the princeps in decision-making which was developing among Tiberius’ supporters in the 20s — the senate should act with severitas, the princeps alone should have discretion in relation to the determination of punishment. I begin with an examination of the SCPP before turning to sketchy evidence in Suetonius and Dio which suggests that the key questions that concerned Velleius remained unsettled throughout Tiberius’ principate.
In a.d. 20, when Cn. Piso was brought to trial, the senate claimed both severitas and clementia for itself. This clementia was learned from the ancestors and from Augustus and Tiberius. Lines 90–2 read:
item senatum memorem clementiae suae iustitiae/[q(ue) <atq>(ue) animi magnitudinis quas virtutes {qu]om} a maioribus suis accepisset tum praecipue ab divo Aug(usto) / [et Ti(berio) Caesare Aug(usto) principibus suis didicisset …
That the senate, mindful of its own clemency, justice, (and) magnanimity, which virtues it learned from its forebears and especially from the deified Augustus and Ti. Caesar Augustus its principes decreed …Footnote 70
There follows a list of concessions and remissions granted by the senate to Piso's son and to Plancina. Plancina is specifically mentioned as relying on the pity (misericordia) of the princeps and the senate. There is no mention of clementia in relation to Piso himself. Instead, Piso, is subjected to the senate's severitas:
ll. 71–3: Quas ob res arbitrari senatum non optulisse eum se de[b]itae poenae sed maiori et quam inmin<e>re sibi ab pietate et severitate iudic[anti]/um intellegeba{n}t subtraxisse
That for these reasons the senate deemed that he did not subject himself to the punishment he deserved, but that he withdrew himself from a greater one and one that he realized was threatening him from the devotion and severity of his judges;
The imposition of further penalties on Piso and his memory follow. Clementia and severitas thus characterize — and distinguish between — the responses offered by the senate to the charges in each instance. Severitas for Piso, clementia and humanitas for his wife and son. Both virtues as they appear in this text require careful consideration.Footnote 71
Severitas, coupled with pietas, is used in the SCPP to explain and justify the imposition of exemplary punishments on Piso after he had committed suicide. An important statement about the relationship between crime and punishment is being made. The senate deemed that, in killing himself, Piso upset the relationship between crime and punishment: ‘he did not subject himself to the punishment he deserved’ (l. 71). The pietas and severitas of his judges would — it is claimed — have imposed a greater penalty. The importance of re-establishing the right relationship between crime and punishment is paramount in this section. Through suicide, Piso had avoided the punishment that his actions merited. The imposition of further punishments ‘corrects’ this imbalance. Pietas and severitas together result in the imposition of the right or appropriate punishment. In the SCPP, pietas is the virtue of parents towards their children (l. 124) and the virtue owed to parents by children (l. 119). The designation of Tiberius as pater optimus (l. 58) allowed a natural extension of this pietas to the princeps (l. 155).Footnote 72 Furthermore, the SCPP thanks the equites for loyally understanding ‘how great a matter, and how greatly relevant to everyone's safety and devotion (pietas), was being discussed’ (ll. 152–3) and thanks the soldiers for their pietas to the domus Augusta: fides and pietas to the domus ensure the safety of the state (ll. 160–5). Pietas to Tiberius and the domus Augusta goes hand in hand with a desire to see Piso punished and to ensure that his punishments ‘fit’ his crimes. Like so much in this didactic document, the treatment of severitas is exemplary.
At the same time, the punishment of Piso also reveals the extent to which there was considerable subjectivity involved in deciding what it meant for punishment to ‘match’ the crime. The very desire for Piso's punishment to be exemplary meant that punishments that might be represented as the product of pious severitas might also be unprecedented departures from the penalties customarily imposed.Footnote 73 Tacitus, writing as we shall see with a particular interest in these issues, saw not severitas but saevitia in the senate's attitude towards Piso's case (Ann. 3.15.2).
Clementia characterizes the senate's handling of the cases of Piso's son Marcus and his wife Plancina. Clementia is listed with iustitia and magnitudo animi as virtues possessed by the senate, the maiores, Augustus and Tiberius. Together, these virtues make a bold and categorical statement about the rôle of clementia in the relatively new legal sphere it had come to occupy in Tiberian Rome. Clementia might not represent the precise equation of crime and penalty, but it could bring about an outcome that was truly just. Magnanimity of mind, clementia and iustitia could achieve an end as worthy and ‘right’ as that achieved through pietas and severitas.Footnote 74
The senate's eagerness to claim ownership of clementia, magnitudo animi and iustitia could not hide the fact that their own previous findings about Marcus and Plancina were thereby overturned. The inscription makes clear that, unlike in the earlier case of Libo Drusus, in this case the attitude of the princeps was much clearer and easier to ‘read’ when it came to consideration of the case of Piso's wife and son. Tiberius’ intercessions on behalf of Piso's son and his wife occurred at a time when they could have a meaningful impact on their punishment. When was this? The language of the text itself suggests that these intercessions took place after an original punishment had been determined upon by the senate in each instance.Footnote 75 Thus, Marcus is granted inpunitas from his punishment (ll. 100–4) and Plancina has a punishment ‘remitted’ (l. 119). The apparent revision of the penalty against Marcus is represented as the product of the humanitas of the senate and the moderatio of the princeps. In the case of Plancina, the charges against her were gravissuma crimuna (l. 109) — a description surely intended to generate an expectation of corresponding severitas in her punishment. Only the interventions of the princeps on behalf of his mother led to her punishment being remitted. Rhetorically, this both underlined the senate's commitment to severitas and highlighted the extent to which the princeps was responsible for the outcome in her case. But the procedural implications of the treatment of Marcus and Plancina are equally noteworthy. Procedurally, the views of the princeps were accommodated after the senate had come to a decision about punishment. His recommendations modified or overturned the senate's decisions. The fact that the SCPP is decidedly vague about this procedure and mentions no actual sentence recorded against Marcus or Plancina suggests manifest unease about advertising the real consequences of the princeps’ intervention.Footnote 76
The trial of Cn. Piso again turned the spotlight on the relationship between the authority of the senate and the princeps’ clementia in the determination of punishments. Significantly, in a.d. 20, the senate still sought to claim both clementia and severitas for itself. The rhetoric was as flattering as it could be but the determination to ‘own’ clementia is unmistakable. The trial of Clutorius Priscus in the following year is made (in Tacitus’ version) to make use of a similar rhetoric but with a significant difference: in this case, the defence argued that the senate should emulate the moderatio of the princeps by adopting a penalty which was neither too clement nor too severe — but this view was rejected. Is there any evidence for ongoing attempts to assert senatorial ownership of clementia during Tiberius’ principate? In order to answer this question, we must look at the trial of Clutorius Priscus and its aftermath.
IV THE TRIAL OF CLUTORIUS PRISCUS AND ITS AFTERMATH
Tacitus’ Account of the Trial
In a.d. 21 Clutorius Priscus’ decision to read his elegy on the death of Drusus after Drusus had recovered from illness led to his conviction in the senate (Tiberius being absent). The nature of the charges is unclear.Footnote 77 He probably was not charged with maiestas outright, but an extension of the natural construction of maiestas might have been proposed (incorporating the poem which could be viewed as predicting Drusus’ death) specifically in order to open the way to consideration of a more lenient penalty.Footnote 78 Alternatively, the senate may have taken notice ‘ad hoc of an act which was not catered for in any statute’.Footnote 79 In Tacitus’ account, what followed was a debate about the appropriate punishment to be carried out following his conviction. The consul designate, Haterius Agrippa, argued in favour of the death penalty.Footnote 80 Marcus Lepidus, on the other hand, argued for banishment, confiscation of his property and interdiction from fire and water. In the next and final section of my argument, I will suggest that Tacitus was highly attuned to a discussion about clementia and severitas in Tiberian Rome. In this section, I note the similarities between Lepidus’ speech and the rhetoric of clementia and severitas made use of in the SCPP and Velleius’ narrative. I do not, of course, claim that Tacitus has reproduced contemporary speeches verbatim. I do, however, think it is important to look at the use that Tacitus makes of the ideas we have so far been tracking. The account of Clutorius Priscus will thus be discussed in terms of its rhetoric (for which, whatever his information, Tacitus is ultimately responsible) and its outcomes (which are independently attested Suet., Tib. 75). I begin with the rhetoric. Tacitus renders Lepidus’ advocacy in detail:Footnote 81
3.50.1–2 Contra M. Lepidus in hunc modum exorsus est: ‘si, patres conscripti, unum id spectamus, quam nefaria voce Clutorius Priscus mentem suam et auris hominum polluerit, neque carcer neque laqueus, ne serviles quidem cruciatus in eum suffecerint. sin flagitia et facinora sine modo sunt, suppliciis ac remediis principis moderatio maiorumque et vestra exempla temperat et vana a scelestis, dicta a maleficiis differunt, est locus sententiae per quam neque huic delictum impune sit et nos clementiae simul ac severitatis non paeniteat. saepe audivi principem nostrum conquerentem si quis sumpta morte misericordiam eius praevenisset.’
On the other side M. Lepidus embarked in this fashion: ‘If, Conscript Fathers, we look exclusively at how wicked the voice of Clutorius Priscus was when he polluted his own mind and people's ears, neither jail nor the noose nor even servile rackings would be adequate for him. But, if outrages and offences have no limit, while at the same time the princeps’ restraint and your ancestors’ and your own precedents limit reprisals and remedies; and if there is a difference between foolishness and crime; between words and wrongdoings — then there is a place for a proposal whereby this man's felony should not pass with impunity and we for our part should have no cause to repent the combination of clemency and severity. I have often heard our princeps complaining whenever someone, by choosing death, has forestalled his pity.’
Central to the case against a capital penalty was the idea that the senate would emulate the moderatio of the princeps and their ancestors’ and their own precedent. This rhetoric looks very similar to that of the SCPP (ll. 90–2).Footnote 82 The penalty itself was expressed in terms of clementia and severitas. Lepidus suggested that the reduced penalty he proposed represented a compromise whereby the senate would repent neither its clementia nor its severitas. Lepidus thus characterizes clementia and severitas as alternative approaches to punishment — in this case interpreted as, on the one hand, waiving punishment (clementia) or, on the other hand, execution (severitas). He assumed that the senate would see clementia, severitas and moderatio as virtues it could ‘own’.
A strong case can be made for the idea that Tacitus represents Lepidus as responding to a case advocating severitas. Aside from the direct reference to clementia and severitas, there are two further points in Lepidus’ case which argue in favour of this idea. First, Lepidus was at pains to laugh out of court the idea that Clutorius posed a genuine threat to the res publica (‘neque servatus in periculum rei publicae … ibit’, ‘neither will his preservation constitute a danger to the state’).Footnote 83 We have seen elsewhere that severitas could be represented as an appropriate response to threats to the res publica and as a defence of the law.Footnote 84 Lepidus’ argument that the current case could be distinguished since Clutorius’ work was vacuous and his audience (mere women) posed no great danger to the community (3.50.3) seems framed to respond to this kind of rhetoric. Like Velleius’ characterization of Tiberius’ conditional forgiveness at 2.125.3 (exercised only in circumstances where no harmful precedent would be set), Lepidus pleaded that no further harm would be done.
Second, Clutorius’ death will serve no didactic purpose (‘neque interfectus in exemplum ibit’). No one will learn more from his exemplum if he is executed than if he were to receive a lesser punishment. The echoes of Sallust's representation of the case against the Catilinarian conspirators in this passage have long been recognized.Footnote 85 Given the centrality of exemplary punishment in the SCPP also (punishments dictated by severitas), it seems reasonable to assume that the exemplarity of the punishment — punishment as deterrent — formed part of the rhetoric used by advocates of severitas and that Tacitus represents Lepidus as speaking to this kind of rhetoric in his defence of Clutorius Priscus here. Both elements of the (imagined) case for the prosecution thus exploit the rhetoric of severitas.
Lepidus’ case received support from C. Rubellius Blandus but was otherwise unsuccessful and Clutorius was summarily executed. Tiberius’ response, according to Tacitus, however, like Lepidus’ compromise between clementia and severitas, acknowledged two different ‘camps’ or points of view present in the senate. He praised the pietas of those who sought to use the law to defend the emperor, but he also deplored the hasty punishment of words. He praised Lepidus, but did not criticize Haterius: ‘laudaret Lepidum neque Agrippam argueret’ (Ann. 3.51.1). Tacitus’ report of Tiberius’ use of pietas in his response is suggestive when read alongside ll. 70–2 of the SCPP (discussed above). Pietas marks — or was claimed by — those who would exercise or advocate severitas in both texts. As with the SCPP, severitas (here represented by Haterius and upheld by the majority who supported his verdict) governed the senate's decision making. Lepidus’ suggestion that the senate itself might model the clementia and moderatio of the princeps was not accepted even though, as events proved, Lepidus’ position was that favoured by Tiberius.
The Outcome of Clutorius Priscus’ Trial
In the wake of this trial and Tiberius’ response, the senate proposed that they should thereafter observe a nine-day moratorium on lodging their decisions in the aerarium in order to give the princeps the opportunity to intervene. Tacitus saw this as an attempt to provide an avenue for the princeps to participate in the administration of punishment.Footnote 86 He claimed that Tiberius never took advantage of it.Footnote 87 The rhetorical and procedural implications of the moratorium make it a watershed in the history of the princeps’ clementia. Procedurally, it had been unclear at what point during proceedings the clementia of the princeps would come into play. In a.d. 20, the SCPP appears to show Tiberius’ clementia being exercised after the senate had come to a decision about the penalties to be imposed, but it does not spell this out clearly. The new procedure created an avenue for the princeps to intervene if he was unhappy with the senate's decision. It provided a means by which the clementia of even an absent princeps could be exercised and, in doing so, it sought to regularize (or formalize) the relationship between the authority of the senate and that of the princeps when it came to the determination of penalties.
The trial and its aftermath also constitute an important statement about the senate's claims to clementia, severitas and moderatio. Where, in the SCPP the senate had claimed both clementia and severitas and had established Tiberius’ moderatio as a virtue which could/should be emulated, the trial of Clutorius shows the senate rejecting clementia and moderatio in favour of severitas. Where Tiberius (in Tacitus’ view) refused to exercise clementia during the nine-day moratorium, the severitas of the senate was effectively unassailable.
Outside of Tacitus’ narrative, other evidence suggests that the question of who should exercise clementia and whether severitas or clementia should guide decision-making continued to occupy Tiberius’ contemporaries. Suetonius offers evidence of precisely the tendency towards an institutionalized severitas that Tacitus deplored. Suetonius (Tib. 75) records that, on learning of the death of Tiberius, those awaiting the now-mandatory nine-day moratorium on their executions appealed to the senate, in the absence of the princeps, to exercise clemency and repeal their sentences. Their jailors nevertheless carried out the executions. Once again, the default position — in the absence of Gaius — was for strict adherence to the law in the application of punishment. Suetonius concludes the episode by noting the contemporary reaction: ‘therefore hatred of the tyrant waxed greater, since his saevitia endured even after his death’ (‘crevit igitur invidia, quasi etiam post mortem tyranni saevitia permanente’, trans. Rolfe).
The passage is important. When read alongside Tacitus’ comments on the fall-out from Clutorius’ trial, it shows the extent to which a formalization of the princeps’ interventions had taken place. In the absence of Gaius, the senate appears to have maintained the now-conventional distinction between the decision to which they had come and the absent princeps’ ability to exercise clementia. Suetonius’ remarks about saevitia are insightful. The cruelty (saevitia) which lived on after Tiberius refers not to his personal failure to exercise clementia but to the system of punishment in which severitas was unmitigated by clementia. This situation was seen to be one of Tiberius’ making and to have persisted even in his absence and after his death. But, as Tacitus demonstrated in his examination of the trial of Clutorius Priscus and its aftermath, the senate were equally implicated for, in rejecting Lepidus’ plea for a penalty which represented a compromise between clementia and severitas and in establishing the nine-day stay of execution during which the princeps could intercede, they effectively abnegated responsibility to exercise clementia themselves (Ann. 3.51.2).
That there were increased tensions between supporters and opponents of severitas appears to be borne out in the accounts of the latter part of Tiberius’ regime given in Suetonius and Dio. Advocacy on behalf of clementia continued. On the one hand, there were those who worked within the system (as it were) by calling for the princeps to exercise the clementia he owned. In a.d. 28 altars to Clementia and Amicitia (accompanied by statues of Tiberius and Sejanus) were proposed in the senate — although the proposal was not on the agenda for the meeting. The episode is widely viewed as an attempt to remind the princeps of his responsibility to exercise clementia.Footnote 88 It is difficult to hypothesize further, but certainly the fact that after the trial of Clutorius Priscus an attempt had been made to regularize the exercise of clementia by the absent princeps, coupled with the fact that Tiberian loyalists like Velleius and Sejanus were advocating severitas in this period, makes it likely that this proposal is part of an ongoing debate about the rôle of clementia in Tiberian Rome. On the other hand, there seem to have been attempts to sabotage — or at least undermine — the operation of the nine-day stay of punishment. Suetonius’ narrative (Tib. 72) when read with the corresponding passage in Dio (58.27.3) points to a loophole in the new procedure which the senate seemed willing to exploit in Tiberius’ later years. Suetonius and Dio both record that, in his final months, Tiberius claimed that the senate seemed to be disobliging him in the matter of several cases about which he had written to them. Suetonius states that the cases had been dismissed (Tib. 72). Dio's version differs in one significant respect. Where Suetonius implies that the cases were dismissed without a hearing, Dio states that after hearing contradictory testimony, the senate ‘postponed sentencing them’ (ἀναβαλομένης τὴν καταδίκην σϕῶν). He insists that some of these cases were postponed again when news of Tiberius’ further deterioration reached Rome (58.27.5). If Dio is correct then, by postponing a sentence, the senate ensured that the nine-day moratorium on punishment during which Tiberius could have overturned their verdict could not be invoked. Along with the motion (not added to the official agenda for the senate meeting in a.d. 28) to dedicate altars to Clementia and Amicitia, I think we should see in this willingness to look for a loophole in the practice of allowing nine days for the princeps to exercise clementia, a concerted resistance to the prevailing attitude towards punishment.
V TACITUS AND THE SAEVITIA OF THE SYCHOPHANTS
The rhetoric of clementia and severitas is pervasive throughout Tacitus’ account of Tiberius’ principate.Footnote 89 We have already examined Tacitus’ use of this rhetoric in the trial of Clutorius Priscus. This final section of the argument looks at Tacitus’ account of the mutinies of a.d. 15 and at the later career of Clutorius’ defence advocate, Lepidus, before concluding with some observations about Tacitus’ reflections on saevitia.
The account of the mutinies of a.d. 15 establishes Tacitus’ interest in punishment. Tacitus’ version of the discussions in the Pannonian and German camps turned on two points: who ultimately authorized (or, more likely, should be represented as authorizing) a response to affairs on the German frontier, the senate or Tiberius? And what was the appropriate response — severitas or gratia/largitio/munificentia? Velleius’ reference to the use of a range of penalties against the mutinous legions of a.d. 15 (2.125.3) finds echoes in Tacitus’ account of the mutinies. When Drusus reached the legions in Pannonia, he read them a letter from Tiberius (Ann. 1.25.3). The letter described the senate as ‘a party to neither favour nor strictness’ (‘neque gratiae neque severitatis expertem’). The rhetoric used by his Germanicus on the German frontier also debated the merits of severitas and largitio (Ann. 1.36.2: ‘periculosa severitas, flagitiosa largitio’, cf. Vell. 2.81.1 on the severitas and liberalitas of Augustus). However, the decision on the German front seems to have been taken to underline the ability of the princeps (rather than the senate) to issue punishments and rewards and letters were written in his name setting out the terms of discharge and the payment of the legacies claimed. Tacitus (1.46.1–2) imagined that critics at Rome also represented Tiberius as the fountainhead of punishment, able to exercise both severitas and also munificentia.
I do not claim that Tacitus has reproduced contemporary letters or speeches verbatim, but that there would be (or could be represented as having been) different views on the matter at the time is certainly plausible. That Tiberius should have recommended that the ultimate decision about punishments and rewards lay with the senate was consistent with his widely advertised desire for the laws to function (Ann. 1.72.3) and his determination to uphold the authority of that body. That others should represent Tiberius himself as the source of punishment or pardon is also understandable at a time when the relationship between the authority and power of the new princeps and the authority of the senate remained uncertain.Footnote 90
Like Tiberius’ contemporaries, the question of what principles (severitas or clementia) should guide the determination of punishment and when, and by whom, these virtues should be exercised seems also to have preoccupied Tacitus. But, where Tiberius’ supporters could represent severitas as a positive approach to the administration of punishment, Tacitus saw matters differently. His treatment of M. Lepidus and his comparison of the trials of Clutorius Priscus and Antistius Sosianus demonstrate this.
Lepidus’ appearance in the case of Clutorius Priscus, and his argument for a reduced penalty, can be set alongside his appearance in two other cases in Tacitus’ narrative.Footnote 91 He was part of Cn. Piso's defence (Ann. 3.11.2) and moderated the penalty imposed on Sosia Galla after her exile by ensuring that the law was adhered to when it came to the division of her property: one quarter to her successful accusers and the remainder to her children (Ann. 4.20.2). Tacitus’ epitaph for Lepidus reflects on his integrity and success (4.20.10):
hunc ego Lepidum temporibus illis gravem et sapientem virum fuisse comperior: nam pleraque ab saevis adulationibus aliorum in melius flexit. neque tamen temperamenti egebat, cum acquabili auctoritate et gratia apud Tiberium viguerit.
I am discovering for myself that this Lepidus was a weighty and wise man during that period. He frequently steered issues away from the savage sycophancies of others in a better direction, but at the same time he did not lack balance, since he thrived as much on continuing influence with Tiberius as by the latter's favour toward him.
Lepidus, then, was known to try to avoid the saevitia of the sycophants and to seek a better alternative.Footnote 92 His approach was — or could be — characterized by temperantia. The description calls to mind not only the moderatio he recommended during the trial of Clutorius Priscus but also Velleius’ Aelius Lamia (2.116.3) who ‘tempered’ prisca gravitas with humanitas.
Tacitus’ claim that it was the ‘sycophants’ who demonstrated saevitia requires careful consideration. At Ann. 14.48, Tacitus reports the trial in a.d. 62 of Antistius Sosianus. There are close parallels between the defence speech of Thrasea Paetus in this trial and that of Lepidus in the trial of Clutorius Priscus.Footnote 93 Both speeches allude to Sallust's famous debate about the punishment of the Catilinarian conspirators (Sall., Cat. 50.3–53.1) and contain close verbal parallels.Footnote 94 But where (in a.d. 21) Lepidus is represented by Tacitus as advocating a penalty expressed in terms of clementia and severitas, forty-one years later, Thrasea spoke of clementia and saevitia.Footnote 95 Adopting a lesser penalty, he argued, would mean that the judges avoided being branded with saevitia. Antistius would be an example of publica clementia. It is not possible to know whether the call for publica clementia which Tacitus puts in Thrasea's mouth reflects the rhetoric of his actual speech. But the expression provides further evidence that Tacitus was aware of a tradition (evidenced in his version of Lepidus’ speech at Ann. 3.50, as well as in the SCPP and the claims of the suppliants described by Suetonius, Tib. 75) that claimed that clementia was not the exclusive preserve of the princeps. Thrasea called on the senators themselves to exercise clementia. Moreover, where Lepidus’ appeal had been unsuccessful, Thrasea's speech broke through the ‘servility’ (servitium) of the other senators, leaving only a few sycophants preferring the harsher penalty proposed for the defendant.Footnote 96 The close parallels between these two cases which Tacitus highlights in his narrative suggest that he intended them as vehicles for exploring an ongoing debate about clementia, severitas and saevitia.
Tacitus remarks early in his narrative on the danger of Tiberius’ ‘passion for severitas’ (here as a curb on luxuria): ‘cupidine severitatis in iis etiam quae rite faceret acerbus’ (‘his desire for strictness making him sour even in those matters where he acted with propriety’, Ann. 1.75.4). Even well-intentioned severitas could be harsh (acerbus). The trial of Clutorius Priscus and its aftermath allowed Tacitus to explore the ramifications of this view for where the senate seemed guided by severitas (and appeared to reject their own ability to act with clementia or moderatio) and the princeps appeared to be failing to exercise clementia; where there was no avenue for appeal or review and the princeps was absent and unresponsive, then severitas might well teeter on the brink of saevitia. And indeed, the opening of Book 4 sets the scene for just such a world overwhelmed by saevitia (Ann. 4.1.1).
VI CONCLUSIONS
The absence of clementia from Velleius’ depiction of Tiberius is significant. It is the smoking gun which clues us into the fact that there is more going on with clementia in Tiberian Rome than has previously been appreciated. There is good reason to believe that the trial of Clutorius Priscus and its aftermath marked a key moment in the discussion of important questions concerning clementia and that Velleius’ thinking was influenced by this.Footnote 97 Prior to this trial the senate had laid claim to the exercise of both clementia and severitas in the SCPP and the place of the princeps’ clementia in decision-making about punishment had not been formalized. As a result of Clutorius’ trial both matters were clarified. Clementia seemed to be reserved for the princeps who exercised it (or refrained from exercising it) after the senate had reached a decision about punishment. The senate, faced with both an increased responsibility for, and greater flexibility in, the administration of justice — and especially punishment — coupled with the need, in cases of maiestas, to protect the interests of the princeps, sought refuge in severitas.
Velleius evidently approved but controversy nevertheless remained and can be traced in contemporary and later source material. The establishment of the altar to Clementia in a.d. 28 and the attempts at the end of Tiberius’ lifetime to exploit a loophole in the procedure set up after Clutorius’ trial testify to an ongoing desire to resist the prevailing rhetoric of severitas. The treatment of the families of Agrippina and Sejanus (as well as the punishment of Sejanus himself), and the execution of the suppliants reported by Suetonius (Tib. 75), represent its failure during the principate of Tiberius — a failure which Tacitus suggests was redressed under Nero in the senate's determination (even in the face of the princeps’ displeasure) to reject saevitia and show publica clementia to Antistius Sosianus.
What Tacitus understood as the saevitia of the sycophants was a hostile rendering of what they themselves presented as justifiable (even pius) severitas. Two advocates of severitas whom we have already met would undoubtedly have been considered ‘sycophants’ by Tacitus: Velleius Paterculus and Haterius Agrippa.Footnote 98 Certainly, neither Velleius nor Haterius Agrippa could be considered an opponent of Tiberius and yet both advocated (or, in the case of Haterius, could be represented as advocating) severitas rather than the (apparently) imperially endorsed clementia.
By the late 20s and early 30s, advocates of severitas evidently needed to address mounting criticism. When Velleius came to write his opus in the years immediately before the downfall of Sejanus, he argued forcefully in favour of severitas not because he was reticent about mentioning the princeps’ clementia but because he believed severitas was the only sure defence of the princeps and the community whose safety he guaranteed and because he believed that the privilege of issuing discretionary penalties (from pardon through a range of different punishments) should belong to the princeps alone. The appropriate attitude for the senate to adopt in each case was the strict imposition of punishment which ‘fitted’ the crime. The princeps was therefore reassuringly figured in Velleius’ text as a capable and experienced judge of virtue and vice — both pardoner and punisher.
Velleius was writing before the fall of the great Tiberian exponent of severitas, Sejanus. His later contemporary Valerius Maximus’ ambivalence about severitas must have struck a chord with many others who had lived through the Sejanic regime and its aftermath:Footnote 99
6.3.init. Armet se duritia pectus necesse est, dum horridae ac tristis severitatis acta narrantur, ut omni <miti>ore cogitatione seposita rebus auditu asperis vacet: ita enim destrictae et inexorabiles vindictae et varia poenarum genera in medium procurrent, utilia quidem legum munimenta, sed minime in placido et quieto paginarum numero reponenda.
The heart must arm itself with hardness while acts of harsh grim Severity are related; setting aside all milder thoughts, let it attend to matters rough in the hearing. Angers unsparing, retributions inexorable, punishments of various kinds shall come forth, useful defences of the laws to be sure, but by no means to be reckoned in the number of peaceful, tranquil pages.Footnote 100
Severitas, adopted as a means of upholding the letter of the law in the midst of legal change and as an act of pietas towards the princeps and the state he defended, now reeked of the saevitia of the sycophants. It had become, as Valerius recognized, a difficult virtue to accommodate alongside the quies celebrated in the Tiberian principate.
