CASE 91: The Consilium II: The Quality of Mercy
Seneca, De Clementia 1.15.1-6, 16.1
(15.1) Trichonem equitem Romanum memoria nostra, quia filium suum flagellis occiderat, populus graphiis in foro confodit; vix illum Augusti Caesaris auctoritas infestis tam patrum quam filiorum manibus eripuit.
(15.2) Tarium, qui filium de- prensum in parricidii consilio damnavit causa cognita, nemo non suspexit, quod contentus exilio et exilio delicato Massiliae parricidam continuit et annua illi praestitit, quanta praestare integro solebat; haec liberalitas effecit, ut, in qua civitate numquam deest patronus peioribus, nemo dubitaret, quin reus merito damnatus esset, quem is pater damnare potuisset, qui odisse non poterat. (15.3) Hoc ipso exemplo dabo, quem compares bono patri, bonum principem. cogniturus de filio Tar- ius advocavit in consilium Caesarem Augustum; venit in privatos penates, adsedit, pars alieni consilii fuit, non dixit: “Immo in meam domum veniat”; quod si factum esset, Caesaris futura erat cognitio, non patris. (15.4) Audita causa excussisque omnibus, et his quae adulescens pro se dixerat, et his, quibus arguebatur, petit, ut sententiam suam quisque scriberet, ne ea omnium fieret, quae Caesaris fuisset; deinde, priusquam aperirentur codicilli, iuravit se Tarii, hominis locupletis, hereditatem non aditurum. (15.5) Dicet aliquis: “Pusillo animo timuit, ne videretur locum spei suae aperire velle filii damnatione.” ego contra sentio; quilibet nostrum debuisset adversus opiniones malignas satis fiduciae habere in bona conscientia, principes multa debent etiam famae dare. iuravit se non aditurum hereditatem. (15.6) Tarius quidem eodem die et alterum heredem perdidit, sed Caesar libertatem sententiae suae redemit; et postquam approbavit gratuitam esse severitatem suam, quod principi semper curandum est, dixit relegandum, quo patri videretur.... (16.1) O dignum, quem in consilium patres advocarent! o dignum, quem coheredem innocentibus liberis scriberent! haec clementia principem decet; quocumque venerit, mansuetiora omnia faciat.(Seneca the Younger in the first book On Mercy)
(15.1) I can remember when the people in the Forum used pens to stab an equestrian named Tricho because he had flogged his son to death; the authority of Caesar Augustus barely rescued him from the hostile hands no less of fathers than of sons.
(15.2) There is (however) no one who did not admire Tarius. He caught his son plotting against his life and condemned him after a full hearing; but content with a sentence of exile, and a very comfortable exile at that, he confined the parricide at Marseilles and paid him the same allowance he had been accustomed to pay before the offense. His generosity had the result that, in a society where the worst sort never lack a defender, no one doubted that the defendant had been rightly condemned, since the father could find him guilty but (obviously) could not hate him.
(15.3) I will use this very case to illustrate a good emperor, whom you can compare to a good father. When he was about to hold the hearing on his son, Tar- ius invited Caesar Augustus to participate in his consilium. He (the emperor) came to a private household, took his seat, and joined in a consilium led by another; he did not say: “Rather, let him come to my house.” Had he done so, it would have been an emperor’s inquest, not that of a father.
size=1 color=black face="Book Antiqua">(15.4) When the case had been heard and all the evidence reviewed, what the young man had said in his own defense as well as the accusations against him, Augustus asked each member of the consilium to deliver his verdict in writing, so that he not prejudice everyone’s vote with his own. Then, before the tablets were opened, he solemnly swore that he would not accept an inheritance from Tarius, who was a wealthy man.
(15.5) Someone will say (of Augustus), “He was acting like a coward, worried that he would seem to want to make room for his own interests by condemning the son.” I have a different view: any one of us should have had enough confidence in his own good conscience in the face of malicious criticism, (but) emperors must concede a great deal even to appearances. He swore an oath that he would not accept an inheritance.
(15.6) To be sure, Tarius (thereby) lost two heirs on the same day, but Augustus preserved the integrity of his own vote and, after he showed that his strictness was disinterested—a factor that always should be of concern for an emperor—he said that the son ought to be exiled to a place chosen by the father....
(16.1) How worthy he was of fathers inviting him to join a consilium! How worthy that they make him coheir to children innocent of fault! This sort of mercy becomes an emperor: wherever he goes, he should make everything more humane.
1. The Unfortunate Mr. Tricho. Similar acts of “street justice” are not uncommon in Roman sources; they often indicate popular moral reactions. Senecas account was written around A.D. 54 but refers to events a half century earlier. In Seneca's presentation, what did the crowd object to? That Tricho killed his son, that he did not afford him due process, or that he killed him in such a cruel way? Why does Seneca stress that Tricho's conduct was offensive not only to sons but also to their fathers? (Tricho is otherwise unknown.
The “pens” used by the crowd are the sharp implements used on wax-covered writing tablets.)2. The Consilium of Tarius. Seneca vividly describes a domestic council at work during the reign of Augustus (31 B.C. to A.D. 14). The protagonist is L. Tarius Rufus, suffect consul in 16 B.C. and a fabulously wealthy parvenu; the son was presumably after his money. As you can see, this consilium has somewhat the trappings of a public criminal trial: it is summoned by the paterfamilias, who presents his evidence as to his son's wrongdoing; the members of the consilium listen to both sides and then cast votes; if a majority find the son guilty, the father issues a condemnation; after consultation on the punishment, there follows a sentence. At this point, before considering the intervention of Augustus in this particular case, you should weigh the advantages and disadvantages, from a legal perspective, of permitting such a domestic trial to occur at all. For instance, how much of a problem is it that Tarius acts as both prosecutor and judge (summoning a consilium of his own choosing and then issuing a verdict)? Is such a proceeding likely to be harsher or more lenient than a criminal trial?
3. The 800-Pound Gorilla. Why did Tarius invite Augustus to participate in his consilium? Could his motives be similar to those of Gellius in summoning “almost the entire Senate”? How did Augustus's presence affect the proceeding? For instance, why did Augustus insist that the verdicts be delivered in written form and not orally? And what is the point of his oath denying any interest in Tarius's estate? Seneca suggests a possible criticism of this move; is his defense against that criticism entirely convincing? Does the presence of Augustus seem quite so innocent as Seneca suggests?
4. The Envelope, Please.
The written verdict of the style='font-style:italic'>consilium was clearly a vote of guilty. On Seneca's account, Augustus then suggested exile as an appropriate penalty, and Tarius followed through on this suggestion. As Seneca concludes: “This sort of mercy becomes an emperor: wherever he goes, he should make everything more humane.” What does Seneca mean? Does he regard the penalty as disproportionately lenient, by then prevailing standards, in relation to the son's crime? Is he implying that Tarius had little choice in accepting the emperor's suggestion?5. “I’m Going to Disneyworld!” The father continued the son's allowance as before and selected for his exile the ancient Greek city of Massilia, modern Marseilles, a sort of combination resort and college town with a reputation for excellent seafood. As the parties well knew, there were far less inviting places of exile. Did this defeat the purpose of Augustus's suggestion? Or was Tarius's choice also influenced by the emperor in some way? Is the result optimal for all parties concerned?
6. The Dust Settles. What was left of the vitae necisque potestas in the wake of this case? When similar episodes arose subsequently, would other fathers correctly interpret the emperor as having rejected harsher penalties such as putting the son to death? That is, would an event like this set a precedent? And if it did, would that undermine the function of the domestic trial? Might Augustus conceivably have wanted such an outcome? In any case, we seem to have no subsequent evidence of a domestic consilium resulting in the death of a child-in-power.