2. Roman Judicial Procedure

The Law of Moses, perpetuated though in altered form by Christianity, was perhaps the most influential legislation in the world. But this law had a rival in the law of mighty Rome. The written reason of Roman law has poured itself “into all our modern life,” and the jurists of all modern nations look with filial reverence upon their predecessors, the great jurisconsults of the imperial republic. Yet between these two influences there is an important distinction.

In Jewish society, law was the product of religion. It was ascribed a divine origin, acknowledged as such by Christianity as well. There is no indication that the Jewish people were distinguished by any innate sense of justice or irresistible drive toward righteousness that, apart from religion and of itself, would have led the nation to create and develop a national legal tradition—a drive that might even have preceded religion. The entire history and literature of the Jews shows, on the contrary, that it was religion itself that molded the Jewish people into their particular form and subsequently led to a wide, though imperfect, development of the art of goodness and equity (ars boni et aequi), or jurisprudence. The Rabbinic elaboration of God-given law, as we have seen, is characterized by constant exaggerations and tortuous subtleties, betraying the natural incapacity of this people for the higher degrees of judicial excellence. For this reason, in the era with which we are now concerned, they remained a weak, isolated, Asiatic people steeped through and through in national and religious prejudices. It is not among such peoples that one must seek models of equitable law and its just and intelligent application to life. But in the world there were, as there are now, peoples endowed in the highest degree with that deep sense of justice that underlies all law. And among all these peoples, ancient and modern, the greatest must be acknowledged to be that which held dominion over Palestine and the world in the period we are examining. When the scepter, wrested from Judah, passed into the powerful and formidable hands of Rome, all nations began to exchange their fear of that martial power for admiration of its governmental wisdom—an admiration that has not diminished to this day. This admiration was joined, moreover, with trust and willing devotion to that wisdom. The Eastern peoples then instinctively sensed what we, two millennia later, can trace historically—namely, that Roman law owed its incomparable authority to the stern virtues of the Latin race and of the pre-imperial republic. The compelling force of that law was acknowledged then instinctively, and it is now possible to trace clearly how the law arose from that instinct of justice which guided the praetor and proconsul in every conquered land long before Ulpian or Gaius gave that instinct the form of an immortal written law.

Pontius Pilate was at this time the representative of Rome in Judea, the governor, as he is called in the Gospels (Matt. 27:2). He was Procurator Caesaris, that is, the authorized representative or deputy of Tiberius in this province. He was not merely a procurator fiscalis with powers no greater than those of a quaestor. Pilate’s rank was not a subordinate or financial post. Pilate was a procurator cum potestate, a governor endowed with civil, judicial, and military authority, subordinate without doubt by his rank to the neighboring governor of Syria, but directly answerable only to the great lord in Rome. But what was the emperor’s own relationship to the inhabitants of Judea and to the world? The answer to this is of great importance. The emperor was nothing more and nothing less than the representative of Rome. In modern times, the imperial title has come to be associated with the notion of an unlimited power exceeding that of kings. For Romans, even in the days of Tiberius, the name of king was intolerable, and absolutism, if it did not conceal itself beneath republican forms, aroused their indignation. Accordingly, Augustus, having become the uncontested head of the republic and resolved to consolidate this state of affairs, remained by name simply a private patrician or citizen. The “Savior of Society” dared not violate the established constitutional order. He gathered into his own hands all the powers and offices, all the honors and privileges that the state had distributed over past centuries among its chief magistrates and representatives. He became the permanent Princeps Senatus, or president of the legislative assembly. He became the permanent Pontifex Maximus, or head of the national religion. He became the permanent tribune, or protector of the people, by which his person became sacred and inviolable. He became the permanent consul, or supreme magistrate over the entire Roman world, with the right to audit revenues, command troops, and enforce laws by force. Finally, he became the permanent imperator, or military commander, to whom every soldier in every legion swore allegiance, and whose sword reached from the Indus and Gibraltar to the ends of the earth. And through all of this he remained a simple citizen, merely a magistrate of the republic. In this one man was now visibly gathered and concentrated all that Rome over the centuries had acquired and spread, and all that subject peoples attributed specifically to Rome. Thus Tiberius, the first heir of the political order created by Caesar Augustus, was in the strictest sense the representative of that great city which held dominion over the kings of the earth. In turn, the Roman knight now governing Judea was the representative of Tiberius and his civic authority. Augustus, as is well known, divided the provinces into two classes. He left to the Senate the right to send proconsuls to the more peaceful and central provinces, while retaining his own consular and military authority over them. Certain provinces, like Judea, he retained in his own hands as their proconsul or governor. In the strict and legal sense, the ruler of the Jewish people at the time of which we write was not Pilate in Caesarea or Vitellius in Antioch, but Tiberius in Rome. He was the proconsul or governor of Judea on behalf of the still-existing republic—a republic now almost identified with himself. And Pilate, whom the Jews customarily called their governor, was in the strict sense the procurator or legate of this great proconsul, exercising civil and military authority as the delegate of him in whom the boundless power of Rome was then concentrated. It was before this tribunal that the council of the Sanhedrin brought its Prisoner on Friday.

On the morning of that Friday, Pilate was presiding in his praetorium, hearing cases and administering justice as usual. It is impossible to determine with certainty in which part of Jerusalem his judgment seat was located on this occasion. It may have been in the fortress beneath the Tower of Antonia—that visible symbol of Roman dominion looming threateningly near the temple—or perhaps (and this is far more probable) the Roman tribunal was held in the “praetorium of Herod,” the magnificent palace to the north of the temple, described by Josephus and built not long before by the Idumean kings. Before the palace lay a white marble semicircle, forming an open space facing the holy city, and serving as almost as public a place as the area between the Antonia fortress and the temple. On this pavement a portable tribunal (Bema, or βήμα) could be erected within a very short time. On this morning Pilate was still seated in the judgment hall—inside the palace; from without came the noise of an Eastern city awakening on the eve of Passover; within rang the clatter of Roman arms, the altars of Roman gods stood about, and perhaps there stood too a sculptural image of the distant demigod Tiberius. The priests and teachers of the people, who strictly observed their national customs, could not enter this pagan hall throughout the entire sacred Passover week; and the Roman, with his Roman smile, readily removed this difficulty by going out himself beyond the gates with his warrior-lictors. “When Pilate’s gaze fell upon the Prisoner standing before him with bound hands, the governor’s first words were: What accusation bring ye against this man? (John 18:29). We hear at once the authentic voice of Roman justice. Without doubt these words pointed directly to Pilate’s own right and authority to re-examine the case. They cannot be understood otherwise. They also recall the noble declaration of Pilate’s successor in that seat: ‘It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him’ (Acts 25:16). So spoke always even the worst of Roman governors (and neither Pilate nor Festus belonged to the best)—by mere instinct and tradition of justice that never left them even among treacherous peoples. The chief priests and scribes were unwilling to present the required accusation in definite terms. ‘If he were not a malefactor,’ they said, ‘we would not have delivered him up unto thee’ (John 18:30). This insolent evasion of a direct answer to Pilate’s question could not dispose him in favor of the accusers, and he at once placed the matter on its proper legal footing with a calm, if somewhat contemptuous, rejoinder: Take ye him, and judge him according to your law (John 18:31). To this the accusers replied with persistence: It is not lawful for us (οὐκ ἔξεστιν) to put any man to death. The answer explained what was perhaps already implied in the word “malefactor,” and what was plainly indicated by the presentation of the Prisoner before Pilate’s tribunal—namely, that they had come to bring a criminal charge. With this the preliminary exchange concluded.

At this point in the present narrative there arises a question of conflicting judicial authorities and jurisdiction. Why did the Jews go to Pilate when their Sanhedrin had pronounced over Jesus the verdict: He is guilty of death (Matt. 26:66)? Were the Jews entitled to pronounce such a verdict? Or, having this right, did they merely lack the power to carry it out? How far did the governor’s authority extend: could he overturn the Sanhedrin’s verdict, or only stay its execution? Who of the two—the governor or the Sanhedrin—held the ius vitae aut necis (the right of life or death)? What was the relationship at the time of Jesus between the two authorities—Jewish and Roman?

These questions are extremely difficult, and scholars in their answers express opinions that are diametrically opposed to one another. In the dispute between Salvador and Dupin, the former (remaining in this case true to the fateful cry of his people: “His blood be on us and on our children”) attempted to prove that the Sanhedrin had the full right to try even criminal cases, and that its death sentence required only the ratification of the Roman governor. Salvador’s opponent maintained that the Jewish court had no right at all to try grave or at least criminal offenses—that all its proceedings in the present trial were an abuse of power, and that the only valid or lawful trial was the one that took place before Pilate. We do not intend to examine the enormous mass of historical research that has been done on this undeniably difficult point. The historical records preserve no precise and definitive indications for resolving the questions posed. Thus, for instance, it would be too hasty to ascribe the authority of chronological precision to the Talmudic testimony that “forty years before the destruction of the Temple, criminal jurisdiction was taken away from Israel.” Yet it is highly noteworthy in that it indicates the approximate time when, by the acknowledgment of the teachers of Jewish law, the power over life and death (already no doubt curtailed or abolished under the despotic rule of Herod) was finally taken from them. But concerning the relationship of the two authorities in question, several considerations may nonetheless be offered which, it seems, have not always been kept in mind by researchers. These considerations are as follows:

1) There was no treaty between the Romans and the Jews on this subject. The latter were a conquered people; their judicial rights, including the power over life and death, had been taken from them de facto (in practice), and they were obliged to submit. Yet de jure (in law) they never acknowledged this. For them, or at least for the great mass of the people, the Sanhedrin remained nonetheless the people’s authority, particularly in charges relating to religious matters.

2) From the Roman point of view the matter presented an entirely different appearance. The Romans’ attitude toward the judicial rights of conquered peoples in general and of the Jews in particular was that they should have such rights as their rulers chose to grant them. In most cases these rights were quite extensive. The Roman governor confirmed or even actively ensured the precise enforcement of the country’s existing laws; in this, the policy of the ruling power made every possible concession to local self-governance. Such concessions naturally assumed the broadest scope where the province showed no inclination to struggle against its conquerors. In Roman law as in Roman wars, in questions of justice as in questions of politics, the rule of the wise and proud masters of the world was parcere subjectis et debellare superbos (to spare the submissive and subdue the proud).

3) It is clear that in relation to this subject wide latitude was afforded to the higher Roman officials—proconsuls or procurators—in the exercise of their supreme judicial functions. The republic and the emperor permitted and even required them to extend or curtail their authority according as the particular case or circumstances demanded. The rule by which they were guided in ordinary matters brought before their tribunals was expressed to perfection a few years after the event that now occupies us by Annaeus Gallio, the humane proconsul of Achaia and brother of the philosopher Seneca: “If it were a matter of wrong or wicked lewdness, O ye Jews, reason would that I should bear with you: But if it be a question of words and names, and of your law, look ye to it; for I will be no judge of such matters” (Acts 18:14–15). Although Roman officials did withdraw from such questions as long as they did not touch the rights of the supreme power, the merest hint that one of those words or names, or one of those questions of another law, might injure the supreme power gave the governor the fullest right to “plunge his axe with swift and savage ferocity into the suspected part of the body politic.”

These general considerations must never be lost sight of when reading the fragmentary and often mutually incompatible historical accounts of this subject. They show that the extreme views maintained by modern critics were also defended in antiquity by the opposing authorities—Roman and local. But the weightiest arguments stand on the side of the proposition that at this time all cases entailing capital punishment were reserved by Roman law and practice to the final decision of the Roman governor. In such cases, the Jews were entitled only to the investigation of the case (cognitio causae). And there can be no doubt that the governor’s authority in such cases was not limited to a mere right of ratification and execution (executio); he also held the right of re-examination (recognitio), at least in those cases where he chose to exercise it. With regard to ordinary crimes—robbery and murder—the Jewish authorities could content themselves with handing the guilty over to the Roman tribunal and going no further. The Roman governor, on the other hand, could without contradiction and without further investigation on his own part send to the cross ordinary criminals against whom the native authorities, who had already investigated the case, appeared as accusers. But evidently a difficulty arose when the crime that constituted the subject of the charge belonged to the sphere of religion—when it consisted in an attempt, as prophet or Messiah, to alter the ecclesiastical institutions. In such a case the Sanhedrin, resting on the unanimous conviction of all Jews, without doubt reserved for itself the exclusive right of initial jurisdiction, and strove by every means to deflect any re-examination (recognitio) by the Roman authority—either by not resorting to that authority at all, or by limiting it to the mere right of confirming its verdicts. Such was the thinking of the Jews, and they could not think otherwise; but the Roman governor, should such a case be brought before his court, might take a completely different view.

The narrative of the Fourth Gospel, which records the actual words of the participants, depicts with remarkable fidelity the historical relationships of the parties portrayed at this time, and its account, combined with the testimony of the other Gospels, frees us from the necessity of proving the general propositions we have advanced. Whether it was lawful for the Jews to condemn on a criminal charge or not—in the present case they did so. Whether it was lawful or not for Pilate to examine anew the one they had condemned—in the present case he did so. Two distinct proceedings evidently took place. And the dialogue we have already cited depicts with striking art the struggle (which was to be expected) between the efforts of the Jews to obtain mere ratification of their verdict and Pilate’s resolve to take upon himself full judicial responsibility—both for a trial at first instance and for a re-examination of the case. The resistance of the Jews in the present case was founded, without doubt, not so much on their customary ecclesiastical independence as on the fear that Pilate, upon re-examining the case, would refuse to carry out their plan.

Be that as it may, the dispute that had begun drew the procurator into a public declaration before the persons belonging to both peoples who surrounded his judgment seat at the time—a declaration of his right and duty to take cognizance of this criminal case as judge. From this moment it was no longer a simple matter of administration, nor a brief police hearing or court-martial; it was now a genuine trial of life and death, conducted by the supreme civil governor, who had interposed his jurisdiction between the accused and the chief authorities of the conquered people.

The accusation demanded by Pilate was compelled to be brought, since he insisted firmly on his right as judge in this case. The accusation is described in considerable detail in the Gospel of Luke; and although it is omitted in the other three Gospels, the first question Pilate addressed to Jesus—mentioned in all the Gospels—gives us the right to conclude that his question was preceded by an accusation. Luke records the accusation in the following form: “We found this fellow perverting the nation, and forbidding to give tribute to Caesar, saying that he himself is Christ a King” (Luke 23:2). Had the accusation retained the form it had taken before the Sanhedrin—had a purely religious or ecclesiastical offense now been specified—a different question would have been put. If the chief priests, when they began to accuse Jesus, had said plainly what they cried out in passionate excitement at the close of the proceedings—“We have a law, and by our law he ought to die, because he made himself the Son of God” (John 19:7)—it might have been questionable what course Pilate would have taken. As governor, he had authority to enforce their law, or the right of supervision and oversight over it; but he might, like Gallio, have seen in the whole matter nothing but a dispute about words, though he might also have paused on the thought that those words carried serious implications for the state. The choice, however, was removed from him by the change in the form of the accusation. If we accept the language cited by Luke as equivalent to a formal indictment (nominis delatio) under Roman law, or to the sworn testimony of two (at least) witness-accusers under Jewish law, then both what precedes and what follows becomes clearer to us. The charge of perverting (διαστρέφοντα)—which perhaps comprehended both “stirring up sedition” and “leading astray” the people—had been quite sincerely and explicitly put forward in the Jewish proceedings of the preceding night. Without doubt this charge was ambiguous to Roman ears, yet this ambiguity did not prevent the accusers from bringing it. They had long since reasoned: “If we let him thus alone, all men will believe on him: and the Romans shall come and take away both our place and nation” (John 11:48). The main charge that Jesus called himself “Christ the King” was also true, and was acknowledged as true by the Accused himself—though scarcely in the sense in which the accusers expected the governor to understand it. But if we turn to Luke’s account, we find that the accusation did not stop at this ambiguous and inadequate form. The leaders of the prosecution did not wish to present a deliberately false charge before a pagan court. They wished, at the smallest possible cost in falsehood, to transfer to the foreign authority the hatred that the execution of a prophet was bound to arouse among the people. But Pilate’s declaration of Christ’s innocence (Luke 23:4), quite unexpected to them, seems to have driven them to the infamy they themselves would have preferred to avoid—and to the vague charges of perverting the people and of assuming the royal dignity of the Messiah they added, by way of clarification, the prohibition of giving tribute to Caesar (Luke 23:2). This last charge was a plain lie, and some of the accusers must have known that it stood in direct contradiction to the well-known answer of Jesus Christ on this very question. In this false accusation a particular detail was pointed out which, they were confident, could lend deadly force to the other, more indefinite though truthful counts of the charge, and place the governor in an impossible position to refuse to proceed with the criminal trial.

Thus we can now identify with certainty the crime laid by the accusation. It was “laesae maiestatis”—the offense of injured majesty—the greatest crime in Roman law, the greatest offense that Roman imagination could conceive: an attack upon the supreme authority or supreme majesty of the Roman state. In the early days of the republic the name perduellio was used to denote treason and rebellion, and a citizen convicted by the people of this crime was “deprived of fire and water” or hanged upon the ill-fated tree (arbor infelix). When the law of the city of Rome extended its authority to the limits of the world, treason acquired the meaning of an attack upon the majesty of the world-ruling city; various laws were enacted to define this crime and the rules for its trial, and the chief place among them was occupied by the Julian Law (Lex Iulia). Under this law every accusation of treason directed against a Roman citizen had to be set forth in a written indictment. A citizen of the Jewish province, it goes without saying, did not enjoy such protection of the law. Standing before the procurator of Caesar, he had no other defense against the improper use of unlimited power save the arguments of justice.

We turn now to the defense. All the Gospels agree that Pilate put to Jesus one and the same question in one and the same words: Art thou the King of the Jews? (Matt. 27:11; Mark 15:2; Luke 23:3; John 18:33), and that after His affirmative answer this Roman came to the paradoxical conclusion that he found no fault in Him (John 18:38; Matt. 27:24; Luke 23:14).

In the Fourth Gospel we find a conversation that fully explains this apparent paradox. The affirmative answer of Jesus is striking in its force. Jesus, as all the Gospels show, employed from time to time this powerful manner of expression, particularly in the difficult circumstances of His ministry, or when He touched upon the hidden “mysteries of the kingdom” that He proclaimed, or when His own claims were being called into question. This characteristic of His mode of expression grew ever stronger toward the end of His earthly course. We therefore maintain that the answer in question, though mentioned only in the last Gospel, is necessarily presupposed by all the others, and bears all the internal marks of historical authenticity. This conversation took place in the praetorium, where Jesus may have been held while Pilate conferred with the accusers about whether the present case fell under his jurisdiction. Now Pilate summoned his Prisoner into the inner part of the praetorium and put to him a sudden question: Art thou the King of the Jews? (John 18:33). Jesus answered: “Sayest thou this thing of thyself, or did others tell it thee of me?” (John 18:34), and this answer does not express a desire to know what had been said by the Jews in His absence, but carries a deeper meaning. Its words are equivalent to saying: In what sense do you use this expression? If you speak from yourself—in the sense a Roman would naturally use that word—then I am not the King of the Jews. But if others have told you this about Me, if you have in mind the words of the Hebrew prophets about a king in the sense of the hope of all the world, then they require further explanation. Pilate answers quickly, as a Roman should: “Am I a Jew? Thine own nation and the chief priests have delivered thee unto me: what hast thou done?” (John 18:35). With these words Pilate shifted—and not without skill—the burden of explanation onto the Accused; and He who had kept silence the night before the Sanhedrin and had given no answer even now to the false charges brought against Him, immediately answered openly to the pagan official who wished to know the truth in this matter: “My kingdom is not of this world: if my kingdom were of this world, then would my servants fight for me… but now is my kingdom not from hence” (John 18:36). Considering these memorable words, we will examine them solely from the historical, and in particular the judicial, point of view. Whatever significance these words may carry in other respects, in substance and in form they constitute a defense. Although they contain a veiled declaration by the Accused of His royal dignity, they nonetheless express a desire to define more precisely the nature of that kingdom whose claim constituted the subject of the accusation. They appear to acknowledge that a kingdom of this world would be a legitimate object of prosecution by the deputy of Caesar, but they deny that the kingdom of Jesus can be held against Him. The most significant commentary on these words is the well-known scene when the question of paying tribute was decided—when Jesus, being asked as a Jewish patriot and prophet whether it was lawful to give tribute to Caesar or not, answered: Show me a coin, and having put the deeply significant question about the image and inscription stamped upon it, concluded the discussion with the words: “Render therefore unto Caesar the things which be Caesar’s, and unto God the things which be God’s” (Luke 20:22–25). This circumstance, taken together with the whole present narrative, assures us that an attack upon the Roman power formed no part of the plan of His kingdom, nor of the plan of Christianity. But this decisive saying, addressed to Pilate (like His former resolution concerning the tribute to Caesar), showed that the collision between the kingdom which Jesus was prepared to acknowledge as His own, and that great kingdom of this world (John 18:36) whose representative now stood as His judge, was not inevitable by its nature, even though in practice it might very probably come about. These words would have no meaning if we do not recognize that they establish a separation of spheres in which it is possible for each authority to confine itself and, by confining itself, thereby to avoid mutual collision.

Of the two kingdoms, Christ positively describes only one, defining it in general as a kingdom of this world; this definition is clarified by the indication that in every such kingdom the ruler is able to defend himself by the armed force of his subjects. The other kingdom is defined only by the negation of these characteristics. The effect these words of Christ produced upon Pilate, as subsequent events show, may have persuaded him that the Accused was innocent of any conspiracy against Rome. And yet Jesus spoke of a kingdom—a kingdom in this world, though not of this world—and His words of renunciation of kingship were in substance more kingly than any kingly utterance ever heard by this Roman. With the true tact of a judge, the governor then touches upon the very point that needed to be drawn out of negative obscurity into clear affirmation.

Art thou a king then? (John 18:37)—he asked the Prisoner whose kingdom was not of this world. And just as before in response to the adjuration of the high priest, so now in response to the question of the representative of earthly majesty, there came the answer that wrought a decisive transformation in world history: Thou sayest that I am a king (John 18:37).

He who spoke thus with the Roman governor knew that by these words He was mounting Himself upon the cross, and that the few hours that followed would be the last of His destiny-laden life. And this thought presented itself to His mind, for He deliberately added: “To this end was I born, and for this cause came I into the world, that I should bear witness unto the truth” (John 18:37). Whatever other meaning may be contained in words so great, this witness to the truth certainly already included the witness He had previously borne when He “witnessed before Pontius Pilate a good confession” concerning the existence of a kingdom that is true and real, though not of this world. But this addition to His earlier words carried a deeper meaning than a mere affirmation of the existence of a spiritual kingdom separate from the worldly one. It proclaimed the existence of that which serves as the foundation of all human virtue and justice, but which in recent centuries had become alien to Roman ears—the existence of an eternal world of truth outside of man, a universal divine order of things standing above every local or national tradition, and certainly above all human beliefs and desires. Over this objective truth men have no power: their highest privilege is to acknowledge and confess it. And it is acknowledged by one who already has a kindred affinity with this central truth—by everyone who is of the truth. The last words of Him who now asserted His right to the dignity of both witness and king of this great realm of truth were: “Everyone that is of the truth heareth my voice” (John 18:37).

“Pilate saith unto him: What is truth?” (John 18:38). This empty question, half-sarcastic, half-contemptuous, but wholly skeptical, we will explain later; for now let us follow the actions of the judge. Not waiting for an answer to the question that had happened to cross his mind, Pilate turned again to the accusation and the Accused. All the accounts agree that Pilate formed and expressed the conclusion that he found no fault in the Accused (Matt. 27:24; Mark 15:9; Luke 23:14; John 18:38). The last Gospel states explicitly that this public expression of his conviction was made by Pilate at precisely that juncture in the conversation and defense to which we have now arrived. However that may be, this was the only defense which, as is known, the Accused offered throughout the entire trial; and Pilate immediately went out of the praetorium and declared his verdict, perhaps even from the judgment seat. But this pronouncement, as it afterwards appeared, was only the first step in that continually accelerating movement of weakness so well known in the world—a movement that begins with irresolution and mildness, then passes by turns through all the subsequent degrees of self-justification and the desire to accommodate, through persuasion, wavering, protest, and compromise, through superstitious fear, the struggle of conscience, wary duplicity, until it arrives at complete moral cowardice. This Roman has remained forever the type of the unjust judge who decides cases “against his own better judgment.” We need not dwell at length on certain points of this Gospel narrative. That entirely historical circumstance whereby the judge, catching at the mention of Galilee and ascertaining that the Accused was a Galilean (and therefore belonged to Herod’s territory), sent him to Herod, may be noted only in passing. The word used here is ἀνέπεμψεν (remisit, remitted), which appears to have been a specific technical term denoting the return of an accused to the court to which he properly belongs—which is what occurred here when the Savior was sent from the forum apprehensionis (the court of the place of arrest) to the forum originis (the court of the place of origin). Herod’s refusal to try Jesus was as prudent as it was courteous, given the points of the accusation. Not only a Roman citizen, but even a provincial subject accused of high treason was required to be tried before Caesar’s court (Acts 25:10). The Idumean “fox” (that is, Herod), who feared the claws of the lion, very graciously exchanged courtesies at this juncture with the lion’s deputy. At the second appearance of the Accused before the governor’s tribunal, what became increasingly evident was: the ever-growing weakness of the judge and the intensified pressure upon him from the accusers. The morning message from his wife troubled his conscience, but did not purify his heart. Pilate now agreed, having scourged Him, to release Him (Luke 23:22)—that is, to tear an innocent man with the heavy Roman lash! The Jewish accusers rejected this compromise; and Pilate (a most characteristic trait in him), having apparently already resolved to send Him to the cross, tried to appeal to the compassion of the accusers and to extricate himself from the affair. He washed his hands and uttered the utterly empty words: “I am innocent of the blood of this just person” (Matt. 27:24). After the scourging, three evangelists mention only the mockery inflicted by the crude Roman soldiers upon Jesus, who had been delivered into their power as a Jewish traitor to their emperor. But the last evangelist inserts a series of events which, as before, he describes with striking vividness and irresistible truthfulness. He alone mentions the utterance — Behold the man (John 19:5)—by which the procurator, torn by intense inner conflict and remaining “unrighteously just” through his “unbelieving faith,” sought to move the Jewish crowd. He alone also mentions the accusers’ reply: “We have a law, and by our law he ought to die, because he made himself the Son of God” (John 19:7)—a reply entirely consistent with the account of the Jewish trial found in the three synoptists but omitted by John. He mentions the unexpected yet very natural effect of this declaration upon the governor, who was already under the strong impression of the earlier words of the “King who came into the world” (John 18:37). “Whence art thou?” (John 19:9)—he asks almost with trembling. But from the very first moment that his wavering began, Jesus had ceased to answer him. He is silent now as well. And Pilate at precisely this moment, when according to the evangelist he was the more afraid (John 19:8), adopts that rough tone which less precise secular historians describe as his characteristic manner: “Speakest thou not unto me? knowest thou not that I have power to crucify thee, and have power to release thee?” (John 19:10). Jesus breaks His silence with a final word of reply that is of great importance to us: “Thou couldest have no power at all against me, except it were given thee from above: therefore he that delivered me unto thee hath the greater sin.”

Let us note here first the extraordinary restraint and near-compassion with which the Sufferer judges His judge. The words “thou couldest have no power (ἐξουσία) … except it were given thee from above” relate to the preceding acknowledgment of the kingdom of this world (κόσμος) (John 18:36), in which men must render unto Caesar the things that are Caesar’s (Mark 12:17); while to this acknowledgment they add the clearly expressed idea (developed in detail afterward by the apostles) that this earthly kingdom with its earthly affairs also has its origin from above. The powers that be are ordained by God. Pilate, who did not know this, abused his great and lawful authority partly through pagan ignorance; and to that extent he was less guilty than the false accusers who sat in Moses’ seat. It is not surprising that these words aroused in the judge a last effort to save himself from his own weakness, but it was already too late. The Jewish hierarchs had by now fully measured this man’s moral weakness, and their final argument was skillfully calculated to suppress in him the last remnant of conscience: “If thou let this man go, thou art not Caesar’s friend: whosoever maketh himself a king speaketh against Caesar” (John 19:12). Few utterances carry greater historical significance than this last declaration of the Jewish scribes. To understand its full force, we must recall that Caesar, as we have already explained, concentrated in himself all the public offices of the republic, so that treason against the state and treason against him had become nearly synonymous. The old Roman vigilance in suppressing attempts against Rome had now acquired new strength, transformed into the jealous personal suspiciousness of a despot. It was no accidental turn of phrase that the cunning Jewish politicians, instead of saying “whosoever maketh himself a king speaketh against” the majesty of the Roman state, preferred the expression: “whosoever maketh himself a king speaketh against Caesar” (John 19:12). Long before this period, though still in the reign of Tiberius, the latter kind of offense had become the most deadly to life. Some of the accusers must have remembered the earlier days of the dynasty, when Julius and Octavian themselves had successfully perpetrated the trampling of the rights of “the majesty of the republic,” and when the Jews, having shown their devotion to them during that great upheaval, had earned the title of “friends of Caesar,” which subsequently acquired the status of an honorific. And all of them must have known that while the first emperor had extended the treason law by establishing penalties for pamphlets against his own person, Tiberius—distinguished beside his zeal for despotism by a terrible suspiciousness—employed the “laws of majesty” (leges maiestatis) against all who failed to show servility toward himself personally, even if they said nothing against him (ἀντιλέγειν) and did not espouse the rival claims of others hostile to Caesar. The great Roman historian notes that even before the time when Pilate was sent to Judea, the provinces, appearing before Tiberius with complaints against their proconsuls, took care to add to the usual accusations of extortion a charge of treason.

To Pilate, who depended personally upon the emperor’s favor—a favor seemingly first obtained through Sejanus, who had lost power around this very time—all this must have presented itself constantly and inescapably, the more so because he had already earned the hatred of his province and feared its vengeance. His fears were not without foundation. Tiberius was still on the throne when, a few years later, Pilate was removed from office, and envoys from Palestine, trusting in the proven loyalty of the Jews to the imperial house, were sent to Rome to lodge complaints against the recalled and deposed governor. The shadow of that distant day paralyzed Pilate on this present morning. What if, being accused before Caesar of extortion and bloodshed—knowing himself all too well to be guilty of these crimes—he should read in the eyes of his stern master that this new accusation had been brought against him as the crowning addition to all his other offenses? And so he, who had so long stood firm against all other arguments, immediately yielded before the carefully calculated words: “If thou let him go, thou art not Caesar’s friend: whosoever maketh himself a king speaketh against Caesar” (John 19:12). He mounted the tribunal—the only place from which a Roman judge could lawfully pronounce a final sentence (in the present case the tribunal was apparently a portable seat brought out from the praetorium and placed before him on the “lithostroton,” or stone pavement). But even here he gave vent to his bitter feelings, addressing the accusers with the words: “Shall I crucify your King?” (John 19:15). But when the chief priests gave their decisive answer—“We have no king but Caesar” (John 19:15)—the judge turned to Him who claimed the right to another kingdom, and with the words “ibis ad crucem” (Thou shalt go to the cross), he delivered Him to be crucified.

“Was Pilate right when he crucified Christ?” — a question that sounds very strange to the ears of an Orthodox reader, and indeed to any educated person who respects the principle of so-called freedom of conscience, since it would seem to admit of only one answer—a negative one. “If that principle be rejected,” says John Stuart Mill, “we may then approve of Marcus Aurelius and other persecutors of Christianity; we may even go further and justify Pontius Pilate.” And yet there appeared a bold critic who did not hesitate to launch a vigorous attack on the principle of freedom of conscience and undertook the task of vindicating Pilate. Let us examine the argumentation of this advocate of Pilate—the Englishman Stephen.

He begins with the supposition (advanced by him as the first) that Pilate might have honestly believed that his course of action was necessary for the preservation of public order in Palestine. Such a supposition is entirely arbitrary. We will touch later upon the question of whether he can be acquitted of the charge of condemning a man whom he considered innocent; for now we will say that we find not the slightest foundation for the supposition indicated. By the unanimous testimony of the evangelists, he expressed clearly his conviction of his Prisoner’s innocence, knew that He had been delivered out of envy (Matt. 27:18; Mark 15:10; Luke 23:4, 14, 22; John 19:4–6), spoke of the Jews and their King with mockery and contempt, and finally yielded to those unreasonable popular outcries (vanae voces populi) against which Roman law itself forewarned him—and yielded only when his personal interests began to be endangered. It is remarkable, however, that the Christian accounts that record the history of these events display no hostility toward Pilate. Jewish and other writers, speaking of this governor’s character, portray him as a man who was avaricious and unjust. Christian historians did not take pains to describe his moral character in precise detail: they speak of him only in passing as they describe his actions, which, however, were such as might have aroused the deepest indignation against him.

And yet these incidental sketches of Pilate’s personality present the governor as a man of delicacy and even gentleness, so that the accusatory portrayal of him in Philo and Josephus resembles what looks like a crude, vengeful caricature.

Those who know the pressure of public opinion will understand the inner struggle that took place on that morning in the soul of the sixth procurator of Judea; they will appreciate the high impartiality with which this struggle was described by the friends of the Prisoner whom he crucified; they will also understand the reasons for Pilate’s wavering. And yet they will not advance the supposition that he for even a single moment thought that his decision served the purpose of preserving peace in the province—for such a supposition, as stated, has not the slightest historical foundation.

We turn to the other positions of the critic who defended Pilate. That a judge, even if he were not a military governor sent from Rome with unlimited authority, could and should have put to death a man who openly and deliberately incited rebellion—no one will dispute this. Neither Mill nor any other defender of freedom would question the duty of government to preserve public order. But there arises a serious question as to whether a governor, whether sitting or not sitting in a judicial capacity, was obliged to put to death a man who personally, in his conviction, harbored no designs against public order, but who in fact was dangerous to that order. In resolving this question it is necessary to bear in mind the distinction between judicial and administrative authority. The question thus divides into two: a) could Pilate, as governor of the province, consign to exile or even to death an innocent man for the preservation of order in the province; b) could he do anything of the sort while sitting (as in the present case) in a judicial capacity and investigating whether a certain man was guilty of the crimes of which he was accused? Only the latter question is of importance to us, because Pilate acted here in a judicial capacity. There is a story about a judge who said to a prisoner in the dock: “I am sentencing you to death not at all because you robbed this house, but in order that other men may not rob other houses in the future.” That judge, if he truly existed and pronounced such a sentence, simply committed judicial murder. This was the position of Caiaphas (not Pilate) when he judged it expedient that one man should die for the people (John 18:14). But neither Pilate nor even Caiaphas proved the utility of the execution by any immediately threatening outbreak of popular passions or any danger to public order. In practice no such imminent danger existed.

The final argument in favor of the Roman governor—the only argument that can carry any historical weight and bears upon the great question of freedom of conscience or the suppression of freedom of opinion—the English advocate of Pilate sets forth in the following propositions:

“It was Pilate’s duty to maintain public peace and order in Judea and to protect Roman rule. It is quite impossible to argue seriously that he, or anyone else in his position, was bound to recognize in the man brought before him for trial—I do not say an incarnate God, but a teacher and preacher of a higher form of morality and a more durable form of social order than those of which he himself was the representative. For a man in Pilate’s position, the morality and social order of which he was himself the representative were the absolute standards for all practical purposes.”

We shall see presently whether this was the theory maintained by Roman law. But the author presents his theory as universal and true, as one against which it is supposedly difficult to argue seriously. Let it be so. The examination of this theory does not fall within our inquiry, however much it contradicts our views. But it is precisely here that it is appropriate to point out that the Accused in His defense went directly against such a theory. His speech about His kingdom—that is, about the higher and dominant “form of moral and social order” which He was establishing in the world and which differed from the power of Rome—already pointed of itself to the duty of acknowledging that kingdom. But when this speech was further reinforced by a reference to the truth for the confession of which men are born into the world, then the Defender thereby stated directly that truth, and not any social order or faith handed down by tradition, should serve as the “final and absolute standard.” And the last words addressed to Pilate pointed to the duty of every man in his position to acknowledge the teacher of this higher order of things and of extra-worldly truth. “Everyone that is of the truth heareth my voice” (John 18:37). Those who deny in general the authenticity of the Gospel of John, and in particular do not accept as accurate the account of this conversation, are nonetheless unable to deny the fact that this was precisely the position adopted by Christianity in history. Christianity claimed not only that it is a higher form of morality and religion among other such forms, but that it is the true religion in the sense both of its universality and its binding obligation.

And the empire, which might have left Christianity unnoticed so long as it presented itself merely as a higher form of morality or even social order, could not fail to notice it once it declared itself as universal and obligatory. When it claimed to be the truth, Rome’s first question was: “What is truth?” When it then insisted on the right of truth to claim the allegiance of men, Rome answered with persecution. And Christianity, meanwhile, persistently and constantly preached the obligation of every member of the state—whether clothed with authority or not—to acknowledge this truth, to bear witness to it, and if need be to die for it. We can now understand the interest that Pilate’s question about truth has always aroused in researchers. That question was the expression not of a philosopher or a statesman, but simply of the typical “phrase of the educated Roman of that time.” And precisely because this was so, the question “What is truth?” reveals to us that inclined plane down which the powerful Roman world was then irresistibly sliding toward the abyss. The Roman republic—we must never forget this—had already ceased to believe in its own moral and social order. This fact is beyond doubt, but its great significance is too rarely acknowledged. One is sadly reminded of Greece with her pursuit of ideal truth—a bold and fruitless pursuit, never ending, always beginning anew, passing through deserts of doubt and seas of speculation under the guidance of unreliable guiding stars. The Greeks had been succeeded by a race more great—the greatest the earth had known—a race called and prepared throughout long centuries for the labor of ruling the world, but struck by inner impotence through lack of impulse and hope, at the very moment when the world’s inheritance was placed in its hands. The condition of the Roman of that day is vividly depicted by one English poet in the following portrait: “In his cool hall, with haggard eyes, the Roman noble lay; he drove his coursing car along the Appian road today; he feasted, drank deep and crowned his hair with flowers: but the laggard hours would not pass.” (Matthew Arnold)

Men had been seized by that moral weariness and satiety with life which persisted throughout the entire period of the empire, and which often passed into a deadly apathy or unreasoning despair. This cheerless moral disposition of the ruling race was the inevitable result of the new circumstances into which fate had cast it. In earlier days the Roman believed in himself, in his gods, in his institutions, and above all in his state. It was for him a theatrum satis magnum (a sufficiently great theater), his banner, his law, his righteousness. He was just, though in a stern, unrelenting manner. But now the world had grown in breadth. And what had been sufficient for virtue in former times had become insufficient for virtue now. The faith of a locality, the religion of a tribe, had become too narrow for the world; it of necessity fell away, leaving the masters of the earth with strong hands and empty hearts—skeptics toward truth and therefore falling away from the righteousness of the law.

That this was already the state of affairs in the reign of Tiberius is acknowledged by historians, and it is understandable that it was very unfavorable to the reception of the principles of the higher moral and social order brought by Christianity. It would be quite unjust and harsh to demand that Pilate or Pliny or any Roman official should renounce a higher standard of morality approved by his own conscience, simply because his state believed in a lower one. But it would be still harsher to demand that such an official should renounce this higher morality or religion after he and his state had already ceased to believe in the lower variety thereof. And the greatest misfortune in such circumstances for a judge would be his duty to erect a systematic persecution against convictions demonstrably superior, merely in order to suppress in the bud any revolt against an established creed in which he and all around him had begun to doubt. Perhaps nothing arouses greater revulsion in the human spirit than a state persecuting a faith which it has itself already begun to lose. And yet such phenomena were most likely to occur—and did occur—in this period.

In examining the question of “whether Pilate was right when he crucified Christ,” we will set aside all the circumstances that aggravate his guilt in the present case. Let us suppose that Pilate and the Romans of his time still believed in the ancient religion of Rome, that Jesus was by birth a subject of that city, and that the law of that city required the prosecution of all religious convictions hostile to its ancient faith.

What in such circumstances was “the duty of a man in Pilate’s position?” We answer that he was obliged—having first taken measures to preserve order in his province—rather to refuse obedience to the law and resign his office than to violate that principle of conscience which has a deeper foundation than the social superstructures erected by the state. But this leads us to the final question of what the law of Rome required in a case such as the trial of Jesus Christ.

The limits of this treatise compel us to give only a general answer to this question and to forgo references to sources. It is well known that the policy of Rome as a conquering power toward the religions of conquered states was a policy of toleration. But by this one should understand little more than that existing religions were tolerated in the places where they held sway. From the fact that the worship of Serapis or Isis was tolerated on the Nile, just as monotheistic worship was tolerated in Judea, it by no means follows that either of these was a permitted religion (religio licita) on the banks of the Tiber. Even if such a religion had been permitted on the Tiber, exclusive devotion to it was tolerated only in natives of the country from which it originated, and was never permitted to Roman citizens.

For all of them, throughout the entire extent of the world, the ancient Roman religion was obligatory; and for other peoples the religion of the Tiber, though not obligatory, was the dominant one. The concessions made to the provinces in regard to their religions were, strictly speaking, concessions and not concordats. Accordingly such a concession was bounded by the rule: cuius regio, eius religio (whose the territory, his the religion). A local cult outside the country or province where it held sway had no rights to public expression or to gaining new adherents, and was condemned to a passive and private existence. These general remarks explain some of the differences in Rome’s attitude toward the Jewish and Christian faiths. The ancient Jewish religion had the paradoxical character of being on the one hand a national or local religion, while on the other hand asserting the right to be the exclusively true religion. The combination of these two qualities explains why the Romans with full conviction attributed to it a hostility toward the human race. This misunderstanding was naturally incurred by a faith which declared the beliefs of all other peoples to be false, but did not invite them to share in its own gifts. Yet the very lack of aggressiveness in Judaism saved it from conflicts. When Christianity appeared, Rome was confronted with an entirely different problem. Christianity not only asserted the right to exclusive truth, but rose against any limitation of itself within whatever boundaries. By its very nature it was aggressive, everywhere seeking adherents; it demanded to be received by all people—Romans and Greeks, barbarians and Jews. What was the result? In substance, the Romans treated Christianity as a crime, but acted on this inconsistently and by fits and starts. It was prosecuted in general as a form of atheism. Such sporadic persecution was not grounded in any particularity of Christianity’s nature, nor was it driven by any strong aversion to it as a form of worship or belief. Christianity was persecuted in general as a form of atheism or opposition to the dominant religious institutions. And opposition to it on these grounds was prescribed and carried out by some of the greatest, wisest, and in a certain sense the most tolerant of emperors. Trajan and Antoninus were wise and magnanimous monarchs. There was little in Christianity that could repel, and much that could attract such men. They were not superstitious; those around them were generally skeptics. They did not believe in an absolute or universal truth in matters of religion; but they did believe in the supreme authority over the world and in the world primacy of the Roman state. As a result, while protecting in Egypt, Palestine, and Italy all permitted religions (religiones licitae) that proved capable of living at peace with one another without claiming universal dominion, they at the same time directed all the force of the state against the one religion which declared that men are born into the world to bear witness to the truth, and that everyone who is of the truth hears the voice of Christ (John 18:37). This history admits of no explanation other than the recognition that the fundamental law of Rome reserved to the state the right on the one hand to establish and permit, and on the other hand to suppress and prohibit, the public expression of new religious convictions, the public existence of a new faith. And this right was recognized as an essential part of the maiestas, or sovereign authority, of the state.

So it was in the days of Tiberius, and so it was in the time of Domitian’s juridical reign of terror (terreur juridique). Pilate, as the deputy of Tiberius, was apparently persuaded that the claim of Jesus to be “Christ the King” did not contain any assertion of a temporal sovereign dominion. The Accused had told him directly and clearly that His kingdom was not of this world (John 18:36). But this assurance meant at the very least that His kingdom would be the religion which He had undertaken to found. It meant more. A religion that presents itself in the form of a kingdom with a king and his servants who do not fight for him (John 18:36)—however little it may be “of this world”—is destined to be not only a religion but also a Church: a community of faith. A universal religion which demands first of all personal faith, but immediately adds to it the obligation to confess and spread that faith, is already (even by Protestant definition) a Church—that is, a union of faith. The defense of Jesus had already drawn attention to this point with the same force with which His disciples pointed to it in the first centuries of Christianity. It was pointed to—or at least always kept in view—by the persecutors of Christians, who accused the latter of treason against the state. Renan perhaps went too far when he maintained that the Roman laws against unlawful associations or sodalities were the fatal root of all persecutions. He went even further when he tried to prove that these laws were the sole instrument by which those persecutions were launched and juridically justified. In reality they were branches rather than the root. It is beyond doubt that the laws governing the activity of associations (collegia) and suppressing all unlawful associations were from their very inception closely connected with the majesty (maiestas) of the state, and in particular with its right to establish and maintain religion. These two laws were most closely connected both in theory and in practice. The intention of Jesus to found merely a universal religion might no doubt in practice have come into conflict with the aforesaid Roman law on associations. But His intention to found this religion in the form of a kingdom—though not of this world—to found “an association within the state that stands outside the state,” as Renan expresses it—was by its very nature incompatible with the fundamental idea of the law on associations. In a word, Christianity was incompatible with Roman law—and not only because its content differed from the content of the ancient religion of Rome, but also because the demand of Christianity that it be received and publicly professed by all people brought it into collision with the unlimited and self-tolerating-of-no-contradiction sovereign authority of the Roman state. On these very points the said law came into conflict with the Founder of Christianity. From this it does not of course follow that Pilate, as an executor of Roman law (assuming that he understood the existence of this religious conflict as clearly as he understood the absence of any civil conspiracy here), was obliged to condemn Jesus. The highest official—as Trajan explains in his famous letter to the governor of Bithynia—was bound to be guided by his own discretion when dealing with persons who violated the law concerning religion. Pilate apparently sincerely believed that Jesus was both right and harmless; but while believing this, he erred in that he withdrew from his first verdict and delivered innocent blood. But when in the end he sent Him to the cross, he did so on the grounds that Jesus had declared himself a King, and on the basis of the original accusation that Christ had acted against the majesty of the Roman people (adversus maiestatem populi romani). Whatever the Roman judge may have thought, the claim made by Christ regarding His right was incompatible with the prerogatives of that state whose representative Pilate was.

Thus, the examination of this most famous of all legal cases from a purely juridical and purely formal point of view leads to the following conclusions: in this case two proceedings took place, and both were conducted with some observance of the forms prescribed by the two most celebrated jurisprudences in the world. In both courts the judges were unjust and the trial was conducted in bad faith; yet in both the external formal procedure was observed, and the result was one and the same. Jesus Christ was condemned on the basis of a double charge of treason against the state: He died because before the religious council He had proclaimed himself the Son of God and the Messiah of Israel, and before the worldly, secular tribunal He had proclaimed himself Christ the King.