NUMBER OF REGULAR TRIALS
_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.