ONE I HAVE PARDONED FOR HIS HIGH POSITION, ANOTHER FOR HIS HUMBLE STATE
2. NEVERTHELESS IT IS NOT FITTING TO PARDON TOO COMMONLY
INNOCENCE, Terence [And., 1.2.19.190] has termed to return to the path;
Cicero, [Cad. 28] to return to better fruit.
2. NEVERTHELESS IT IS NOT FITTING TO
habit of wrongdoing! What pleasure you provide for men without principle or sense of shame, when they have escaped punishment, and found
themselves given a free hand! So creeps onward that evil sown in man’s nature by the habit of freely sinning, so that it cannot set a limit to its own boldness. Off. [2.8.28]: Had we not borne the unpunished crimes of many, never would such unbridled license have come into the hands of one man.
The duty of the judge is this: to wink at peccadilloes which can set no precedent; but to deal harshly with other offenses which will do harm by their precedent as well. Cicero has well put it [Ep. Brut., 1.2.5]: A salutary severity is better than an empty show of clemency.
THEREFORE A MODERATION SHOULD BE EXERCISED Now he shows that severity is not just, which punctiliously and inexorably metes out punishments, nor does that clemency seem to deserve inclusion among the virtues, which exhibits itself indiscriminately here and there. It follows that that moderation is praiseworthy which combines a bit of both. Cicero admirably expressed this thought [Ep.
Brut., 1.15.3]: To use the saying of Solon, one of the seven :vise men, and the only lawgiver of the seven: the state is controlled by two things, reward and punishment. There is accordingly a measure in both things as in all else, and a certain restraint in both kinds. Publilius Syrus: A good judge he who knows what and how much to dispense. Cicero, Off. [1.25.88]: And yet gentle-dealing and clemency are to be commended only with the
understanding that strictness may be exercised for the good of the state; for without that, the government cannot well be administered. This is what Pliny means by these words [Panegyr., 80.1]: What gentle severity! What clemency without weakness!
BETWEEN CURABLE AND HOPELESS (DEPLORATI) CHARACTERS
In this distinction there lies a certain restraint, which has to be observed in all meting out of punishments. Thus the rule of Plato [Laws, 9.6., 862 E]:
Upon those whom the lawgiver recognizes to be incurable, he mill inflict the ultimate punishment, not ignorant of the fact that it mill be better for the incurable to die rather than to live; and if they are deprived of life, to be doubly beneficial to the rest. For the rest are deterred by their example and
also the city is cleansed of wicked men. So proclaims Tullius Hosfilius in Livy [1.28.9] when he censures Mefius, treaty-breaker and traitor: If, Metius Fuffatius, you were capable of learning fidelity and keeping of treaties, that lesson mould have been taught you by me, while still alive.
Now, since your character is incurable, at least by your punishment teach mankind to consider those things inviolable which have been violated by you. Curable persons he has metaphorically set over against hopeless ones, a figure drawn from the physicians. For when Seneca says “hopeless” it is equivalent to Terence’s “lamentable” for “desperate.” Thus Livy
[5.40.6]:... following each his own hopes, his own plans, those of the government being hopeless. And [9.7.1.]: When these things mere said and heard, and the Roman name was almost hopeless in the assembly of the faithful allies. The word deplorare (to give up as hopeless) is not so frequently found in this sense; yet Livy uses it [3.38.2]: But this was unmistakably tyranny. Liberty was given up as forever lost (deploratur).
The expression was derived from the fact that the corpses of the dead laid upon the funeral pile are lamented, with loud cries uttered now and then.
This sort of utterly profligate man the Greeks call kachektes, as if
depraved by the habit of vices; Cicero uses this word [Ep. Art., 1.14.6]. To that kind of men can also be applied the word: “Art cures bodily disease, death alone the soul’s malady.” For it is easier to break, as Quintilian [1.3.12] says, than to mend.
NEITHER INDISCRIMINATE NOR CUT SHORT (ABSCISSAM) Seneca sometimes luxuriates in fulsome style. He had just said that pardon is not to be given to all or indiscriminately: now he repeats the same thought in other words. CUT SHORT he uses for “abrupt”, “broken off.”
Valerius [2.7.14]: Military discipline requires a harsh and cut short sort of chastisement. And [6.5.7. Ext 4]: Sometimes the justice of Charondas Tyrius was sterner and more cut short, even to the point of violence and bloodshed. See Budaeus [ARP, 359A]. In the same book [Val. Max., 6.4.3]:
Now impressive is the gravity of a man who is shortcut both in thought and in utterance!
FOR IT IS AS MUCH OF A CRUELTY TO PARDON ALL One reads in the Mime of Publilius: Whoever pardons the wicked harms the good. Not that good men are hankering after blood, but because they cannot elsewhere seek protection than from the laws which, if they
permitted everything to the wicked, the safety of all good men would be at stake. Quintilian [12.7.1]: If it is not allowable to exact punishment for crimes, then it is but one step further to allow the crimes themselves; and that license should be granted to the bad is decidedly contrary to the interest of the good.
IT SHOULD TIP THE SCALES TO THE MORE HUMANE SIDE That this metaphorical expression was taken from weighing, I should prefer you to know from the words of Gregory, who speaks as follows in the Motalia: Everyone who judges justly, holds a balance in his hand; in one pan he carries justice, in the other mercy. Through justice he renders his verdict on the transgression, through mercy he tempers the punishment for the crime: so that by a just balance he corrects in certain cases through equity, while through mercy in other cases he pardons. Because it is difficult to weigh one’s verdict always with equal balance, Seneca wishes the judge to lean toward clemency rather than towards cruelty. It has also been rightly laid down, that if there is a deadlock between favorable and unfavorable judgment, the accused is to be absolved as if he actually had obtained a majority. Aristotle gives an account of this in his Problems [29.13, 951a].
CHAPTER 3
1. Here I shall divide this subject as a whole into three parts. The first