CHAPTER II

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.

The Trial of Jesus from a Lawyer's Standpoint, Vol. 2 (of 2) The Roman Trial · 第 2 / 14 章