Source of the text

Pliny the Younger (A.D. 62?–c.A.D. 113).

Letters. The Harvard Classics. 1909–14

LXXXIX. To Aristo

(...) Upon these considerations, therefore, I may the more reasonably entreat you, in the first place, to pardon my error (if I have been guilty of one), and, in the next, to lead me out of it by your superior knowledge: for you have always been diligent to examine into the constitution of your country, both with respect to its public and private, its ancient and modern, its general and special laws. I am persuaded, indeed, the point upon which I am going to consult you is such an unusual one that even those whose great experience in public business must have made them, one would have naturally supposed, acquainted with everything were either doubtful or absolutely ignorant upon it. I shall be more excusable, therefore, if I happen to have been mistaken; as you will earn the higher praise if you can set me right in an affair which it is not clear has ever yet fallen within your observation.

The enquiry then before the house was concerning the freedmen of Afranius Dexter, who being found murdered, it was uncertain whether he fell by his own hands, or by those of his household; and if the latter, whether they committed the fact in obedience to the commands of Afranius, or were prompted to it by their own villainy. After they had been put to the question, a certain senator (it is of no importance to mention his name, but if you are desirous to know, it was myself) was for acquitting them; another proposed that they should be banished for a limited time; and a third that they should suffer death. These several opinions were so extremely different that it was impossible either of them could stand with the other. For what have death and banishment in common with one another? Why, no more than banishment and acquittal have together. Though an acquittal approaches rather nearer a sentence of exile than a sentence of death does: for both the former agree at least in this, that they spare life, whereas the latter takes it away. In the meanwhile, those senators who were for punishing with death, and those who proposed banishment, sate together on the same side of the house: and thus by a present appearance of unanimity suspended their real disagreement.

I moved, therefore, that the votes for each of the three opinions should be separately taken, and that two of them should not, under favour of a short truce between themselves, join against the third. I insisted that such of the members who were for capital punishment should divide from the others who voted for banishment; and that these two distinct parties should not be permitted to form themselves into a body, in opposition to those who declared for acquittal, when they would immediately after disunite again: for it was not material that they agreed in disliking one proposal, since they differed with respect to the other two. It seemed very extraordinary that he who moved the freedmen should be banished, and the slaves suffer death, should not be allowed to join these two in one motion, but that each question should be ordered to be put to the house separately; and yet that the vote of one who was for inflicting capital punishment upon the freedmen should be taken together with that of one who was for banishing them. For if, in the former instance, it was reasonable that the motion should be divided, because it comprehended two distinct propositions, I could not see why, in the latter case, suffrages so extremely different should be thrown into the same scale.

Permit me, then, notwithstanding the point is already settled, to go over it again as if it were still undecided, and to lay before you those reasons at my ease, which I offered to the house in the midst of much interruption and clamour.

Let us suppose there had been only three judges appointed to hear this cause, one of whom was of opinion that the parties in question deserved death; the other that they should only be banished; and the third that they ought to be acquitted: should the two former unite their weight to overpower the latter, or should each be separately balanced? For the first and second are no more compatible than the second and third. They ought therefore in the same manner to be counted in the senate as contrary opinions, since they were delivered as different ones. Suppose the same person had moved that they should both have been banished and put to death, could they possibly, in pursuance of this opinion, have suffered both punishments? Or could it have been looked upon as one consistent motion when it united two such different decisions? Why, then should the same opinion, when delivered by distinct persons, be considered as one and entire, which would not be deemed so if it were proposed by a single man? Does not the law manifestly imply that a distinction is to be made between those who are for a capital conviction, and those who are for banishment, in the very form of words made use of when the house is ordered to divide? You who are of such an opinion, come to this side; you who are of any other, go over to the side of him whose opinion you follow. Let us examine this form, and weigh every sentence: You who are of this opinion: that is, for instance, you who are for banishment, come on this side; namely, on the side of him who moved for banishment. From whence it is clear he cannot remain on the side of those who are for death. You who are for any other: observe, the law is not content with barely saying another, but it adds any. Now can there be a doubt as to whether they who declare for a capital conviction are of any other opinion than those who propose exile! Go over to the side of him whose opinion you follow: does not the law seem, as it were, to call, compel, drive over, those who are of different opinions, to contrary sides? Does not the consul himself point out, not only by this solemn form of words, but by his hand and gesture, the place in which every man is to remain, or to which he is to go over? “But,” it is objected, “if this separation is made between those who vote for inflicting death, and those who are on the side of exile, the opinion for acquitting the prisoners must necessarily prevail.”

But how does that affect the parties who vote? Certainly it does not become them to contend by every art, and urge every expedient, that the milder sentence may not take place. “Still,” say they, “those who are for condemning the accused either capitally or to banishment should be first set in opposition to those who are for acquitting them, and afterwards weighed against each other.” Thus, as, in certain public games, some particular combatant is set apart by lot and kept to engage with the conqueror; so, it seems, in the senate, there is a first and second combat, and of two different opinions, the prevailing one has still a third to contend with. What? when any particular opinion is received, do not all the rest fall of course? Is it reasonable, then, that one should be thrown into the scale merely to weigh down another? To express my meaning more plainly: unless the two parties who are respectively for capital punishment and exile immediately separate upon the first division of the house, it would be to no purpose afterwards to dissent from those with whom they joined before. But I am dictating instead of receiving instruction.—Tell me, then, whether you think these votes should have been taken separately? My motion, it is true, prevailed; nevertheless I am desirous to know whether you think I ought to have insisted upon this point, or have yielded as that member did who declared for capital punishment? For convinced, I will not say of the legality, but at least of the equity of my proposal, he receded from his opinion, and went over to the party for exile: fearing perhaps, if the votes were taken separately (which he saw would be the case), the freedmen would be acquitted: for the numbers were far greater on that side than on either of the other two, separately counted. The consequence was that those who had been influenced by his authority, when they saw themselves forsaken by his going over to the other party, gave up a motion which they found abandoned by the first proposer, and deserted, as it were, with their leader. Thus the three opinions were resolved at length into two; and of those two, one prevailed, and the other was rejected; while the third, as it was not powerful enough to conquer both the others, had only to choose to which of the two it would yield. Farewell.