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.

CHAPTER IV

MODE OF TRIAL IN ROMAN CAPITAL CASES

THE reader should keep clearly and constantly in mind the purpose of this chapter: to describe the mode of trial in capital