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.