ONE I HAVE PARDONED FOR HIS HIGH POSITION, ANOTHER FOR HIS HUMBLE STATE
2. Nevertheless, it is not fitting to pardon too commonly; for when the distinction between good and bad men is removed, the result is
confusion and an epidemic of vice. Therefore a moderation should be exercised which will be capable of distinguishing between curable and hopeless characters. Neither should we have indiscriminate and general, nor “cut short” clemency; for it is as much a cruelty to pardon all as to pardon none. We should maintain the mean; but since a perfect balance is difficult, if anything is to disturb the equipoise it should tip the scales toward the more humane side. But these matters will be more fitly discussed in their proper place.
He raises an objection as if from an opponent. For there are those who falsely think CLEMENCY TO BE REMISSION OF PUNISHMENT. But [Hot. C., 4.5.24]: Punishment follows close on guilt. So it comes about that
clemency seems to be nothing but a kind of impunity. Seneca dispels this false and stupid notion, and at the same time the bad name of clemency which springs from it. For no one of sound judgment would assign
clemency a place among the virtues, who thought of it as a sort of right of asylum for criminals and dangerous men, encouraging recklessness by sustaining the wicked.
BUT FIRST OF ALL JUST AS MEDICINE IS USED BY THE SICK This is the first point in disposing of the objection. Granted that the guilty alone are permitted to experience the benefits of clemency — still it does not for that reason lose the name of virtue among good men. He clinches his argument by a very apt comparison. For medicine, even if none be ill, is ever esteemed as an art necessary for humankind: yet only when occasion demands does it exercise its power.
SO WITH CLEMENCY — THOUGH IT IS THOSE WHO DESERVE PUNISHMENT THAT INVOKE IT
In judicial proceedings the first question to be treated is that of the act itself. When someone accused of homicide denies that he has killed a man, this, as Quintilian says, is the surest defense of the cause. The next best thing is to defend the murder as justly done. When not the act itself but the quality of the act is considered to be in doubt, this becomes a
legitimate question. Last of all there is supplication (deprecatio) which can only take place after the crime has been confessed, when we can neither deny the misdeed to have been committed, nor defend it as tightly committed. Then we have recourse to begging for pardon, we elicit the judge’s mercy with tears, without any appearance of defense. Accordingly, deprecation... is extremely rare, as Quintilian says [5.13.5] and before such judges only as are confined to no set form of decision. And the same author [7.4.18]: In the senate, before the people or the emperor, and wherever there is clemency with regard to the lam, deprecation has its place. See Cicero [A. H., 2.17.25ff; Inv., 1.11.15; 2.33.10436.109]. I ought not however to pass over Cicero’s celebrated passage in his Pro Ligario [10.30], for from this single example you can readily understand what deprecation is. I have often pleaded many a cause, Caesar, yea, and at your side too, while the demands of your official career kept you at the bar, but never after this fashion: “[crave your pardon for my client, gentlemen;
he blundered — he slipped — he never thought — if ever again... ” That is the tone one adopts toward a parent, but to a jury me say: “He did not do this thing; he never dreamed of it; the evidence is false; the charge is invented.” Hence it is clear enough why Seneca says that THOSE
DESERVING PUNISHMENT INVOKE CLEMENCY. And Publilius Syrus: ‘Tis a bad cause that requires mercy.
AGAIN, THIS VIRTUE HAS SCOPE EVEN IN THE PERSON OF THE GUILTLESS
Seneca was previously defending clemency so as to concede it to be an unnecessary virtue among the guiltless. Now he proves that a time comes when clemency serves even these persons. For there are certain matters, rather to be imputed to fortune than to deliberate malice: yet they are not exempted from punishment, if you enforce the law with the utmost rigor.
There are other things which take their character from the circumstances of the time, and which recently deserved the praise of virtue, but now are turned to vice. If these are subjected to strict severity they can legitimately be punished; if to equity, legitimately condoned. Ovid has well expressed it [Trist., 1.1.37]:
As it is the judge’s duty to investigate the facts, So also the circumstances.
In Quintilian, also, “status” pertains to act, i.e., to the actual doing (praxis) of a deed.., whether a man did a thing knowingly or unknowingly; from compulsion or by chance. For many identical things are often done but in different ways.
BESIDES, THERE ARE A GREAT MANY PEOPLE
Now comes the third argument to remove the reproach which argued that clemency was of value only to nourish boldness to do evil. Still, says Seneca, there are many who have not yet quaffed deeply of wickedness, who, if you should apply moderate correction, can repent. Should not one try some method by which you could TURN such men BACK TO THE RIGHT PATH? This is exactly what clemency does. It is of great importance when pleading for mercy, says Quintilian [7.4.18], if there is hope that a man will live innocently in the future, and make himself of use to others. Or, as Cicero says, “repentance is the best haven after shipwreck.” Yet all this can only happen where clemency is practiced. Seneca, On Anger [1.19.5]:
He often lets a man go after detecting his crime, if his repentance for what he has done promises good hope, if he perceives that the man’s wickedness is not deeply rooted in his mind, but is only, as the saying goes, skin-deep.
He will grant impunity in cases where it will hurt neither the receiver nor the giver. However, what Seneca here calls TO BE TURNED BACK TO
INNOCENCE, Terence [And., 1.2.19.190] has termed to return to the path;
Cicero, [Cad. 28] to return to better fruit.