THE TRIAL OF JESUS

PREFACE TO VOLUME TWO

S SUFFICIENT was said concerning the entire work in the preface to volume one to warrant a very brief preface to volume two.

The reader will notice that the plan of treatment of the Roman trial of Jesus is radically different from that employed in the Hebrew trial. There is no Record of Fact in the second volume, for the reason that the Record of Fact dealt with in the first volume is common to the two trials. Again, there is no Brief of the Roman trial and no systematic and exhaustive treatment of Roman criminal law in the second volume, corresponding with such a treatment of the Hebrew trial, under Hebrew criminal law, in the first volume. This is explained by the fact that the Sanhedrin found Jesus guilty, while both Pilate and Herod found Him not guilty. A proper consideration then of the Hebrew trial became a matter of review on appeal, requiring a Brief, containing a complete statement of facts, an ample exposition of law, and sufficient argument to show the existence of error in the judgment. The nature of the verdicts pronounced by Pilate and by Herod rendered these things unnecessary in dealing with the Roman trial.

In Part II of this volume, Græco-Roman Paganism at the time of Christ has been treated. It is evident that this part of the treatise has no legal connection with the trial of Jesus. It was added simply to give coloring and atmosphere to the painting of the great tragedy. It will serve the further purpose, it is believed, of furnishing a key to the motives of the leading actors in the drama, by describing their social, religious, and political environments. The strictly legal features of a great criminal trial are rarely ever altogether sufficient for a proper understanding of even the judicial aspects of the case. The religious faith of Pilate, the judge, is quite as important a factor in determining the merits of the Roman trial, as is the religious belief of Jesus, the prisoner. This contention will be fully appreciated after a careful perusal of Chapter VI of this volume.

Short biographical sketches of about forty members of the Great Sanhedrin who tried Jesus have been given under Appendix I at the end of this work. They were originally written by MM. Lémann, two of the greatest Hebrew scholars of France, and are doubtless authoritative and correct. These sketches will familiarize the reader with the names and characters of a majority of the Hebrew judges of Jesus. And it may be added that they are a very valuable addition to the general work, since the character of the tribunal is an important consideration in the trial of any case, civil or criminal.

The apocryphal Acts of Pilate have been given under Appendix II. But the author does not thereby vouch for their authenticity. They have been added because of their very intimate connection with the trial of Jesus; and for the further reason that, whether authentic or not, quotations from them are to be found everywhere in literature, sacred and secular, dealing with this subject. The mystery of their origin, the question of their genuineness, and the final disposition that will be made of them, render the Acts of Pilate a subject of surpassing interest to the student of ancient documents.

WALTER M. CHANDLER.

New York City, July 1, 1908.

PART I
THE ROMAN TRIAL

CHAPTER I

A TWOFOLD JURISDICTION

T THE Hebrew trial of Jesus having ended, the Roman trial began. The twofold character of the proceedings against the Christ invested them with a solemn majesty, an awful grandeur. The two mightiest jurisdictions of the earth assumed cognizance of charges against the Man of Galilee, the central figure of all history. "His tomb," says Lamartine, "was the grave of the Old World and the cradle of the New," and now upon His life before He descended into the tomb, Rome, the mother of laws, and Jerusalem, the destroyer of prophets, sat in judgment.

The Sanhedrin, or Grand Council, which conducted the Hebrew trial of Jesus was the high court of justice and the supreme tribunal of the Jews. It numbered seventy-one members. Its powers were legislative, executive, and judicial. It exercised all the functions of education, of government, and of religion. It was the national parliament of the Hebrew Theocracy, the human administrator of the divine will. It was the most august tribunal that ever interpreted or administered religion to man. Its judges applied the laws of the most peculiar and venerable system of jurisprudence known to civilized mankind, and condemned upon the charge of blasphemy against Jehovah, the most precious and illustrious of the human race. Standing alone, the Hebrew trial of Christ would have been the most thrilling and impressive judicial proceeding in all history. The Mosaic Code, whose provisions form the basis of this trial, is the foundation of the Bible, the most potent juridical as well as spiritual agency in the universe. In all the courts of Christendom it binds the consciences, if it does not mold the convictions, of judge and jury in passing judgment upon the rights of life, liberty, and property. The Bible is everywhere to be found. It is read in the jungles of Africa, while crossing burning deserts, and amidst Arctic snows. No ship ever puts to sea without this sacred treasure. It is found in the cave of the hermit, in the hut of the peasant, in the palace of the king, and in the Vatican of the pope. It adorns the altar where bride and bridegroom meet to pledge eternal love. It sheds its hallowing influence upon the baptismal font where infancy is christened into religious life. Its divine precepts furnish elements of morals and manliness in formative life to jubilant youth; cast a radiant charm about the strength of lusty manhood; and when life's pilgrimage is ended, offer to the dying patriarch, who clasps it to his bosom, a sublime solace as he crosses the great divide and passes into the twilight's purple gloom. This noble book has furnished not only the most enduring laws and the sublimest religious truths, but inspiration as well to the grandest intellectual triumphs. It is literally woven into the literature of the world, and few books of modern times are worth reading that do not reflect the sentiments of its sacred pages. And it was the Mosaic Code, the basis of this book, that furnished the legal guide to the Sanhedrin in the trial of the Christ. Truly it may be said that no other trial mentioned in history would have been comparable to this, if the proceedings had ended here. But to the Hebrew was added Roman cognizance, and the result was a judicial transaction at once unique and sublime. If the sacred spirit of the Hebrew law has illuminated the conscience of the world in every age, it must not be forgotten that "the written reason of the Roman law has been silently and studiously transfused" into all our modern legal and political life. The Roman judicial system is incomparable in the history of jurisprudence. Judea gave religion, Greece gave letters, and Rome gave laws to mankind. Thus runs the judgment of the world. A fine sense of justice was native to the Roman mind. A spirit of domination was the mental accompaniment of this trait. The mighty abstraction called Rome may be easily resolved into two cardinal concrete elements: the Legion and the Law. The legion was the unit of the military system through which Rome conquered the world. The law was the cementing bond between the conquered states and the sovereign city on the hills. The legion was the guardian and protector of the physical boundaries of the Empire, and Roman citizens felt contented and secure, as long as the legionaries were loyal to the standards and the eagles. The presence of barbarians at the gate created not so much consternation and despair among the citizens of Rome, as did the news of the mutiny of the soldiers of Germanicus on the Rhine. What the legion was to the body, the law was to the soul of Rome—the highest expression of its sanctity and majesty. And when her physical body that once extended from Scotland to Judea, and from Dacia to Abyssinia was dead, in the year 476 A.D., her soul rose triumphant in her laws and established a second Roman Empire over the minds and consciences of men. The Corpus Juris Civilis of Justinian is a text-book in the greatest universities of the world, and Roman law is to-day the basis of the jurisprudence of nearly every state of continental Europe. The Germans never submitted to Cæsar and his legions. They were the first to resist successfully, then to attack vigorously, and to overthrow finally the Roman Empire. And yet, until a few years ago, Germans obeyed implicitly the edicts and decrees of Roman prætors and tribunes. Is it any wonder, then, that the lawyers of all modern centuries have looked back with filial love and veneration to the mighty jurisconsults of the imperial republic? Is it any wonder that the tragedy of the Prætorium and Golgotha, aside from its sacred aspects, is the most notable event in history? Jesus was arraigned in one day, in one city, before the sovereign courts of the universe; before the Sanhedrin, the supreme tribunal of a divinely commissioned race; before the court of the Roman Empire that determined the legal and political rights of men throughout the known world. The Nazarene stood charged with blasphemy and with treason against the enthroned monarchs represented by these courts; blasphemy against Jehovah who, from the lightning-lit summit of Sinai, proclaimed His laws to mankind; treason against Cæsar, enthroned and uttering his will to the world amidst the pomp and splendor of Rome. History records no other instance of a trial conducted before the courts of both Heaven and earth; the court of God and the court of man; under the law of Israel and the law of Rome; before Caiaphas and Pilate, as the representatives of these courts and administrators of these laws.

Approaching more closely the consideration of the nature and character of the Roman trial, we are confronted at once by several pertinent and interesting questions.

In the first place, were there two distinct trials of Jesus? If so, why were there two trials instead of one? Were the two trials separate and independent? If not, was the second trial a mere review of the first, or was the first a mere preliminary to the second?

Again, what charges were brought against Jesus at the hearing before Pilate? Were these charges the same as those preferred against Him at the trial before the Sanhedrin? Upon what charge was He finally condemned and crucified?

Again, what Roman law was applicable to the charges made against Jesus to Pilate? Did Pilate apply these laws either in letter or in spirit?

Was there an attempt by Pilate to attain substantial justice, either with or without the due observance of forms of law?

Did Pilate apply Hebrew or Roman law to the charges presented to him against the Christ?

What forms of criminal procedure, if any, were employed by Pilate in conducting the Roman trial of Jesus? If not legally, was Pilate politically justified in delivering Jesus to be crucified?

A satisfactory answer to several of these questions, in the introductory chapters of this volume, is deemed absolutely essential to a thorough understanding of the discussion of the trial proper which will follow. The plan proposed is to describe first the powers and duties of Pilate as presiding judge at the trial of Christ. And for this purpose, general principles of Roman provincial administration will be outlined and discussed; the legal and political status of the subject Jew in his relationship to the conquering Roman will be considered; and the exact requirements of criminal procedure in Roman capital trials, at the time of Christ, will, if possible, be determined. It is believed that in the present case it will be more logical and effective to state first what should have been done by Pilate in the trial of Jesus, and then follow with an account of what was actually done, than to reverse this order of procedure.

CHAPTER II

NUMBER OF REGULAR TRIALS

W WERE there two regular trials of Jesus? In the first volume of this work this question was reviewed at length in the introduction to the Brief. The authorities were there cited and discussed. It was there seen that one class of writers deny the existence of the Great Sanhedrin at the time of Christ. These same writers declare that there could have been no Hebrew trial of Jesus, since there was no competent Hebrew court in existence to try Him. This class of critics assert that the so-called Sanhedrin that met in the palace of Caiaphas was an ecclesiastical body, acting without judicial authority; and that their proceedings were merely preparatory to charges to be presented to Pilate, who was alone competent to try capital cases. Those who make this contention seek to uphold it by saying that the errors were so numerous and the proceedings so flagrant, according to the Gospel account, that there could have been no trial at all before the Sanhedrin; that the party of priests who arrested and examined Jesus did not constitute a court, but rather a vigilance committee.

On the other hand, other writers contend that the only regular trial was that before the Sanhedrin; and that the appearance before Pilate was merely for the purpose of securing his confirmation of a regular judicial sentence which had already been pronounced. Renan, the ablest exponent of this class, says: "The course which the priests had resolved to pursue in regard to Jesus was quite in conformity with the established law. The plan of the enemies of Jesus was to convict Him, by the testimony of witnesses and by His own avowals, of blasphemy and of outrage against the Mosaic religion, to condemn Him to death according to law, and then to get the condemnation sanctioned by Pilate."

Still another class of writers contend that there were two distinct trials. Innes thus tersely and forcibly states the proposition: "Whether it was legitimate or not for the Jews to condemn for a capital crime, on this occasion they did so. Whether it was legitimate or not for Pilate to try over again an accused whom they had condemned, on this occasion he did so. There were certainly two trials. And the dialogue already narrated expresses with a most admirable terseness the struggle which we should have expected between the effort of the Jews to get a mere countersign of their sentence, and the determination of Pilate to assume the full judicial responsibility, whether of first instance or of révision." This contention, it is believed, is right, and has been acted upon in dividing the general treatise into two volumes, and in devoting each to a separate trial of the case.

Why were there two trials of Jesus? When the Sanhedrists had condemned Christ to death upon the charge of blasphemy, why did they not lead Him away to execution, and stone Him to death, as their law required? Why did they seek the aid of Pilate and invoke the sanction of Roman authority? The answer to these questions is to be found in the historic relationship that existed, at the time of the crucifixion, between the sovereign Roman Empire and the dependent province of Judea. The student of history will remember that the legions of Pompey overran Palestine in the year 63 B.C., and that the land of the Jews then became a subject state. After the deposition of Archelaus, A.D. 6, Judea became a Roman province, and was governed by procurators who were sent out from Rome. The historian Rawlinson has described the political situation of Judea, at the time of Christ, as "complicated and anomalous, undergoing frequent changes, but retaining through them all certain peculiarities which made that country unique among the dependencies of Rome. Having passed under Roman rule with the consent and by the assistance of a large party of its inhabitants, it was allowed to maintain for a while a sort of semi-independence. A mixture of Roman with native power resulted from this cause and a complication in a political status difficult to be thoroughly understood by one not native and contemporary."

The difficulty in determining the exact political status of the Jews at the time of Christ has given birth to the radically different views concerning the number and nature of the trials of Jesus. The most learned critics are in direct antagonism on the point. More than forty years ago Salvador and Dupin debated the question in France. The former contended that the Sanhedrin retained complete authority after the Roman conquest to try even capital crimes, and that sentence of death pronounced by the supreme tribunal of the Jews required only the countersign or approval of the Roman procurator. On the other hand, it was argued by Dupin that the Sanhedrin had no right whatever to try cases of a capital nature; that their whole procedure was a usurpation; and that the only competent and legitimate trial of Christ was the one conducted by Pilate. How difficult the problem is of solution will be apparent when we reflect that both these disputants were able, learned, conscientious men who, with the facts of history in front of them, arrived at entirely different conclusions. Amidst the general confusion and uncertainty, the reader must rely upon himself, and appeal to the facts and philosophy of history for light and guidance.

In seeking to ascertain the political relationship between Rome and Judea at the time of Christ, two important considerations should be kept in mind: (1) That there was no treaty or concordat, defining mutual rights and obligations, existing between the two powers; Romans were the conquerors and Jews were the conquered; the subject Jews enjoyed just so much religious and political freedom as the conquering Romans saw fit to grant them; (2) that it was the policy of the Roman government to grant to subject states the greatest amount of freedom in local self-government that was consistent with the interests and sovereignty of the Roman people. These two considerations are fundamental and indispensable in forming a correct notion of the general relations between the two powers.

The peculiar character of Judea as a fragment of the mighty Roman Empire should also be kept clearly in mind. Roman conquest, from first to last, resulted in three distinct types of political communities more or less strongly bound by ties of interest to Rome. These classes were: (1) Free states; (2) allied states; and (3) subject states. The communities of Italy were in the main, free and allied, and were members of a great military confederacy. The provinces beyond Italy were, in the main, subject states and dependent upon the good will and mercy of Rome. The free states received from Rome a charter of privileges (lex data) which, however, the Roman senate might at any time revoke. The allied cities were bound by a sworn treaty (fædus), a breach of which was a cause of war. In either case, whether of charter or treaty, the grant of privileges raised the state or people on whom it was conferred to the level of the Italian communes and secured to its inhabitants absolute control of their own finances, free and full possession of their land, which exempted them from the payment of tribute, and, above all, allowed them entire freedom in the administration of their local laws. The subject states were ruled by Roman governors who administered the so-called law of the province (lex provinciæ). This law was peculiar to each province and was framed to meet all the exigencies of provincial life. It was sometimes the work of a conquering general, assisted by a commission of ten men appointed by the senate. At other times, its character was determined by the decrees of the emperor and the senate, as well as by the edicts of the prætor and procurator. In any case, the law of the province (lex provinciæ) was the sum total of the local provincial law which Rome saw fit to allow the people of the conquered state to retain, with Roman decrees and regulations superadded. These added decrees and regulations were always determined by local provincial conditions. The Romans were no sticklers for consistency and uniformity in provincial administration. Adaptability and expediency were the main traits of the lawgiving and government-imposing genius of Rome. The payment of taxes and the furnishing of auxiliary troops were the chief exactions imposed upon conquered states. An enlightened public policy prompted the Romans to grant to subject communities the greatest amount of freedom consistent with Roman sovereignty. Two main reasons formed the basis of this policy. One was the economy of time and labor, for the Roman official staff was not large enough to successfully perform those official duties which were usually incumbent upon the local courts. Racial and religious differences alone would have impeded and prevented a successful administration of local government by Roman diplomats and officers. Another reason for Roman noninterference in local provincial affairs was that loyalty was created and peace promoted among the provincials by the enjoyment of their own laws and religions. To such an extent was this policy carried by the Romans that it is asserted by the best historians that there was little real difference in practice between the rights exercised by free and those enjoyed by subject states. On this point, Mommsen says: "In regard to the extent of application, the jurisdiction of the native courts and judicatories among subject communities can scarcely have been much more restricted than among the federated communities; while in administration and in civil jurisdiction we find the same principles operative as in legal procedure and criminal laws."[1] The difference between the rights enjoyed by subject and those exercised by free states was that the former were subject to the whims and caprices of Rome, while the latter were protected by a written charter. A second difference was that Roman citizens residing within the boundaries of subject states had their own law and their own judicatories. The general result was that the citizens of subject states were left free to govern themselves subject to the two great obligations of taxation and military service. The Roman authorities, however, could and did interfere in legislation and in administration whenever Roman interests required.

Now, in the light of the facts and principles just stated, what was the exact political status of the Jews at the time of Christ? Judea was a subject state. Did the general laws of Roman provincial administration apply to this province? Or were peculiar rights and privileges granted to the strange people who inhabited it? A great German writer answers in the affirmative. Geib says: "Only one province ... namely Judea, at least in the earlier days of the empire, formed an exception to all the arrangements hitherto described. Whereas in the other provinces the whole criminal jurisdiction was in the hands of the governor, and only in the most important cases had the supreme imperial courts to decide—just as in the least important matters the municipal courts did—the principle that applied in Judea was that at least in regard to questions of religious offenses the high priest with the Sanhedrin could pronounce even death sentences, for the carrying out of which, however, the confirmation of the procurator was required."

That Roman conquest did not blot out Jewish local self-government; and that the Great Sanhedrin still retained judicial and administrative power, subject to Roman authority in all matters pertaining to the local affairs of the Jews, is thus clearly and pointedly stated by Schürer: "As regards the area over which the jurisdiction of the supreme Sanhedrin extended, it has been already remarked above that its civil authority was restricted, in the time of Christ, to the eleven toparchies of Judea proper. And accordingly, for this reason, it had no judicial authority over Jesus Christ so long as He remained in Galilee. It was only as soon as He entered Judea that He came directly under its jurisdiction. In a certain sense, no doubt, the Sanhedrin exercised such jurisdiction over every Jewish community in the world, and in that sense over Galilee as well. Its orders were regarded as binding throughout the entire domain of orthodox Judaism. It had power, for example, to issue warrants to the congregations (synagogues) in Damascus for the apprehension of the Christians in that quarter (Acts ix. 2; xxii. 5; xxvi. 12). At the same time, however, the extent to which the Jewish communities were willing to yield obedience to the orders of the Sanhedrin always depended on how far they were favorably disposed toward it. It was only within the limits of Judea proper that it exercised any direct authority. There could not possibly be a more erroneous way of defining the extent of its jurisdiction as regards the kind of causes with which it was competent to deal than to say that it was the spiritual or theological tribunal in contradistinction to the civil judicatories of the Romans. On the contrary, it would be more correct to say that it formed, in contrast to the foreign authority of Rome, that supreme native court which here, as almost everywhere else, the Romans had allowed to continue as before, only imposing certain restrictions with regard to competency. To this tribunal then belonged all those judicial matters and all those measures of an administrative character which either could not be competently dealt with by the inferior or local courts or which the Roman procurator had not specially reserved for himself."[2]

The closing words of the last quotation suggest an important fact which furnishes the answer to the question asked at the beginning of this chapter, Why were there two trials of Jesus? Schürer declares that the Sanhedrin retained judicial and administrative power in all local matters which the "procurator had not specially reserved for himself." Now, it should be borne in mind that there is not now in existence and that there probably never existed any law, treaty or decree declaring what judicial acts the Sanhedrin was competent to perform and what acts were reserved to the authority of the Roman governor. It is probable that in all ordinary crimes the Jews were allowed a free hand and final decision by the Romans. No interference took place unless Roman interests were involved or Roman sovereignty threatened. But one fact is well established by the great weight of authority: that the question of sovereignty was raised whenever the question of life and death arose; and that Rome reserved to herself, in such a case, the prerogative of final judicial determination. Even this contention, however, has been opposed by both ancient and modern writers of repute; and, for this reason, it has been thought necessary to cite authorities and offer arguments in favor of the proposition that the right of life or death, jus vitæ aut necis, had passed from Jewish into Roman hands at the time of Christ. Both sacred and profane history support the affirmative of this proposition. Regarding this matter, Schürer says: "There is a special interest attaching to the question as to how far the jurisdiction of the Sanhedrin was limited by the authority of the Roman procurator. We accordingly proceed to observe that, inasmuch as the Roman system of provincial government was not strictly carried out in the case of Judea, as the simple fact of its being administered by means of a procurator plainly shows, the Sanhedrin was still left in the enjoyment of a comparatively high degree of independence. Not only did it exercise civil jurisdiction, and that according to Jewish law (which was only a matter of course, as otherwise a Jewish court of justice would have been simply inconceivable), but it also enjoyed a considerable amount of criminal jurisdiction as well. It had an independent authority in regard to political affairs, and consequently possessed the right of ordering arrests to be made by its own officers (Matt. xxvi. 47; Mark xiv. 43; Acts iv. 3; v. 17, 18). It had also the power of finally disposing, on its own authority, of such cases as did not involve sentence of death (Acts iv. 5-23; v. 21-40). It was only in cases in which such sentence of death was pronounced that the judgment required to be ratified by the authority of the procurator."[3]

The Jews contend, and, indeed, the Talmud states that "forty years before the destruction of the temple the judgment of capital cases was taken away from Israel."

Again, we learn from Josephus that the Jews had lost the power to inflict capital punishment from the day of the deposition of Archelaus, A.D. 6, when Judea became a Roman province and was placed under the control of Roman procurators. The great Jewish historian says: "And now Archelaus's part of Judea was reduced into a province, and Coponius, one of the equestrian order among the Romans, was sent as procurator, having the power of life and death put into his hands by Cæsar."[4]

Again, we are informed that Annas was deposed from the high priesthood by the procurator Valerius Gratus, A.D. 14, for imposing and executing capital sentences. One of his sons, we learn from Josephus, was also deposed by King Agrippa for condemning James, the brother of Jesus, and several others, to death by stoning. At the same time, Agrippa reminded the high priest that the Sanhedrin could not lawfully assemble without the consent of the procurator.[5]

That the Jews had lost and that the Roman procurators possessed the power over life and death is also clearly indicated by the New Testament account of the trial of Jesus. One passage explicitly states that Pilate claimed the right to impose and carry out capital sentences. Addressing Jesus, Pilate said: "Knowest thou not that I have power to crucify thee and have power to release thee?"[6]

In another passage, the Jews admitted that the power of life and death had passed away from them. Answering a question of Pilate, at the time of the trial, they answered: "It is not lawful for us to put any man to death."[7]

If we keep in mind the fact stated by Geib that "the principle that applied in Judea was that at least in regard to questions of religious offense the high priest with the Sanhedrin could pronounce even death sentences, for the carrying out of which, however, the confirmation of the procurator was required," we are then in a position to answer finally and definitely the question, Why were there two trials of Jesus?

In the light of all the authorities cited and discussed in this chapter, we feel justified in asserting that the Sanhedrin was competent to take the initiative in the arrest and trial of Jesus on the charge of blasphemy, this being a religious offense of the most awful gravity; that this court was competent not only to try but to pass sentence of death upon the Christ; but that its proceedings had to be retried or at least reviewed before the sentence could be executed. Thus two trials were necessary. The Hebrew trial was necessary, because a religious offense was involved with which Rome refused to meddle, and of which she refused to take cognizance in the first instance. The Roman trial was necessary, because, instead of an acquittal which would have rendered Roman interference unnecessary, a conviction involving the death sentence had to be reviewed in the name of Roman sovereignty.

Having decided that there were two trials, we are now ready to consider the questions: Were the two trials separate and independent? If not, was the second trial a mere review of the first, or was the first a mere preliminary to the second? No more difficult questions are suggested by the trial of Jesus. It is, in fact, impossible to answer them with certainty and satisfaction.

A possible solution is to be found in the nature of the charge preferred against Jesus. It is reasonable to suppose that in the conflict of jurisdiction between Jewish and Roman authority the character of the crime would be a determining factor. In the case of ordinary offenses it is probable that neither Jews nor Romans were particular about the question of jurisdiction. It is more than probable that the Roman governor would assert his right to try the case de novo, where the offense charged either directly or remotely involved the safety and sovereignty of the Roman state. It is entirely reasonable to suppose that the Jews would insist on a final determination by themselves of the merits of all offenses of a religious nature; and that they would insist that the Roman governor should limit his action to a mere countersign of their decree. It is believed that ordinarily these principles would apply. But the trial of Jesus presents a peculiar feature which makes the case entirely exceptional. And this peculiarity, it is felt, contains a correct answer to the questions asked above. Jesus was tried before the Sanhedrin on the charge of blasphemy. This was a religious offense of the most serious nature. But when the Christ was led before Pilate, this charge was abandoned and that of high treason against Rome was substituted. Now, it is certain that a Roman governor would not have allowed a Jewish tribunal to try an offense involving high treason against Cæsar. This was a matter exclusively under his control. It is thus certain that Pilate did not merely review a sentence which had been passed by the Sanhedrin after a regular trial, but that he tried ab initio a charge that had not been presented before the Jewish tribunal at the night session in the palace of Caiaphas.

It will thus be seen that there were two trials of Jesus; that these trials were separate and independent as far as the charges, judges, and jurisdictions were concerned; and that the only common elements were the persons of the accusers and the accused.

CHAPTER III

POWERS AND DUTIES OF PILATE

W WHAT were the powers and duties of Pilate as procurator of Judea? What forms of criminal procedure, if any, were employed by him in conducting the Roman trial of Jesus? This chapter will be devoted to answering these questions.

The New Testament Gospels denominate Pilate the "governor" of Judea. A more exact designation is contained in the Latin phrase, procurator Cæsaris; the procurator of Cæsar. By this is meant that Pilate was the deputy, attorney, or personal representative of Tiberius Cæsar in the province of Judea. The powers and duties of his office were by no means limited to the financial functions of a Roman quæstor, a procurator fiscalis. "He was a procurator cum potestate; a governor with civil, criminal, and military jurisdiction; subordinated no doubt in rank to the adjacent governor of Syria, but directly responsible to his great master at Rome."

A clear conception of the official character of Pilate is impossible unless we first thoroughly understand the official character of the man whose political substitute he was. A thorough understanding of the official character of Tiberius Cæsar is impossible unless we first fully comprehend the political changes wrought by the civil wars of Rome in which Julius Cæsar defeated Cneius Pompey at the battle of Pharsalia and made himself dictator and undisputed master of the Roman world. With the ascendency of Cæsar the ancient republic became extinct. But liberty was still cherished in the hearts of Romans, and the title of king was detestable. The hardy virtues and democratic simplicity of the early republic were still remembered; and patriots like Cicero had dreamed of the restoration of the ancient order of things. But Roman conquest was complete, Roman manners were corrupt, and Roman patriotism was paralyzed. The hand of a dictator guided by a single intelligence was the natural result of the progressive degradation of the Roman state. The logical and inevitable outcome of the death of Cæsar and the dissolution of the Triumvirate was the régime of Augustus, a monarchy veiled under republican forms. Recognizing Roman horror of absolutism, Roman love of liberty, and Roman detestation of kingly power, Augustus, while in fact an emperor, claimed to be only a plain Roman citizen intrusted with general powers of government. He affected to despise public honors, disclaimed every idea of personal superiority, and exhibited extreme simplicity of manners in public and private life. This was the strategy of a successful politician who sought to conceal offensive reality under the cloak of a pleasant deception. Great Cæsar fallen at the foot of Pompey's statue was a solemn reminder to Augustus that the dagger of the assassin was still ready to defend the memory of freedom, after liberty was, in reality, dead. And the refusal by the greatest of the Romans, at the feast of the Lupercal, to accept a kingly crown when it was thrice offered him by Antony, was a model of discreet behavior and political caution for the first and most illustrious of the emperors. In short, Augustus dared not destroy the laws or assault the constitution of the state. But he accomplished his object, nevertheless. "He gathered into his own hands the whole honors and privileges, which the state had for centuries distributed among its great magistrates and representatives. He became perpetual Princeps Senatus, or leader of the legislative house. He became perpetual Pontifex Maximus, or chief of the national religion. He became perpetual Tribune, or guardian of the people, with his person thereby made sacred and inviolable. He became perpetual Consul, or supreme magistrate over the whole Roman world, with the control of its revenues, the disposal of its armies, and the execution of its laws. And lastly he became perpetual Imperator, or military chief, to whom every legionary throughout the world took the sacramentum, and whose sword swept the globe from Gibraltar to the Indus and the Baltic. And yet in all he was a simple citizen—a mere magistrate of the Republic. Only in this one man was now visibly accumulated and concentrated all that for centuries had broadened and expanded under the magnificent abstraction of Rome." The boundless authority of Rome was thus centered in the hands of a single person. Consuls, tribunes, prætors, proconsuls, and procurators were merely the agents and representatives of this person.

Tiberius Cæsar, the political master of Pontius Pilate, was the successor of Augustus and the first inheritor of his constitution. Under this constitution, Augustus had divided the provinces into two classes. The centrally located and peacefully disposed were governed by proconsuls appointed by the senate. The more distant and turbulent were subjected by Augustus to his personal control, and were governed by procurators who acted as his deputies or personal representatives. Judea came in his second class, and the real governor of his province was the emperor himself. Tiberius Cæsar was thus the real procurator of Judea at the time of the crucifixion and Pilate was his political substitute who did his bidding and obeyed his will. Whatever Tiberius might have done, Pilate might have done. We are thus enabled to judge the extent of Pilate's powers; powers clothed with imperium and revocable only by the great procurator at Rome.

In the government of the purely subject states of a province, the procurator exercised the unlimited jurisdiction of the military imperium. No law abridged the single and sovereign exercise of his will. Custom, however, having in fact the force of law, prescribed that he should summon to his aid a council of advisers. This advisory body was composed of two elements: (1) Roman citizens resident in this particular locality where the governor was holding court; and (2) members of his personal staff known as the Prætorian Cohort. The governor, in his conduct of judicial proceedings, might solicit the opinions of the members of his council. He might require them to vote upon the question at issue; and might, if he pleased, abide by the decision of the majority. But no rule of law required him to do it; it was merely a concession and a courtesy; it was not a legal duty.

Again, when it is said that the procurator exercised the "unlimited jurisdiction of the military imperium," we must interpret this, paradoxical though it may seem, in a restricted sense; that is, we must recognize the existence of exceptions to the rule. It is unreasonable to suppose that Rome, the mother of laws, ever contemplated the rule of despotism and caprice in the administration of justice in any part of the empire. It is true that the effect of the imperium, "as applied to provincial governorship, was to make each imperator a king in his own domain"; but kings themselves have nearly always been subject to restrictions; and the authorities are agreed that the imperium of the Roman procurator of the time of Christ was hemmed in by many limitations. A few of these may be named.

In the first place, the rights guaranteed to subject states within the provincial area by the law of the province (lex provinciæ) were the first limitations upon his power.

Again, it is a well-known fact that Roman citizens could appeal from the decision of the governor, in certain cases, to the emperor at Rome. Paul exercised this right, because he was a Roman citizen.[8] Jesus could not appeal from the judgment of Pilate, because He was not a Roman citizen.

Again, fear of an aroused and indignant public sentiment which might result in his removal by the emperor, exercised a salutary restraint upon the conduct, if it did not abridge the powers of the governor.

These various considerations bring us now to the second question asked in the beginning of this chapter: What forms of criminal procedure, if any, were employed by Pilate in conducting the Roman trial of Jesus?

It is historically true that Pilate exercised, as procurator of Judea, the unlimited jurisdiction of the military imperium; and that this imperium made him virtually an "imperator, a king in his own domain." It is also historically true that the inhabitants of the purely subject states of a province, who were not themselves Roman citizens, when accused of crime, stood before a Roman governor with no protection except the plea of justice against the summary exercise of absolute power. In other words, in the employment of the unlimited jurisdiction of the military imperium, a Roman governor, in the exercise of his discretion, might, in the case of non-Roman citizens of a subject state, throw all rules and forms of law to the wind, and decide the matter arbitrarily and despotically. It may be that Pilate did this in this case. But the best writers are agreed that this was not the policy of the Roman governors in the administration of justice in the provinces at the time of Christ. The lawgiving genius of Rome had then reached maturity and approximate perfection in the organization of its criminal tribunals. It is not probable, as before suggested, that despotism and caprice would be systematically tolerated anywhere in the Roman world. If the emperors at Rome were forced, out of regard for public sentiment, to respect the constitution and the laws, it is reasonable to infer that their personal representatives in the provinces were under the same restraint. We feel justified then in asserting that Pilate, in the trial of Jesus, should have applied certain laws and been governed by certain definite rules of criminal procedure. What were these rules? A few preliminary considerations will greatly aid the reader in arriving at an answer to this question. It should be understood:

(1) That Pilate was empowered to apply either Roman law or the local law in the trial of any case where the crime was an offense against both the province and the empire, as in the crime of murder; but that in the case of treason with which Jesus was charged he would apply the law of Rome under forms of Roman procedure. It has been denied that Pilate had a right to apply Jewish law in the government of his province; but this denial is contrary to authority. Innes says: "The Roman governor sanctioned, or even himself administered, the old law of the region."[9] Schürer says: "It may be assumed that the administration of the civil law was wholly in the hands of the Sanhedrin and native or local magistrates: Jewish courts decided according to Jewish law. But even in the criminal law this was almost invariably the case, only with this exception, that death sentences required to be confirmed by the Roman procurator. In such cases, the procurator decided, if he pleased, according to Jewish law."[10] Greenidge says: "Even the first clause of the Sicilian lex, if it contained no reference to jurisdiction by the local magistrate, left the interpretation of the native law wholly to Roman proprætors."[11] It is thus clearly evident that Roman procurators might apply either Roman or local laws in ordinary cases.

(2) That Roman governors were empowered to apply the adjective law of Rome to the substantive law of the province. In support of this contention, Greenidge says: "The edict of the proprætor or pro-consul, ... clearly could not express the native law of each particular state under its jurisdiction; but its generality and its expansiveness admitted, as we shall see, of an application of Roman forms to the substantive law of any particular city."[12]

(3) That the criminal procedure employed by Pilate in the trial of Jesus should have been the criminal procedure of a capital case tried at Rome, during the reign of Tiberius Cæsar. This fact is very evident from the authorities. The trial of capital cases at Rome furnished models for similar trials in the provinces. In the exercise of the unlimited jurisdiction of the military imperium, Roman governors might disregard these models. But, ordinarily, custom compelled them to follow the criminal precedents of the Capital of the empire. The following authorities support this contention.

Rosadi says: "It is also certain that in the provinces the same order was observed in criminal cases as was observed in cases tried at Rome."[13] This eminent Italian writer cites, in proof of this statement, Pothier, Pandect. XLVIII. 2, n. 28.

Greenidge says: "Yet, in spite of this absence of legal checks, the criminal procedure of the provinces was, in the protection of the citizen as in other respects, closely modelled on that of Rome."[14]

To the same effect, but more clearly and pointedly expressed, is Geib, who says: "It is nevertheless true that the knowledge which we have, imperfect though it may be, leaves no doubt that the courts of the Italian municipalities and provinces had, in all essential elements, the permanent tribunals (quæstiones perpetuæ) as models; so that, in fact, a description of the proceedings in the permanent tribunals is, at the same time, to be regarded as a description of the proceedings in the provincial courts."[15]

These permanent tribunals (quæstiones perpetuæ) were courts of criminal jurisdiction established at Rome, and were in existence at the time of the crucifixion. Proceedings in these courts in capital cases, were models of criminal procedure in the provinces at the time of Christ. It logically follows then that if we can ascertain the successive steps in the trial of a capital case at Rome before one of the permanent tribunals, we have accurate information of the exact form of criminal procedure, not that Pilate did employ, but which he should have employed in the trial of Jesus.

Fortunately for the purposes of this treatise, every step which Roman law required in the trial of capital cases at Rome is as well known as the provisions of any modern criminal code. From the celebrated Roman trials in which Cicero appeared as an advocate, may be gleaned with unerring accuracy the fullest information touching all the details of capital trials at Rome at the time of Cicero.

It should be observed, at this point, that the period of Roman jurisprudence just referred to was in the closing years of the republic; and that certain changes in the organization of the tribunals as well as in the forms of procedure were effected by the legislation of Augustus. But we have it upon the authority of Rosadi that these changes were not radical in the case of the criminal courts and that the rules and regulations that governed procedure in them during the republic remained substantially unchanged under the empire. The same writer tells us that the permanent tribunals for the trial of capital cases did not go out of existence until the third century of the Christian era.[16]

The following chapter will be devoted, in the main, to a description of the mode of trial of capital cases at Rome before the permanent tribunals at the time of Christ.

CHAPTER IV

MODE OF TRIAL IN ROMAN CAPITAL CASES

T THE reader should keep clearly and constantly in mind the purpose of this chapter: to describe the mode of trial in capital cases at Rome during the reign of Tiberius Cæsar; and thus to furnish a model of criminal procedure which Pilate should have imitated in the trial of Jesus at Jerusalem. In the last chapter, we saw that the proceedings of the permanent tribunals (quæstiones perpetuæ) at Rome furnished models for the trial of criminal cases in the provinces. It is now only necessary to determine what the procedure of the permanent tribunals at the time of Christ was, in order to understand what Pilate should have done in the trial of Jesus. But the character of the quæstiones perpetuæ, as well as the rules and regulations that governed their proceedings, cannot well be understood without reference to the criminal tribunals and modes of trial in criminal cases that preceded them. Roman history discloses two distinct periods of criminal procedure before the organization of the permanent tribunals about the beginning of the last century of the Republic: (1) The period of the kings and (2) the period of the early republic. Each of these will be here briefly considered.

The Regal Period.—The earliest glimpses of Roman political life reveal the existence of a sacred and military monarchy in which the king is generalissimo of the army, chief pontiff of the national religion, and supreme judge in civil and criminal matters over the lives and property of the citizens. These various powers and attributes are wrapped up in the imperium. By virtue of the imperium, the king issued commands to the army and also exercised the highest judicial functions over the lives and fortunes of his fellow-citizens. The kings were thus military commanders and judges in one person, as the consuls were after them. The monarch might sit alone and judge cases and impose sentences; but the trial was usually a personal investigation undertaken by him with the advice and aid of a chosen body of judges from the senate or the pontifical college. According to Dionysius, Romulus ordered that all crimes of a serious nature should be tried by the king, but that all lighter offenses should be judged by the senate.[17] Little confidence can be reposed in this statement, since the age and deeds of Romulus are exceedingly legendary and mythical. But it is historically true that in the regal period of Rome the kings were the supreme judges in all civil and criminal matters.

The Early Republican Period.—The abolition of the monarchy and the establishment of the republic witnessed the distribution of the powers of government formerly exercised by the king among a number of magistrates and public officers. Consuls, tribunes, prætors, ædiles, both curule and plebeian, exercised, under the republic, judicial functions in criminal matters.

The consuls were supreme criminal judges at the beginning of the republic, and were clothed with unlimited power in matters of life and death. This is shown by the condemnation and execution of the sons of Brutus and their fellow-conspirators.[18] Associated with the consuls were, at first, two annually appointed quæstors whom they nominated. The functions of the quæstors were as unlimited as those of their superiors, the consuls; but their jurisdiction was confined chiefly to criminal matters and finance.

The tribunes, sacred and inviolable in their persons as representatives of the plebs and as their protectors against patrician oppression, exercised at first merely a negative control over the regular magistracies of the community. But, finally, they became the chief public prosecutors of political criminals.

The prætors, whose chief jurisdiction was in civil matters, were potentially as fully criminal judges as the consuls, and there may have been a time when a portion of criminal jurisdiction was actually in their hands. In the later republic, they presided over the quæstiones perpetuæ, permanent criminal tribunals.

The ædiles are found in Roman history exercising functions of criminal jurisdiction, although their general powers were confined to the special duties of caring for the games, the market, and the archives.

But the criminal jurisdiction of the magistrates who replaced the king at the downfall of the monarchy was abridged and almost destroyed by the famous lex Valeria (de provocatione). This law was proposed 509 B.C. by Publius Valerius, one of the first consuls of Rome, and provided that no magistrate should have power to execute a sentence of death against a Roman citizen who had appealed to the judgment of the people in their public assembly. This lex was the magna charta of the Romans and was justly regarded by them as the great palladium of their civil liberty. And it was this law that inaugurated the popular jurisdiction of the comitia. The result was that for more than three hundred years the final determination of the question of life or death was in the hands of the people themselves. From the passage of the Valerian law the function of the magistrates was limited to the duty of convincing the people of the guilt of an alleged criminal against whom they themselves had already pronounced a preliminary sentence. The magistrates were, therefore, not so much judges as prosecutors; the people were the final judges in the case.

Mode of Trial in the Comitia, or Public Assembly.—On a certain day, the prosecuting magistrate, who had himself pronounced the preliminary sentence against an accused person who had appealed to the people in their public assembly, mounted the rostra, and called the people together by the voice of a herald. He then made a proclamation that on a certain day he would bring an accusation against a certain person upon a given charge. At the same time, he called upon this person to come forward and hear the charges against him. The defendant then presented himself, listened to the accusation, and immediately furnished bond for his appearance, or in default of bail, was thrown into prison. Upon the day announced at the opening of the trial, the prosecuting magistrate again mounted the rostra, and summoned the accused by a herald, if he was at large, or had him brought forth if he was in prison. The prosecutor then produced evidence, oral and documentary, against the prisoner. The indictment had to be in writing, and was published on three market days in the Forum. The prosecution came to an end on the third day, and the accused then began his defense by mounting the rostra with his patron and presenting evidence in his own behalf. The prosecutor then announced that on a certain day he would ask the people to render judgment by their votes. In the early years of the republic, the people voted by shouting their approval or disapproval of the charges made; but later a tablet bearing one of the two letters V. (uti rogas) or A. (absolvo) was used as a ballot.

The effect of popular jurisdiction in criminal processes at Rome was in the nature of a two-edged sword that cut both ways. It was beneficial in the limitations it imposed upon the conduct of single magistrates who were too often capricious and despotic. But this benefit was purchased at the price of a kind of popular despotism not less dangerous in its way. It has always been characteristic of popular assemblies that their decisions have been more the outcome of passion and prejudice than the result of calm wisdom and absolute justice. The trouble at Rome was that the people were both legislators and judges in their public assemblies; and it nearly always happened that the lawmakers rose above and trampled upon the very laws which they themselves had made. The natural offspring of this state of things is either anarchy or despotism; and it was only the marvelous vitality of the Roman Commonwealth that enabled it to survive.

The reports of the great criminal trials before the comitia reveal the inherent weakness of a system of popular jurisdiction in criminal matters. Personal and political considerations foreign to the merits of the case were allowed to take the place of competent evidence; and issues of right and expediency were too frequently mixed up. The accused, at times, trusted not so much in the righteousness of his cause as in the feelings of compassion and prejudice that moved the people as popular judges. And to excite these feelings the most ludicrous and undignified steps were sometimes taken. The defendant nearly always appeared at the trial in mourning garb, frequently let his hair and beard grow long, and often exhibited the scars and wounds received in battle whilst fighting for his country. He sometimes offered prayers to the immortal gods and wept bitterly; at other times he caused his children and other relatives to appear at the trial, wailing, and tearing their clothes. Not content with presenting all the pathetic features of his own life, he left nothing undone to expose his opponents to hatred and contempt. It thus happened that many of the great criminal causes of Rome were mere farcical proceedings. A few instances may be cited.

Horatius, though tried in the time of the third Roman king, was pardoned by the people for the murder of his sister because of his heroic deed in single combat with the three Curiatii, and because his father had lost three children in the service of the state.

In the year 98, Manlius Aquillius, the pacificator of Sicily, was tried for embezzlement. Marcus Antonius, his advocate, ended his argument for the defense by tearing the tunic of Aquillius to show the breast of the veteran warrior covered with scars. The people were moved to tears and Aquillius was acquitted, although the evidence was very clear against him.

In the trial of M. Manlius, 384 B.C., new tactics were employed. The accused refused to appear in mourning. There was no weeping in his behalf. On the other hand, Manlius relied upon his services to the state for acquittal. He brought forward four hundred citizens who by his generosity he had saved from bondage for debt; he exhibited the spoils taken from thirty slain enemies, also military decorations received for bravery in battle—among them two mural and eight civic crowns; he then produced many citizens rescued by him from the hands of the enemy; he then bared his breast and exhibited the scars received by him in war; and, lastly, turning toward the Capitol, he implored Jupiter to protect him, and to infuse, at this moment, into the Roman people, his judges, the same spirit of courage and patriotism that had given him strength to save the city of Rome and his whole country from the hands of the Gauls. He begged the people to keep their eyes fixed on the Capitol while they were pronouncing sentence against him to whom they owed life and liberty. It is said that his prosecutors despaired of convicting him amidst such surroundings, and adjourned the trial to another place, where the Capitol could not be seen; and that thereupon the conviction of Manlius was secured and his condemnation pronounced.