Chapter XXXV: Section VIII: The Position of the Jews in Respect to the Romans

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.