CHAPTER III

POWERS AND DUTIES OF PILATE

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.

The Trial of Jesus from a Lawyer's Standpoint, Vol. 2 (of 2) The Roman Trial · 第 3 / 14 章