We must not forget, _that Judea was a conquered country_. After the death
of Herod—most inappropriately surnamed _the Great_—Augustus had confirmed
his last will, by which that king of the Jews had arranged the division of
his dominions between _his_ two sons: but Augustus did not continue their
title of _king_, which their father had borne.
Archeläus, on whom Judea devolved, having been recalled on account of his
cruelties, the territory, which was at first intrusted to his command, was
united to the province of Syria. (_Josephus_, Antiq. Jud. lib. 17, cap.
15.)
Augustus then appointed particular officers for Judea. Tiberius did the
same; and at the time of which we are speaking, Pilate was one of those
officers. (_Josephus_, lib. 18, cap. 3 & 8.)
Some have considered Pilate as governor, by title, and have given him the
Latin appellation, _Præses_, president or governor. But they have mistaken
the force of the word. Pilate was one of those public officers, who were
called by the Romans, _procuratores Cæsaris_, Imperial procurators. With
this title of _procurator_, he was placed under the superior authority of
the governor of Syria, the true _præses_, or governor of that province, of
which Judea was then only one of the dependencies.
To the governor (_præses_) peculiarly belonged the right of taking
cognizance of _capital_ cases.(410) The _procurator_, on the contrary,
had, for his principal duty, nothing but the collection of the revenue,
and the trial of revenue causes. But the right of taking cognizance of
_capital_ cases did, in some instances, belong to certain _procurators_,
who were sent into small provinces to fill the places of governors (_vice
præsides_), as appears clearly from the Roman laws.(411) Such was _Pilate_
at Jerusalem.(412)
The Jews, placed in this political position—notwithstanding they were left
in the enjoyment of their civil laws, the public exercise of their
religion, and many things merely relating to their police and municipal
regulations—the Jews, I say, had not the _power of life and death_; this
was a principal attribute of sovereignty, which the Romans always took
great care to reserve to themselves, even if they neglected other things.
_Apud Romanos, jus valet gladii; cætera transmittuntur_. TACIT.
What then was the right of the Jewish authorities in regard to Jesus?
Without doubt the scribes, and their friends the Pharisees, might well
have been alarmed, as a body and individually, at the preaching and
success of Jesus; they might be concerned for their worship; and they
might have interrogated the man respecting his creed and his
doctrines,—they might have made a kind of preparatory proceeding,—they
might have declared, in point of fact, that those doctrines, which
threatened their own, were contrary to their law, as understood by
themselves.
But that law, although it had not undergone any alteration as to the
affairs of religion, had no longer any coercive power as to the external
or civil regulations of society. In vain would they have undertaken to
pronounce sentence of death under the circumstances of the case of Jesus;
the council of the Jews had not the power to pass a _sentence of death_;
it only would have had power to make _an accusation_ against him before
the governor, or his deputy, and then deliver him over to be tried by him.
Let us distinctly establish this point; for here I entirely differ in
opinion from Mr. Salvador. According to him, (p. 88), “the Jews had
_reserved the power of trying, according to their law_; but it was in the
hands of the _procurator_ alone, that the executive power was vested;
every culprit must be put to death by _his_ consent, in order that the
senate should not have the means of reaching persons that were sold to
foreigners.”
No; the Jews had not reserved _the right of passing sentence of death_.
This right had been transferred to the Romans by the very act of conquest;
and this was not merely that the senate should not have the means of
reaching persons who were sold to foreign countries; but it was done, in
order that the conqueror might be able to reach those individuals who
should become _impatient of the yoke_; it was, in short, for the equal
protection of all, as all had become Roman subjects; and to Rome alone
belonged the highest judicial power, which is the principal attribute of
sovereignty. Pilate, as the representative of Cæsar in Judea, was not
merely an agent of the _executive authority_, which would have left the
_judiciary_ and _legislative_ power in the hands of the conquered
people—he was not simply an officer appointed to give an _exequatur_ or
mere approval (_visa_) to sentences passed by _another authority_, the
_authority of the Jews_. When the matter in question was a _capital_ case,
the Roman authorities not only ordered the _execution_ of a sentence, but
also took cognizance (_cognitio_) of the crime; it had the right of
jurisdiction _à priori_, and that of _passing judgment in the last
resort_. If Pilate himself had not had this power by special delegation,
_vice præsidis_, it was vested in the governor, within whose territorial
jurisdiction the case occurred; but in any event we hold it to be clear,
that the Jews had lost the right of _condemning to death_ any person
whatever, not only so far as respects the _execution_ but the _passing_ of
the sentence. This is one of the best settled points in the provincial law
of the Romans.
The Jews were not ignorant of this; for when they went before Pilate, to
ask of him the condemnation of Jesus, they themselves declared, that it
was not permitted to them to put any person to death: “It is not lawful
for us to put any man to death.” John xviii. 31.
Here I am happy to be able to support myself by the opinion of a very
respectable authority, the celebrated Loiseau, in his treatise on
_Seigneuries_, in the chapter on the administration of _justice belonging
to cities_. “In truth,” says he, “there is some evidence, that the
_police_, in which the people had the sole interest, was administered by
officers of the people; but I know not upon what were founded the
concessions of power to some cities of France to exercise criminal
jurisdiction; nor why the Ordinance of Moulins left that to them rather
than civil cases; for the criminal jurisdiction is the _right of the
sword_, the _merum imperium_, or absolute sovereignty. Accordingly, by the
Roman law, the administration of justice was so far prohibited to the
officers of cities, that they could not punish even by a simple fine.
_Thus it is doubtless that we must understand_ that passage of the Gospel,
where the Jews say to Pilate, _It is not lawful for us to put any man to
death_; for, after they were subjected to the Romans, they had not
jurisdiction of crimes.”
Let us now follow Jesus to the presence of Pilate.